Analysis of Crimes of Violence under Immigration Law
Offenses deemed to be crimes of violence under 8 USC 16 will trigger two crime-related
provisions under immigration law:

• Where it is a crime against a person (rather than a property offense and regardless
of the sentence), it will fall under the domestic violence ground of deportation at 8
USC 1227(a)(2)(E)(i);

• Where there is a sentence of one year or more imposed (regardless of time
suspended), it will be an aggravated felony under 8 USC 1101(a)(43)(F); INA
101(a)(43)(F).For immigration law purposes, a "crime of violence" is defined in 18 U.S.C. § 16 as:

• An offense that has as an element of use, attempted use, or threatened use of
physical force against the person or property of another, or

• 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.

What constitutes a crime of violence (COV) under immigration law has been the subject
of much recent immigration litigation in the circuit courts as well as the subject of a
recent U.S. Supreme Court decision.²²⁸In analyzing crime-related immigration statutes, the immigration and federal courtsengage in the “categorical and modified categorical analysis” as set forth in Taylor v. United States, 495 U.S. 575 (1990). Under the categorical analysis the court looks to the language of the statute—not the underlying facts of the case—to determine the elements of the particular offense and whether the minimum conduct required to violate the statute constitutes a COV (or some other crime-related removal ground). Where the statute is broad enough to include multiple offenses, some of which may be COVs and some not, the court is permitted to engage in the “modified” categorical analysis. This means the court will look to the record of conviction (ROC) to determine which specificelements of the statute were involved in the conviction at issue. ²²⁹ See Chapter Four: Carefully Crafting a Noncitizen’s Plea for more on categorical analysis and the ROC.
In Leocal v. Ashcroft,²³⁰ the Supreme Court held that in order for an offense to
constitute a COV under either 16(a) or 16(b), the offense must involve something more
than a negligent mens rea; that COV could not be committed accidentally, but rather
involved some level of volitional behavior. However, the Court specifically declined to
address whether offenses involving reckless mens rea would constitute COVs. In pre-
Leocal cases, the Ninth Circuit has held that statutes penalizing reckless actions
involving force would suffice, although their decisions have been conflicting and are
now, in the wake of Leocal, open for reevaluation of this question.²³¹ Thus, RCW 9A.36.042’s assault in the third degree (and attempted assault third) under the provisions involving a negligent mens rea (sections d & f) cannot constitute COVs for immigration purposes.²³² This will be true of any other offense involving a negligent mens rea or that is a “strict liability” offense, such as a DUI. However, offenses  involving a reckless mens rea, where a sentence of one year or more is imposed (regardless of time suspended) are much more risky, including reckless driving and attempt to elude, because they are potentially crimes of violence. Equally important, the Leocal decision settled another controversy regarding COV by holding that the analysis of the criminal offense must focus on the risk that force will be used, not only the risk that injury or harm may result from the defendant’s actions. In finding that an Arizona felony endangerment statute—involving a reckless mens rea—was not a COV, the Ninth Circuit, in its Hernandez-Castellanos decision, stated:
For a crime based on recklessness to be a crime of violence under § 16(b), the crime
must require recklessness as to, or conscious disregard of, a risk that physical force
will be used against another, not merely the risk that another might be injured. In a federal criminal law case, the Ninth Circuit held that a simple battery does not  qualify as a domestic violence offense unless the record of conviction shows that thebattery involved more than mere offensive touching.²³³ Thus there is a strong argument, although not a guarantee, that in the Ninth Circuit, simple assault under RCW 9A.46.041 and similar municipal assault statutes—even where the offense involved “domestic violence”—is not a basis for deportability under the domestic violence ground unless the official record of conviction shows that the conduct went beyond mere offensive touching. Similarly, simple assault cannot be an aggravated felony under the crime of violence prong even where the sentence imposed is 365 days.²³⁴ (On a cautionary note, however, it is still imperative to get a 364-day sentence since immigration authorities frequently do not recognize this position.) The Belless case did not involve the domestic violence deportation ground (8 USC §1227(a)(2)(E)(i)), but a similarly worded federal sentence enhancement based on prior
conviction of a "domestic violence offense" (18 USC § 921(a)(33)(A)(ii)). The prior offense had to include as an element the "use or attempted use of physical force, or the threatened use of a deadly weapon." In Belless, the issue was whether the Wyoming battery conviction could constitute such a prior offense even though it included mere “rude” or “offensive” touching. As an example, the Court cited Nixon's poking Khruschev in the chest with his finger during their famous “Kitchen Debate.” The Court held that the physical force described in the federal statute "is not de minimus." Therefore the battery statute was divisible for this purpose, encompassing a broader range of behavior than the federal statute. Having found that the record of conviction did not adequately demonstrate the degree of force used, the Court found that the conviction for simple battery, although the victim was a spouse, was not a domestic violence offense. The definition in the statute at issue in Belless is close to the definition used under the domestic violence deportation ground for a misdemeanor crime of violence under 18 SC § 16(a), which is “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. ” The Ninth Circuit has held in other contexts that “the force necessary to constitute a crime of violence [under 18 USC § 16] … must actually be violent in nature.”²³⁵ As the Belless Court noted, “Any touching constitutes 'physical force' in the sense of Newtonian mechanics. Mass is accelerated, and atoms are displaced. Our purpose ... though, is to assign criminal responsibility, not to do physics.” ²³⁶
This analysis, importantly, applies to fourth degree assault under RCW 9A.31.041 since
Washington courts have held that it encompasses “intentional … unlawful touching.”²³⁷ Additionally, the Ninth Circuit specifically articulated, in the similar (but not identical)context of COV’s under the U.S. Sentencing Guidelines, that third degree assault under RCW 9A.36.031 and fourth degree assault under RCW 9A.36.041 cannot constitute COVs
under the categorical approach. There would need to be further proof, by employing a
“modified categorical approach,” that the ROC evinces a risk of a volitional use of violent
force.²³⁸

²²⁸ Much of this litigation has been in the context of the COV aggravated felony provision, and of sentence enhancements in illegal reentry prosecutions under 8 USC § 1326. Both the DV deportation ground an the COV provision under the aggravated felony definition, at 8 USC § 1101(a)(43)(F), dictate that a COV is determined by reference to the federal definition at 18 USC § 16. The Supreme Court held that a Florida felony DUI conviction was not a COV. See Leocal v. Ashcroft, 125 S.Ct. 377 (2004).
²²⁹ The ROC constitutes only the following documents: information in the criminal charge, where there is evidence that the person was convicted of the specific charge; judgment of conviction; transcript of plea and sentence hearing; written plea agreement; and certain jury instructions in jury trials. It does not include the probation or pre-sentence report, police reports, defendant's or others' statements outside of the judgment and sentence hearings, a court docket summary, or other evidence extrinsic to the official hearing. See U.S. v. Rivera-Sanchez, 247 F.3d 905, 908 (2001); Chang v. INS, 307 F.3d 1185 (9th Cir, 2002); Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989). Charging documents are only to be considered in conjunction with the plea agreement and, alone, are never sufficient to establish the conviction and/requisite elements of a defendant’s guilt. U.S. v. Corona Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002). See Chapter Four, Carefully Crafting a Noncitizen’s Plea for additional analysis.
²³⁰ Leocal v. Ashcroft, 125 S.Ct. 377 (2004).
²³¹ See Hernandez-Castellanos, 287 F.3d 876 (9th Cir); Park v. INS, 252 F.3d 1018 (9th Cir. 2001).
²³² Note that where the requisite weapon under RCW 9A.36.041(d) is identified in the record of conviction
as involving a firearm, it will trigger deportation under the separate firearms ground at 8 USC §
1227(a)(2)(C); INA § 237(a)(2)(C).
²³³ U.S. v. Belless, 338 F.3d 1063 (9th Cir. 2003).
²³⁴ Both the domestic violence deportation ground and the aggravated felony crime of violence provision
reference the federal definition for a crime of violence at 18 USC § 16.
²³⁵ Ye v. INS, 214 F.3d 1128 (9th Cir. 2000).
²³⁶ See also Flores v. Ashcroft, 350 F.3d 666 (9th Cir. 2003) (battery against a spouse is not a deportable
domestic violence conviction where the statute can be violated by mere offensive touching).
²³⁷ See State v. Davis, 60 Wash. App. 813; 820; 808 P.2d 167 (1991). Assault in Washington generally can
also be committed by merely intending to create apprehension of harm. State v. Byrd, 125 Wash.2d 707,
712 (1995) (en banc).
²³⁸ U.S. v. Pimentel-Flores, 339 F.3d 959, 969 (9th Cir. 2003).