61 RI Bar J., No. 4, Pg 21. Immigration Consequences to a Charge of Simple Assault or Battery.

• Author: Deborah S. Gonzalez, Esq.Gonzalez Law Offices, Inc., Roger Williams University School of Law Visiting Associate Professor

Rhode Island Bar Journal

Volume 61.

61 RI Bar J., No. 4, Pg 21.

Immigration Consequences to a Charge of Simple Assault or Battery

Rhode Island Bar Journal61 RI Bar J., No. 4, Pg 21 January/February 2013Immigration Consequences to a Charge of Simple Assault or Battery Deborah S. Gonzalez, Esq.Gonzalez Law Offices, Inc., Roger Williams University School of Law Visiting Associate ProfessorIt is never an easy task determining whether an "alien's"(fn1) misdemeanor crime of simple assault or battery under RI Gen. Laws § 11-3-5 is an aggravated felony, a crime of moral turpitude or a domestic crime of violence according to the Immigration Nationality Act. This article focuses solely on misdemeanor dispositions,(fn2) under RI Gen. Laws § 11-5-3/12-29-5, and how these dispositions are viewed in the immigration context, as well as the consequences a client may face based on a conviction or plea pursuant to this statute. Issues reviewed include: 1) the consequences of a conviction or of accepting a plea for simple assault/domestic where the sentence falls outside the purview of a definition of an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F) and even some that do; 2) how Immigration Customs Enforcement (ICE) may consider such a conviction or plea to be a crime of domestic violence (CDV) and/or a crime involving moral turpitude (CIMT); and 3) suggestions as to how a client may fall outside the aggravated felony category even if the client must accept a one-year suspended sentence.

Crime of Domestic Violence pursuant to 8 U.S.C. § 1227(a)(2)(E) or Aggravated Felony pursuant to 8 U.S.C. § 1101(a)(43)(F) as defined in 18 U.S.C. § 16(a)

Section 1227(a)(2)(E)(i) of the Code renders any alien (documented or undocumented) removable if the alien at any time after admission (or entry) was convicted of a CDV, stalking, child abuse, child neglect or child abandonment. The term "domestic violence" means crime of violence as defined pursuant to section 16, Title 18 of the United States Code.(fn3)

Section 16, title 18 of the U.S.C. defines a crime of violence as: "(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." (emphasis added). Here, we will review only title 18 U.S.C. § 16(a), as it focuses on the misdemeanor offense of simple assault or battery/domestic in Rhode Island.(fn4)

RI Gen. Laws § 11-5-3 states as follows: (a) Except as otherwise provided in § 11-5-2, every person who shall make an assault or battery or both shall be imprisoned not exceeding one year or fined not exceeding one thousand dollars ($1,000), or both; (b) Where the provisions of "The Domestic Violence Prevention Act," chapter 29 of title 12, are applicable, the penalties for violation of this section shall also include the penalties as provided in § 12-29-5." (emphasis added)

Notably, this section does not charge a defendant with one crime, but with two distinct crimes: assault or battery or both. Although not defined by the statute, the terms assault and battery have different and distinct definitions and elements according to Rhode Island case law. Assault is defined it as "an unlawful attempt or offer, with force or violence, to do corporal hurt to another, whether with malice or wantonness." See State v. McLaughlin, 621 A.2d 170, 177 (R.I.1993).(fn5)

"[B]attery refers to an act that was intended to cause, and does cause, an offensive contact with or unconsented touching of or trauma upon the body of another." See McLaughlin, 621 A.2d at 177, citing to State v. Messa, 594 A.2d 882, 884 (R.I.1991) (quoting Proffitt v. Ricci, 463 A.2d 514, 517 (R.I.1983)).

When an alien is convicted(fn6) of, or has pled to, a charge of simple assault pursuant to RI Gen. Laws § 11-5-3 and placed in removal proceedings, the issue at the immigration court level is whether the alien is removable or inadmissible as a result of having been convicted of a crime of violence and/or a crime of domestic violence (depending on the charge) or a crime involving moral turpitude.(fn7)

The issue of what acts constitute a crime of violence (COV) pursuant to 18 U.S.C. § 16 was brought to the United States Supreme Court in Leocal v. Ashcroft, 125 S.Ct. 377 (2004).

Josue Leocal, a lawful, permanent resident (LPR), was convicted under the Florida statute for driving under the influence in violation of Fla. Stat. § 316.193(3)(c)(2) (2004). The statute required a showing of only negligence. The issue in Leocal became whether an offense that does not require a showing of intent is a COV pursuant to 18 U.S.C. § 16. See Leocal v. Ashcroft, 125 S. Ct. 377 (2004).

The Leocal Court noted that the language "use of physical force against the person or property of another," found in 18 U.S.C. § 16(a), required a higher degree of intent than merely negligent or accidental. Leocal 125 S. Ct. at 382. The Supreme Court, however, never defined the term "physical force," until 2010 in Johnson v. US, 130 S.Ct. 1265 (2010).

In 2007, the First Circuit in Lopes v. Keisler, 505 F.3d 58 (1st Cir 2007) was asked to answer the question of whether a conviction/plea pursuant to RI Gen. Laws § 11-5-3-/12-29-5 is considered a COV pursuant to 18 U.S.C. § 16(a), thereby possibly rendering a foreign national removable as an aggravated felon, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).

Lopes, a lawful permanent resident, was charged with violation of RI Gen. Laws § 11-5-3. The criminal complaint stated that Lopes "commit[ted] assault and battery upon the body of [name omitted]." Lopes, 505 F.3d at 62. The Department of Homeland Security...