VELASQUEZ

Cite as 25 I&N Dec. 278 (BIA 2010) Interim Decision #3687

Matter of Julio E. VELASQUEZ, Respondent

File A094 038 330 - Arlington, Virginia

Decided July 16, 2010

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

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).

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

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 hold

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that 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 of 10 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:

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(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 of the 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

1

Contrary to the respondent’s argument on appeal, the statute under which he was convicted

is sufficiently clear with respect to the “domestic” status of the protected victim. See Va.

Code Ann. § 16.1-228 (2004) (defining “family or household member”). In regard

to whether the victim is a “protected” person within the meaning of section 237(a)(2)(E)(i)

of the Act, we note that it lists a broad class of victims, including current or former spouses,

parties with a child in common, individuals currently or formerly cohabiting as a spouse,

individuals similarly situated to a spouse under the domestic or family violence laws of the

jurisdiction where the offense occurs, or any other individual who is protected from the

perpetrator’s acts under the domestic or family violence laws of the jurisdiction. Virginia’s

definition of a “family or household member” includes both those who fit within the most

restrictive definition of family members (such as spouses) and others, such as cohabitants

and individuals who recently cohabited, who fit within the broad list of protected individuals

(continued...)

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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.

(...continued)

in section 237(a)(2)(E)(i). Moreover, we note that the domestic or family relationship need

not be an element of the predicate offense to qualify as a misdemeanor crime of domestic

violence under this section. See United States v. Hayes, 129 S. Ct. 1079 (2009).

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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

intentional use of “violent force.” Johnson v. United States, 130 S. Ct. at

1271.

Finally, the Court specifically acknowledged that many generic domestic

battery statutes do not require as an element the intentional use of violent

force. The Government argued that because of this, a ruling that “violent

force” is required under the ACCA would make it more difficult to obtain

removal orders under section 237(a)(2)(E)(i) of the Act, which is the very issue

in this case. The Court acknowledged the difficulty but stated that in such

cases, recourse must be had to the modified categorical approach. In response

to the Government’s argument that the type of conviction records allowed

under the modified categorical approach are often incomplete (and thus silent

on the precise nature of the “force” used to sustain a conviction), the Court

stated that the “absence of records will often frustrate application of the

modified categorical approach—not just to battery but to many other crimes

as well.” Johnson v. United States, 130 S. Ct. at 1273. Moreover, the Fourth

Circuit recently applied Johnson to reverse a conviction under 18 U.S.C.

§ 922(g)(9) for possession of a firearm after having “been convicted in any

court of a misdemeanor crime of domestic violence,” holding that section

18.2-57.2(A) of the Virginia Code Annotated includes nonviolent force, such

as an offensive touching, and that “violent force,” as required in Johnson,

is not an element of assault and battery under Virginia common law.

United States v. White, 606 F.3d 144 (4th Cir. 2010).

The DHS argues in its supplemental brief that Johnson does not control the

outcome of this case because the Court’s decision was limited to the question

of what constitutes a “violent felony,” and because the Court specifically

endorsed the use of the modified categorical approach to determine whether,

in the immigration context, an offense is a crime of domestic violence.

However, the DHS argument overlooks both the Court’s specific endorsement

2

The ACCA does not, as does 18 U.S.C. § 16(a), reach crimes against the property

of another. Because it is not necessary to address whether “violent” force would be required

for property crimes as well as for crimes against the person, we do not resolve that issue

in this case.

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of the Seventh Circuit’s decision in Flores and its clear statement that resort

could be made to the modified categorical approach. Had the Supreme Court

determined that its ruling in Johnson did not apply outside the context of the

ACCA, it could have responded to the Government’s specific arguments

regarding immigration cases, and to those of the dissent,3 by so limiting its

ruling. Instead, it fully engaged those arguments and left no room for the

Government to contend that 18 U.S.C. § 16(a) can be satisfied with proof

of anything less than “violent” force. Only Congress can address whether the

categorical approach should be required to establish deportability in these

circumstances.

Accordingly, in regard to crimes against the person, we conclude that the

“physical force” necessary to establish that an offense is a “crime of violence”

for purposes of the Act must be “violent” force, that is, force capable

of causing physical pain or injury to another person. The key inquiry is not the

alien’s intent for purposes of assault, but rather whether battery, in all cases,

requires the intentional use of “violent force.” An offense cannot therefore

be classified as a “categorical” crime of violence unless it includes

as an element the actual, attempted, or threatened use of violent force that

is capable of causing pain or injury. The crime of assault and battery

in Virginia does not contain such a requirement.

For the reasons discussed above, an assault and battery conviction under

section 18.2-57.2(A) of the Virginia Code Annotated does not, in all cases,

require the use, attempted use, or threatened use of violent physical force

under 18 U.S.C. § 16(a). Consequently, the respondent’s offense is not

categorically a crime of violence and therefore not categorically a crime

of domestic violence under section 237(a)(2)(E) of the Act. Thus, the

modified categorical approach must now be applied. See Johnson

v. United States, 130 S. Ct. at 1273; United States v. White, 606 F.3d at 155;

see also, e.g., Matter of Milian, 25 I&N Dec. 197, 199-200 (BIA 2010)

(discussing documents that may be considered in applying the modified

categorical approach). The record will therefore be remanded for

consideration of evidence regarding whether the offense constitutes a crime

of domestic violence under the modified categorical approach.4 Accordingly,

3

The dissent in Johnson clearly foretold the result here. It explained that the analysis

regarding “violent force” in Johnson would be applicable in the context of domestic violence

and noted that the outcome of this approach would be that “many convicted spousal and

child abusers will escape removal, a result that Congress is unlikely to have intended.”

Johnson v. United States,130 U.S. at 1278 (Alito, J., dissenting).

4

Analysis under the modified categorical approach must include an assessment of whether

the respondent was convicted of intentional, as opposed to reckless, use of violent force.

Garcia v. Gonzales, 455 F.3d 465 (4th Cir. 2006).

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the respondent’s appeal will be sustained, and the record will be remanded for

further proceedings.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Judge

for further proceedings consistent with the foregoing opinion and for the entry

of a new decision.

CONCURRING OPINION: Garry D. Malphrus, Board Member, in which

Neil P. Miller, Board Member, joined

I fully concur with the reasoning and the result in this case, which

is controlled by Johnson v. United States, 130 S. Ct. 1265 (2010). However,

because of this approach to section 237(a)(2)(E)(i) of the Immigration and

Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), “many convicted spousal

and child abusers will escape removal.” Johnson v. United States, 130 S. Ct.

at 1278 (Alito, J., dissenting). This is true because in State courts, “many

people who engage in serious spousal or child abuse ultimately are not

charged with or convicted of felonies.” United States v. Hayes, 129 S. Ct.

1079, 1087 (2009). Instead, these domestic abusers are routinely prosecuted

under generally applicable misdemeanor assault or battery laws. See id. The

legislative history behind the relevant provisions indicates that Congress

intended for these perpetrators to face immigration consequences.

See generally Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1138, 1142

(9th Cir. 2006) (Wardlaw, J., dissenting) (discussing congressional intent

to protect victims and punish perpetrators of misdemeanor crimes of domestic

violence in enacting section 237(a)(2)(E)(i) of the Act); Matter of Martin,

23 I&N Dec. 491, 494 (BIA 2002) (discussing legislative history showing that

Congress intended to include a “threatened or attempted simple assault

or battery” in the definition of a crime of violence under 18 U.S.C. § 16(a)).

Moreover, even when the modified categorical approach is applied, which

Johnson permits, the limited conviction records that may be consulted

to “conclusively show that the offender’s conduct involved the use of violent

force” often are not available in these cases. Johnson v. United States,

130 S. Ct. at 1278 (Alito, J., dissenting). Both the majority and dissent

in Johnson recognized the limitations of applying the modified categorical

approach to this crime. Id. at 1273, 1278. Going forward, only Congress can

determine whether the categorical approach and its inherent restrictions

on considering the actual conduct of the offender should apply to convictions

involving domestic violence in immigration proceedings.

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