Matter Of Velasquez

• Decision Date: 16 July 2010
• Docket Number: No. 3687,No. A094 038 330,3687,A094 038 330
• Parties: Matter of Julio E. VELASQUEZ, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

25 I&N Dec. 278

Matter of Julio E. VELASQUEZ, Respondent

No. 3687

No. A094 038 330

U.S. Department Of Justice

Executive Office For Immigration Review

Board Of Immigration Appeals

Decided July 16, 2010

FOR RESPONDENT: John T. Riely, Esquire, Bethesda, Maryland

FOR THE DEPARTMENT OF HOMELAND SECURITY: Rhonda M. Dent, Appellate Counsel; Karen Donoso Stevens, Assistant Chief Counsel

The misdemeanor offense of assault and battery against a family or household member in violation of section 18.2-57.2(A) of the Virginia Code Annotated is not categorically a crime of violence under 18 U.S.C. § 16(a) (2006) and therefore not categorically a crime of domestic violence within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006).

BEFORE: Board Panel: GRANT and MILLER, Board Members. Concurring Opinion: MALPHRUS, Board Member, joined by MILLER, Board Member.

GRANT, Board Member:

In a decision dated May 21, 2008, an Immigration Judge found the respondent removable on his own admissions under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006), as an alien who is present in the United States without being admitted or paroled. The Immigration Judge also pretermitted the respondent's application for cancellation of removal pursuant to section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), finding that he was ineligible for that relief because he had been convicted of a crime of domestic violence. The respondent has appealed from the Immigration Judge's finding regarding his eligibility for cancellation of removal. The appeal will be sustained and the record will be remanded to the Immigration Judge for further proceedings.

This case requires us to determine whether the offense of misdemeanor assault and battery of a family member in violation of section 18.2-57.2(A) of the Virginia Code Annotated categorically qualifies as a crime of domestic violence within the meaning of section 237(a)(2)(E) of the Act, 8 U.S.C. § 1227(a)(2)(E) (2006). In light of the decision of the United States Supreme Court in Johnson v. United States, 130 S. Ct. 1265 (2010), we holdthat because the Virginia statute reaches conduct that cannot be classified as "violent force," the respondent's offense is not categorically a "crime of violence" and thus cannot be classified as a categorical crime of domestic violence for purposes of section 237(a)(2)(E) of the Act. Accordingly, the record will be remanded to determine whether the respondent's offense qualifies as a crime of domestic violence under the modified categorical approach.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of El Salvador who entered the United States at an unknown place and time. On August 18, 2004, he was convicted of assault and battery of a family member in violation of section 18.2-57.2(A) of the Virginia Code Annotated. He was sentenced to a term of imprisonment of10 days and was subjected to certain conditions, including a no-contact order with the victim.

On August 30, 2005, the Department of Homeland Security ("DHS") initiated removal proceedings against the respondent. At his hearing, the respondent filed an application for cancellation of removal under section 240A(b)(1) of the Act. The DHS filed a motion to pretermit the respondent's application, arguing that his conviction was for a categorical crime of domestic violence, which rendered him ineligible for relief under section 240A(b)(1)(C) of the Act. The Immigration Judge granted the motion and ordered the respondent removed to El Salvador.

The respondent appealed from the Immigration Judge's finding regarding his eligibility for cancellation of removal, arguing that he was not convicted of a crime of domestic violence. Subsequent to the decision of the Supreme Court in Johnson v. United States, 130 S. Ct. 1265, we invited the parties to submit supplemental briefs, and both parties did so. We review de novo the Immigration Judge's determination on this question of law. 8 C.F.R. § 1003.1(d)(3)(ii) (2010); see also Matter of Almanza, 24 I&N Dec. 771 (BIA 2009).

II. ANALYSIS

An alien who has been convicted of a crime of domestic violence under section 237(a)(2)(E)(i) of the Act is ineligible for cancellation of removal under section 240A(b)(1)(C). A "crime of domestic violence" means any "crime of violence," as that term is defined in 18 U.S.C. § 16 (2006), that is committed by a specified person against one of a defined set of victims. See section 237(a)(2)(E)(i) of the Act. A crime of violence is defined at 18 U.S.C. § 16 as follows:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The respondent pled guilty to assault and battery under section 18.2-57.2(A) of the Virginia Code Annotated, which states that any "person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor." According to section 18.2-11 ofthe Virginia Code Annotated, a Class 1 misdemeanor under Virginia law is punishable by not more than 1 year in prison. Consequently, for purposes of Federal law, the respondent's offense would be classified as a misdemeanor, not as a felony. See 18 U.S.C. §§ 3559(a)(5), (6) (2006). Thus, because the respondent's offense is not a felony under Federal law, it cannot constitute a crime of violence under 18 U.S.C. § 16(b). See Matter of Martin, 23 I&N Dec. 491, 493 (BIA 2002). Accordingly, our inquiry is limited to whether the respondent's offense has as an element the use, attempted use, or threatened use of physical force against the person or property of another under § 16(a).

Because the Virginia Code Annotated does not define assault and battery, Virginia courts have relied on common law definitions of those crimes. See, e.g., Carter v. Commonwealth, 606 S.E.2d 839, 841 (Va. 2005); Zimmerman v. Commonwealth, 585 S.E.2d 538, 539 (Va. 2003); Clark v. Commonwealth, 676 S.E.2d 332, 336 (Va. Ct. App. 2009). However, Virginia law is clear that "only the offense of an assault and a battery is encompassed within the statute." Va. Op. Att'y Gen. 99 (1997), 1997 WL 767056 (emphasis added). Thus, we must look to the definitions of both assault and battery under Virginia law to determine if, on a categorical basis, they require the use, attempted use, or threatened use of violent force.¹

An assault occurs "when an assailant engages in an overt act intended to inflict bodily harm and has the present ability to inflict such harm or engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim." Carter v. Commonwealth, 606 S.E.2d at 841 (noting the merger of the criminal offense of assault and the tort of assault, which have the same definition under Virginia law); see also Zimmerman v. Commonwealth, 585 S.E.2d at 539 (stating that assault also includes the "unequivocal appearance" of an attempt to do physical injury to another); Clark v. Commonwealth, 676 S.E.2d at 336. There is no requirement that a victim of assault be physically touched. See, e.g., Zimmerman v. Commonwealth, 585 S.E.2d at 539.

A battery under Virginia law is "'the actual infliction of corporal hurt on another... willfully or in anger, whether by the party's own hand, or by some means set in motion by him.'" E.g., Commonwealth v. Vaughn, 557 S.E.2d 220, 222 (Va. 2002) (quoting Jones v. Commonwealth, 36 S.E.2d 571, 572 (Va. 1946)). Unlike assault, battery requires the unlawful touching of another, although it is not necessary for the touching to result in injury to the person. See Adams v. Commonwealth, 534 S.E.2d 347, 350-51 (Va. Ct. App. 2000) (defining touch as to be in contact or to cause to be in contact); Perkins v. Commonwealth, 523 S.E.2d 512, 513 (Va. Ct. App. 2000). Additionally, the "'slightest touching of another... if done in a rude, insolent, or angry manner, constitutes a battery.'" Adams v. Commonwealth, 534 S.E.2d at 350 (quoting Crosswhite v. Barnes, 124 S.E. 242, 244 (Va. 1924)); see also Matter of Sejas, 24 I&N Dec. 236, 238 (BIA 2007). However, whether a touching is a battery depends on the intent of the actor, not the force applied. See Adams v. Commonwealth, 534 S.E.2d at 350.

In Johnson v. United States, 130 S. Ct. at 1271, the Supreme Court held that in order to constitute a "violent felony" under the relevant provisions of the Armed Career Criminal Act ("ACCA"), the level of "physical force" required for a conviction must be "violent force that is, force capable of causing physical pain or injury to another person." See 18 U.S.C. §§ 924(e)(1), (2)(B)(i) (2006). The Court concluded that simple battery under Florida law was not a violent felony because a conviction under the relevant statute may occur when an individual has committed an actual and intentional touching involving physical contact, no matter how slight. Johnson v. United States, 130 S. Ct. at 1269-70.

Since the ACCA's definition of a "violent felony" is, in pertinent part, identical to that in 18 U.S.C. § 16(a), Johnson controls our interpretation of a "crime of violence" under § 16(a).² The Court in Johnson, 130 S. Ct. at 1271, relied on its prior decision in Leocal v. Ashcroft, 543 U.S. 1, 11 (2004), holding that the definitions in 18 U.S.C. § 16 suggest a category of "violent, active crimes." The Court also specifically endorsed the holding of the United States Court of Appeals for the Seventh Circuit in Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003), that in order to constitute an aggravated felony crime of violence, the elements of the offense must require the...