BIA Holds That The U.S. Supreme Court’s Construction Of “Physical Force” in Johnson v. United States, 559 U.S. 133 (2010) And Stokeling v. U.S., 139 S. Ct. 544 (2019) Controls Its Interpretation of 18 U.S.C. §16(a), Which Is Incorporated By Reference Into INA §237 (a)(2)(E)(i); The Court’s Construction of Physical Force In U.S. v Castleman, 572 U.S.157 (2014) Is Inapplicable In This Context. Because Misdemeanor Domestic Abuse Battery With Child Endangerment Under Louisiana Statutes §14:35.3(I) Extends To Mere Offensive Touching, It Is Overbroad With Respect To §16(a) And Therefore Is Not Categorically A Crime Of Domestic Violence Per INA §237(a)(2)(E)(i).
On April 28, 2022, the Board of Immigration Appeals (BIA or Board) sustained Respondent’s appeal of the order of an Immigration Judge (IJ) finding him removable for having been convicted of a crime of domestic violence under INA §237 (a)(2)(E)(i) and terminated removal proceedings. Under Louisiana law, the “force or violence” element of domestic abuse battery is satisfied by a mere offensive touching. Applying the categorical approach to decide whether the statute criminalizes unlawful contact below the level of “physical force” as that term was defined by the U.S. Supreme Court in Johnson v. U.S., 559 S. Ct. 133 (2010) and Stokeling v. U.S., 139 S. Ct. 144(2019), the BIA concluded that the Louisiana law does not categorically require “physical force” as required by Johnson and Stokeling and such a conviction is therefore not a crime under the INA.
Respondent, a lawful permanent resident, was convicted of misdemeanor domestic abuse battery with child endangerment in violation of Louisiana Statutes §14:35.3(I) and sentenced to 2 months imprisonment. Charged with removability by DHS, he admitted his conviction but denied that it made him removable. In a motion to terminate and 2 subsequent motions to reconsider, Respondent claimed his conviction was not a cause for removal under §237(a)(2)(E)(i). The IJ disagreed and denied his motions but granted his §240A(a) cancellation application. As stated, Respondent appealed; DHS did not cross-appeal the cancellation grant. After receipt of Respondent’s initial brief, both parties submitted briefs addressing whether §14:35.3(I) is categorically a crime of domestic violence, a question the Board reviewed de novo.
The decision began with a discussion of statutory context, noting that a “noncitizen is removable if at any time after admission, he or she has been convicted of ‘crime of domestic violence’.” Such an offense is defined as any crime of violence committed by a perpetrator who has a specified domestic relationship with the victim. Under §237(a)(2)(E)(i), DHS must show both that the statute of conviction is categorically a “crime of violence” and that the crime was committed by one with the requisite relationship to the victim; the parties did not dispute the existence of the domestic relationship. The BIA thus only considered whether the Louisiana law categorically defined a “crime of violence” within the meaning of §16(a).
Under this approach, the Board did not examine the facts of the case and presumed the conviction rested on only the least culpable conduct proscribed by the statute; it then determined whether such conduct, so criminalized, would categorically be a “crime of violence.” Such a crime is defined by §16(a) as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” In Matter of E. Velazquez, 25 I&N Dec.278 (BIA 2010), stated the opinion, the BIA had concluded that the Supreme Court’s decision in Johnson controlled its interpretation of §237(a)(2)(E)(i). Since then, the Supreme Court had also addressed the meaning of “physical force” in Stokeling, as well.
Further, in Johnson, in the context of defining a “violent felony”, the Supreme Court had held that “physical force” means violent force, that is, “force capable of causing physical pain or injury to another person.” As such, explained the Board, misdemeanor crimes such as assault and battery of a family member, reached conduct “that could not be classified as ‘physical force’ under Johnson”, that is, conviction under a statute prohibiting force incapable of causing pain or injury – e.g., an offensive touching – would not give way to a categorical crime of violence and therefore did not categorically define a crime of domestic violence under §237(a)(2)(E)(i).
Subsequently, in Stokeling, the Supreme Court reviewed the Johnson definition. Noting that “force” and “violence” were frequently used interchangeably in the context of common-law robbery (that case examined whether a state robbery statute categorically required proof of “physical force”), Stokeling held that the “physical force” necessary to overcome the slightest resistance of a victim – which is what distinguished robbery from larceny at common law – is sufficient to constitute “violent force.”
In terms of following these 2 cases, the BIA concluded that it must now read Johnson and Stokeling together to assess whether a statute categorically requires proof of “physical force” under §16(a) in determining removability under §237(a)(2)(E)(i); this level of force is not met by a battery statute criminalizing mere offensive touching.
As applied to Respondent, the question thus became whether Louisiana’s domestic abuse battery statute categorically requires proof of “physical force”, as that phrase is used by Johnson and Stokeling. First, the Board determined the level of force required by state law to commit the offense, a pure question of state law on which Louisiana courts’ interpretation of Louisiana law controls. Louisiana courts have stated that simple battery is an element of domestic abuse battery, i.e., domestic abuse battery is simple battery committed by one household member upon the person of another household member. This is a “minimum level of force” which Louisiana Courts have found may include even the “most trifling or ‘merely offensive’ touching.”
Finally, the BIA compared this level of force to the definition of “physical force” established in Johnson and Stokeling. Under Johnson, if a statute criminalizes mere offensive touching, it cannot categorically be a crime of violence. Thus, concluded the decision, domestic abuse battery under §14:35.3(I) does not categorically require “physical force” within the meaning of §16(a), Respondent’s conviction was therefore not categorically a crime of violence under that section, and it thus is not a conviction for a crime of domestic violence under §237(a)(2)(E)(i). Removal proceeds were terminated. Matter of Dang, 28 I&N Dec. 541 (BIA 2022).
