These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
battery
The Ninth Circuit has determined that. Nevada conviction for felony battery resulting in substantial bodily harm is a crime of violence.
The full text of Villagomez v. McHenry can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/24/23-3558.pdf
The Eleventh Circuit has determined that Georgia’s simple battery statute is divisible between offensive touching (not a crime of violence) and touching causing injury (a crime of violence). The court also declined to give credit to a state court order “clarifying” the petitioner’s sentence to be a probation-only sentence, finding that the sentence was clearly one that involved a suspended term of incarceration.
The full text of Talamantes v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201915080.pdf
The Ninth Circuit has determined that a California conviction for battery resulting in serious bodily injury is a crime of violence under the federal sentencing guidelines. The court determined that the statute criminalizes an intentional use of physical force that results in serious bodily injury. “Because ‘serious bodily injury’ is defined as ‘a serious impairment of physical condition,’ we must [] conclude that a person cannot be convicted under § 243(d) ‘unless he willfully and unlawfully applies force sufficient to not just inflict a physical injury on the victim, but to inflict’ a severe physical injury.”
Given the similar definitions of a crime of violence in the federal sentencing and immigration contexts, this decision could have significant impact in immigration cases.
The full text of United States v. Perez can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/25/17-10216.pdf
The Ninth Circuit has determined that a Nevada conviction for battery with a deadly weapon qualifies as a crime of violence. The court noted that “even the least touching with a deadly weapon or instrument is violent in nature.” The statute at issue prohibits “any willful and unlawful use of force or violence upon the person of another . . . committed with the use of a deadly weapon . . . [that results in] [n]o substantial bodily harm to the victim.” To commit simple battery in Nevada, the “force need not be violent or severe and need not cause bodily pain or bodily harm.” As a result, simple battery in Nevada would not ordinarily be a crime of violence under Johnson’s definition of “physical force.” However, “even the least touching with a deadly weapon or instrument is violent in nature,” because it “demonstrates at a minimum the threatened use of actual force.” Thus, if Nevada law requires actual use of a truly “deadly” weapon, then it is a crime of violence.
”As early as 1870, the Nevada Supreme Court defined objects as ‘deadly weapons’ if they satisfied either the inherently dangerous or the functional test.” Under the inherently dangerous test, a deadly weapon is any instrument that “if used in the ordinary manner contemplated by its design and construction, will, or is likely to, cause a life-threatening injury or death.” Under the functional test, a deadly weapon is any instrumentality that is “used in a deadly manner.” Under these definitions, the Court concluded that any use of a deadly weapon would qualify as a crime of violence.
The Ninth Circuit rejected the argument that a defendant could be convicted for mere possession of a deadly weapon during a battery, as opposed to the actual use of a deadly weapon.
The full text of US v. Guizar-Rodriguez can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/17/16-10507.pdf
The Eighth Circuit has determined that Arkansas convictions for third degree domestic battery and first degree battery are violent felonies because they require the use of violent force. Given the similar definitions of violent felonies and crimes of violence in the immigration context, this decision could have persuasive value in the immigration context.
The full text of US v. Eason can be found here:
The Eighth Circuit has determined that a conviction for second-degree battery with a deadly weapon other than a firearm in Arkansas qualifies as a violent felony. The court rejected the petitioner's argument that the infliction of injury does necessarily require the use of violent force. Given the similarity between the definition of a violent felony and a crime of violence aggravated felony in the immigration context, this decision could have persuasive value in the immigration context.
The full text of U.S. v. Winston can be found here:
In the context of a criminal sentencing case, the Eighth Circuit has determined that a conviction for first-degree batter in Arkansas (Ark. Code. Ann. section 5-13-201) is a crime of violence. The court noted that the statute is divisible, but that subsection (a)(1), which requires the infliction of serious physical injury through the use of a deadly weapon, requires the requisite violent force to be a crime of violence.
The full text of United States v. Thomas can be found here:
In the context of a criminal sentencing hearing, the Eighth Circuit determined that a conviction for second degree battery in Arkansas may qualify as a crime of violence. The statute is divisible, but subsection (a)(4) - which requires intentionally or knowingly, without legal justification, causing physical injury to a law enforcement officer, a firefighter, a correctional facility employee, a school employee, an elderly person, a young child, a state officer or employee, a healthcare provider, or incompetent - meets the definition of a crime of violence. Given the similarity in the definition of a crime of violence in the sentencing context and a crime of violence in the immigration context, this ruling likely indicates the subsection at issue is a crime of violence for immigration purposes, too.
The full text of US v. Rice can be found here: http://media.ca8.uscourts.gov/opndir/16/02/143615P.pdf
In a decision that only be described as "two steps backwards" for criminal immigration practitioners (like myself), the Board of Immigration Appeals (Board) issued a precedential decision finding that the proper inquiry for determining whether a conviction is for an aggravated felony crime of violence under 18 U.S.C. § 16(b) is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.” In so finding, the Board discarded the standard outlined by the Supreme in Moncrieffe v. Holder which instructed courts to determine what the "least culpable conduct" criminalized by a statute is, and then determine if there is a categorical match between that conduct and the generic federal definition of a crime (in this case, the definition of a crime of violence outlined in 18 U.S.C. § 16(b)).
The problem is that the Board failed to sufficiently explain how to evaluate what the "ordinary case" of conviction is under a particular statute. It noted that the respondent in the case had not presented any cases in which Florida has prosecuted someone for felony battery where violent force was not used, but it did not discuss whether the presentation of such a case would mean that the ordinary prosecution still involved such force. How many cases would the respondent have to find? 5? 10? Must they be published cases? At what point does the ordinary conduct criminalized by a statute include less culpable conduct than one might imagine?
The full test of Matter of Francisco-Alonzo can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/06/02/3839.pdf
