28 I. & N. Dec. 541
BIA2022Background
- Respondent, a lawful permanent resident from Vietnam, was convicted in 2017 of misdemeanor domestic abuse battery with child endangerment under La. Stat. § 14:35.3(I).
- DHS charged removable under INA § 237(a)(2)(E)(i) as having been convicted of a "crime of domestic violence;" IJ found him removable but granted cancellation of removal; respondent appealed to the BIA.
- The legal question: whether Louisiana’s domestic abuse battery statute is categorically a "crime of violence" under 18 U.S.C. § 16(a) (incorporated into the INA provision) using the categorical approach.
- The BIA assessed what level of "physical force" § 16(a) requires, applying Supreme Court precedents (Johnson and Stokeling) that interpret the ACCA definition of "physical force," and rejecting application of Castleman (Lautenberg context) to § 16(a).
- Louisiana law treats domestic abuse battery as simple battery by a household member; Louisiana courts have long held simple battery may be satisfied by mere offensive or trifling touching.
- Because the state statute criminalizes mere offensive touching (the least culpable conduct), the BIA held the statute is overbroad and not categorically a crime of domestic violence under INA § 237(a)(2)(E)(i); the respondent’s appeal was sustained and removal proceedings terminated.
Issues
| Issue | Plaintiff's Argument (DHS) | Defendant's Argument (Respondent) | Held |
|---|---|---|---|
| Whether La. § 14:35.3(I) is categorically a "crime of domestic violence" under INA § 237(a)(2)(E)(i)/§ 16(a) | Castleman should guide interpretation; in domestic-violence context minimal force suffices so the statute qualifies | Johnson and Stokeling govern § 16(a); § 16(a) requires "violent" or resistance-overcoming force and LA statute reaches mere offensive touching, so it is overbroad | Johnson and Stokeling control § 16(a); Castleman inapplicable; LA statute criminalizes mere offensive touching and is overbroad — not a categorical crime of domestic violence; appeal sustained |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 ("physical force" in ACCA means violent force capable of causing pain or injury)
- Stokeling v. United States, 139 S. Ct. 544 (force to overcome a victim’s resistance qualifies as "violent force" for ACCA)
- United States v. Castleman, 572 U.S. 157 (in Lautenberg context, "physical force" can include slightest offensive touching; BIA held inapplicable to § 16(a))
- Moncrieffe v. Holder, 569 U.S. 184 (use of the categorical approach for immigration consequences of convictions)
- Leocal v. Ashcroft, 543 U.S. 1 (interpreting § 16(a); relied on in related force analyses)
- Mathis v. United States, 579 U.S. 500 (explaining the categorical approach to statutory elements)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (deference to the plain statutory text)