Conviction of an offense that comes within the definition of a “crime of violence” (COV) under 18 USC § 16 can cause two types of adverse immigration consequences. If a sentence of a year or more is imposed, it is a COV aggravated felony under 8 USC § 1101(a)(43)(F). Regardless of sentence, if the defendant had a domestic relationship with the victim it is a deportable offense as a “crime of domestic violence” under 8 USC § 1227(a)(2)(E). Under 18 USC § 16(a), an offense is a crime of violence if it has as an
element intent to use or threaten force against a person or property. Under 18 USC § 16(b) a felony offense is a crime of violence even without intent to use force, if it is an offense that by its nature involves a substantial risk that force will be used. Offenses that involve an intent to use great force or sexual intent are also commonly
held to be crimes involving moral turpitude.

1. Third and Fourth Degree Assault
Third degree assault pursuant to (f) negligence provision²⁹³ is not a “crime of violence” under the federal definition. Neither is fourth degree
assault²⁹⁴ if the record of conviction does not reflect which way the offense was committed. Thus they should not trigger deportation under
either the aggravated felony or the domestic violence ground of deportability, regardless of the sentence imposed or the defendant’s
relationship to the victim. (Of course, a sentence of 364 days or less definitively removes the possibility of being charged with one of the two COV grounds: as an aggravated felony crime of violence.) If there is a plea to assault 4, be sure that the record does not indicate that defendant used force. See Chapter Eight: Domestic
Violence, Stalking, Crimes Against Children and Prostitution Offenses.

2. Arguing Simple Assault Is Not a Crime of Violence
Simple assault is commonly held to be a “crime of violence,” and therefore can cause deportability under the domestic violence ground if the victim
was a current or former spouse, co-parent of a child, or date of the defendant.²⁹⁵ Additionally, where simple assault has a sentence of one year or more imposed, it can constitute an COV as an aggravated felony under 8 USC 1101(a)(43)(F). The Ninth Circuit, however, recently held, in a non-immigrationrelated domestic violence context, that simple assault is not a crime of violence unless the record of conviction shows that there was more than “mere touching,”
which is the minimum act to violate most battery statutes.²⁹⁶ Under this decision, if the record of conviction is kept clear of information that the assault involved some violence, it will not trigger the domestic violence deportation ground or the
aggravated felony COV provision. See Chapter Five, Eight, and Nine for further discussion of these issues.

3. Sexual Motivation Enhancement²⁹⁷ and Communication with a Minor for
Immoral Purposes²⁹⁸
A sexual motivation finding serves as a sentence enhancement. The Ninth Circuit case U.S. v. Corona-Sanchez, held that a recidivist sentence
enhancement was not part of the underlying conviction.²⁹⁹ Consistent with that reasoning, a finding of sexual motivation should not be part of
the underlying assault conviction for purposes of the immigration analysis. Thus, an assault 3 conviction would not become a crime of violence, crime of moral turpitude or any other deportable offense simply because it is accompanied by a
finding of sexual motivation. However, in United States v. Moreno Hernandez³⁰⁰ a Ninth Circuit panel in 2005 distinguished such recidivist enhancements from one based on the presence of a victim’s minor child at the offense.³⁰¹ The Court ruled that “Corona-Sanchez was not
entirely clear as to whether it was enunciating a rule only for recidivist sentencing enhancements…”³⁰² The Court ruled that the exclusion of enhancements from the
“categorical” analysis “appl[ies] only to enhancements not based directly on the facts
of the offense of conviction….” and that Corona-Sanchez’s rule does not apply to sentence factors “based on specific characteristics of the offense itself rather than on some aspect of the offender’s legal history.”³⁰³
We do not have case law yet directly applying the Corona-Sanchez decision to sexual
motivation enhancements. The Ninth Circuit has ruled that, “abuse” requires more
than improper motivation; it requires conduct that is “abusive.”³⁰⁴ This may help to keep an assault with a sexual motivation finding from being treated as an aggravated felony for “sexual abuse of a minor,”³⁰⁵ although not necessarily from being a CIMT. Counsel must be careful to sanitize the record of the victim’s age and relationship to defendant whenever possible. The question of how this enhancement
will be treated has not been resolved.
A possible alternative charge for a sexual offense that would be an aggravated felony as either “rape” or “sexual abuse of a minor,” could be “Communication with a Minor for Immoral Purposes (CMIP).”³⁰⁶ A divided Ninth Circuit panel ruled in July, 2005 that this offense included conduct that went beyond the definition of “abuse.” ³⁰⁷ However, this avoids being an aggravated felony only if the record of conviction
does not specify that the offense of conviction is for conduct that comes within the definition of “sexual abuse of a minor.”³⁰⁸ It is still likely to be a CIMT, but this alone may not make the person deportable, or, if an LPR, the non-citizen may preserve eligibility for cancellation of removal.³⁰⁹ If the record of conviction cannot
be restricted to the statutory language, CMIP is likely to be treated as an aggravated
felony.

4. Unlawful Imprisonment³¹⁰
As long as the record of conviction does not indicate that unlawful restraint was done by force, this should not be a COV aggravated felony or a crime involving moral turpitude. Nor will it be a Sexual Abuse of a Minor (SAM) aggravated felony since the victim’s age is not an element of the offense.

²⁹³ RCW 9A.36.031(f); see Leocal v. Ashcroft, 125 S.Ct. 377 (2004) (force cannot be “used” negligently).
²⁹⁴ RCW 9A.36.041 assault in the fourth degree; see, e.g., U.S. v. Belless, 338 F.3d 1063 (9th Cir 2003) (offensive touching does not require use of force).
²⁹⁵ See 8 USC § 1227(a)(2)(E)(i); INA 237(a)(2)(E)(i).
²⁹⁶ See U.S. v. Belless, 338 F.3d 1063 (9th Cir 2003).
²⁹⁷ RCW 9.94A.835.
²⁹⁸ RCW 9.68A.090(1).
²⁹⁹ 291 F.3d 1201 (9th Cir. 2002). See also United States v. Pimentel-Flores, 339 F.3d 959, 967-69 (9th Cir. 2003). (Enhancement for violation of a court order also comes under the Corona-Sanchez rule.) 300 ___F.3d __ (9th Cir.2005); 2005 U.S. App. LEXIS 13316.
³⁰¹ Or. Rev. Stat § 163.160(3)(c). Fourth degree assault in Oregon.
³⁰² 2005 U.S. App. LEXIS 13316, at 15.
³⁰³ Id. at 17-18.
³⁰⁴ United States v. Pallares-Galan, 359 F.3d 1088, 1101-02 (9th Cir. 2004).
³⁰⁵ 8 USC 1101(a)(43)(A); INA 101(a)(43)(A).
³⁰⁶ RCW 9.68A.090(1).
³⁰⁷ Parilla v. Gonzalez, No. 01-74010;__F.3d__(9th Cir. 2005); U.S. App. LEXIS 13810, at 10-11. Parilla treats the 2002 version of CMIP; however, there don’t seem to be any substantive differences that would restrict its application to the current statute.
³⁰⁸ Id. at 13.
³⁰⁹ For more information, please see Part II, Section C of this manual – Quick Guide to Cancellation of Removal for Legal Permanent Residents.
³¹⁰ RCW 9A.40.040; the definition of “restraint” at RCW 9A.40.010(1)(a) includes by “deception.”