In re Bao Quoc Dang
| Decision Date | 28 April 2022 |
| Docket Number | 4043 |
| Citation | 28 I&N Dec. 541 |
| Parties | Matter of Bao Quoc DANG, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
U.S Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
(1) The Supreme Court's construction of "physical force" in Johnson v. United States, 559 U.S 133 (2010), and Stokeling v. United States, 139 S.Ct. 544 (2019), controls our interpretation of 18 U.S.C § 16(a) (2018), which is incorporated by reference into section 237(a)(2)(E)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(E)(i) (2018); the Court's construction of "physical force" in United States v. Castleman, 572 U.S 157 (2014), is inapplicable in this context.
(2) Because misdemeanor domestic abuse battery with child endangerment under section 14:35.3(I) of the Louisiana Statutes extends to mere offensive touching, it is overbroad with respect to § 16(a) and therefore is not categorically a crime of domestic violence under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i).
FOR THE RESPONDENT: Kenneth A. Mayeaux, Esquire, Baton Rouge, Louisiana
FOR THE DEPARTMENT OF HOMELAND SECURITY: Matthew Sidebottom, Assistant Chief Counsel
BEFORE: Board Panel: CREPPY, LIEBOWITZ, and PETTY, Appellate Immigration Judges.
PETTY, Appellate Immigration Judge:
The respondent was convicted of violating a Louisiana law prohibiting battery of domestic partners. Based on that conviction, an Immigration Judge found him removable for having been convicted of a crime of domestic violence under section 237(a)(2)(E)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(E)(i) (2018). The respondent challenges that finding. We must apply the categorical approach to decide whether Louisiana's domestic abuse battery statute criminalizes unlawful contact below the level of "physical force," as the Supreme Court of the United States defined that term in Johnson v. United States, 559 U.S. 133 (2010), and Stokeling v. United States, 139 S.Ct. 544 (2019). Under Louisiana law, the "force or violence" element of the domestic abuse battery statute is satisfied by a mere offensive touching. We therefore conclude that the statute does not categorically require "physical force" as required by Johnson and Stokeling and is not a crime of domestic violence under the INA. The respondent's appeal will be sustained and his removal proceedings terminated.
The respondent is a native and citizen of Vietnam and a lawful permanent resident of the United States. In 2017, he was convicted of misdemeanor domestic abuse battery with child endangerment, in violation of section 14:35.3(I) of the Louisiana Statutes, for which he was sentenced to 2 months' imprisonment.[1] Based on this conviction, the Department of Homeland Security ("DHS") charged the respondent as removable under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), for having been convicted of a crime of domestic violence.
The respondent admitted the fact of his conviction but denied that it rendered him removable. In a motion to terminate his removal proceedings, and in two subsequent motions to reconsider, the respondent maintained that his conviction was not a predicate for removal under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i). The Immigration Judge disagreed, found the respondent removable as charged, and denied each of the motions. However, the Immigration Judge granted the respondent's application for cancellation of removal under section 240A(a) of the INA, 8 U.S.C. § 1229b(a) (2018). The respondent appealed and maintains that his conviction is not a removable offense. DHS has not cross-appealed the grant of cancellation of removal. Following receipt of the respondent's initial brief, we invited both parties to submit supplemental briefs on whether a violation of the Louisiana misdemeanor domestic abuse battery statute is categorically a "crime of domestic violence" under section 237(a)(2)(E)(i), and both parties did so. We review this question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2021).
A noncitizen is removable if, at any time after admission, he or she has been convicted of a "crime of domestic violence." See INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i). A "crime of domestic violence" is defined as any crime of violence (as defined in 18 U.S.C. § 16(a) (2018)) committed by a perpetrator who has a specified domestic relationship with the victim.[2] Id. In order to demonstrate that a noncitizen is removable under this provision, DHS must show both that the statute of conviction is categorically a "crime of violence" and that the crime was committed by a person with the requisite domestic relationship to the victim. Here, the parties do not dispute the existence of the domestic relationship, so we consider only whether section 14:35.3 of the Louisiana Statutes is categorically a "crime of violence" within the meaning of 18 U.S.C. § 16(a).
We determine whether a criminal conviction is a "crime of violence" under § 16(a), and thus a removable "crime of domestic violence" under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), by applying the categorical approach. See Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (); Matter of Moradel, 28 I&N Dec. 310, 316-17 (BIA 2021). The categorical approach focuses on the elements of the respondent's statute of conviction. See Mathis v. United States, 579 U.S. 500, 504 (2016). As it is well established, we do not examine the facts of the respondent's particular case and we must presume that his conviction rested upon only the least culpable conduct proscribed by the statute. Moncrieffe, 569 U.S. at 190-91. We then determine whether the least culpable conduct so criminalized would necessarily-that is, categorically-be a "crime of violence." See id. If a defendant can be convicted based on conduct that does not fit the definition of a "crime of violence," then the statute as a whole, if indivisible, does not categorically define a "crime of violence" and cannot be the predicate for removal under section 237(a)(2)(E)(i).
A "crime of violence" means "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a). As relevant to this appeal, the key phrase is "physical force." In addition to § 16(a), Congress has employed the phrase "physical force" in at least two other related, but subtly distinct, contexts. First, in the Armed Career Criminal Act ("ACCA"), Congress defined a "violent felony" to be a crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i) (2018) (emphasis added). Second, in what has come to be known as the Lautenberg Amendment, Congress defined a "misdemeanor crime of domestic violence" to be "an offense that . . . is a misdemeanor . . . and . . . has, as an element, the use or attempted use of physical force . . . committed by" an individual who has a specified domestic relationship to the victim. See 18 U.S.C. § 921(a)(33)(A) (2018) (emphasis added).
In Matter of E. Velasquez, 25 I&N Dec. 278, 282 (BIA 2010), we concluded that the Supreme Court's then-recent decision in Johnson, 559 U.S. at 140-a case interpreting the meaning of "physical force" under the ACCA, 18 U.S.C. § 924(e)(2)(B)(i) (2006)-controlled our interpretation of section 237(a)(2)(E)(i). Since then, the Supreme Court has addressed the meaning of "physical force" as it is used in the Lautenberg Amendment in United States v. Castleman, 572 U.S. 157, 168 (2014), and recently returned to the meaning of "physical force" under the ACCA in Stokeling, 139 S.Ct. at 555. In doing so, the Supreme Court has ascribed different meanings to the phrase "physical force" depending on the statutory context in which it is found.
1. Case Law Developments
The ACCA provides for criminal sentencing enhancements for certain felons who have committed three or more "violent felon[ies]." 18 U.S.C. § 924(e)(1). In Johnson, 559 U.S. at 140, the Supreme Court held that, "in the context of [the ACCA's] definition of 'violent felony,' the phrase 'physical force' means violent force-that is, force capable of causing physical pain or injury to another person." Applying this construction of 18 U.S.C. § 924(e)(2)(B)(i), the Court concluded that the defendant's Florida battery conviction, which, under State law, required proof of only the merest offensive touching, did not categorically require proof of violent force, and therefore did not qualify as a violent felony. Id. at 138-43. The Court further explained that applying a definition of "force" derived from the crime of battery, which encompassed mere offensive touching, would have led to a "comical misfit" with the term "violent felony" because at common law battery was a misdemeanor. Id. at 145 (emphasis added). The Court declined to ascribe to Congress an intent to define "violent felony" to include common law misdemeanors. Id. at 141-42.
Four months after Johnson was handed down, we decided Matter of E. Velasquez. Noting that the definition of "violent felony" in 18 U.S.C. § 924(e)(2)(B)(i) was, "in pertinent part, identical" to the definition of "crime of violence" in 18 U.S.C. § 16(a), we applied Johnson's definition of "physical force" under 18 U.S.C § 924(e)(2)(B)(i) to...
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