26 I. & N. Dec. 594
BIA2015Background
- Respondent (Guatemalan LPR) was convicted in Florida of felony battery under Fla. Stat. § 784.041(1) (intentional touching/striking that causes great bodily harm, permanent disability, or permanent disfigurement) and sentenced to 24 months.
- DHS charged removability as an aggravated felony: a "crime of violence" under INA § 101(a)(43)(F) relying on 18 U.S.C. § 16(b).
- IJ initially terminated proceedings, finding the Florida felony battery statute not categorically a § 16(b) crime of violence; BIA earlier reversed that view and remanded for relief application.
- On remand the IJ denied motions to terminate, then granted reconsideration after Moncrieffe and ordered termination again; BIA certified the case for review per its prior remand.
- Central legal question: whether to assess § 16(b) predicates by the James "ordinary case" risk analysis or by Moncrieffe's focus on the least culpable conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 16(b) inquiry uses “ordinary case” (James) or “least culpable conduct” (Moncrieffe) | DHS: continue to apply James ordinary-case probabilistic analysis for § 16(b) risk-based definitions | Respondent: Moncrieffe requires looking to least culpable conduct the state could prosecute | James ordinary-case analysis governs § 16(b); Moncrieffe did not overrule James |
| Whether Fla. felony battery § 784.041(1) is categorically a § 16(b) crime of violence | DHS: statute’s elements (intentional touching causing great bodily harm) present substantial risk of force in the ordinary case | Respondent: least culpable conduct could be a harmless/technical touching producing great harm because of victim fragility (eggshell victim) | Felony battery under § 784.041(1) is categorically a § 16(b) crime of violence using the ordinary-case analysis |
| Whether hypothetical "eggshell plaintiff" prosecutions defeat categorical match | Respondent: rare prosecutions of fragile-victim scenarios mean statute can be applied to non-violent conduct | DHS: such prosecutions are not shown to be the ordinary case and do not defeat § 16(b) analysis | Hypothetical/rare eggshell prosecutions, absent evidence they are ordinary, do not defeat categorical match under § 16(b) |
| Remedy and procedural disposition | Respondent sought termination of removal | DHS appealed and sought reinstatement of proceedings | BIA vacated IJ termination, reinstated removal proceedings, remanded for designation of removal country and further proceedings including opportunity to seek relief |
Key Cases Cited
- Leocal v. Ashcroft, 543 U.S. 1 (Supreme Court 2004) (§ 16(b) covers offenses involving risk that physical force might be used in committing the crime; focus on ordinary meaning)
- James v. United States, 550 U.S. 192 (Supreme Court 2007) (for probabilistic residual clauses, ask whether the conduct encompassed by the elements, in the ordinary case, presents a serious potential risk)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (Supreme Court 2013) (when comparing state offense to a federal elements-based offense, courts must presume the conviction rests on the least culpable conduct that could be prosecuted)
- Johnson v. United States, 559 U.S. 133 (Supreme Court 2010) (discusses meaning of "physical force" and relations among categorical-approach precedents)
- Descamps v. United States, 133 S. Ct. 2276 (Supreme Court 2013) (clarifies categorical approach and divisibility inquiry)
- Cole v. United States Attorney General, 712 F.3d 517 (11th Cir. 2013) (applies categorical approach in immigration context)