Unpub. BIA Descamps Victory in Oklahoma

"The respondent was convicted of domestic abuse - assault and battery under Oklahoma Statute 21, section 644C. which requires assault and battery against certain types of victims. In Steele v. Oklahoma, 778 P.2d 929 (1989), the Oklahoma Criminal Court of Appeals held that only the slightest touching is necessary to constitute the "force or violence" element of battery. Therefore, assault and battery does not necessarily require force or violence. So, the offense under Oklahoma Statute 21, section 644C is not categorically a "crime of violence" as defined in 18 U.S.C. § 16, and thus it is not categorically a "crime of domestic violence" as defined in section 237(a)(2)(E)(i) of the Act. We agree with the respondent's argument on appeal that the Oklahoma statute is not divisible, as it only references one crime. The statute does not include one or more elements of the crime in the alternative. Therefore, based on the recent precedent Supreme Court decision, Descamps v. United States, _ U.S. _ , 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), we also agree with the respondent that the modified categorical approach used by the Immigration Judge is inapplicable with regard to the statute of which the respondent has been convicted. ... The appeal is sustained. ... The decision of the Immigration Judge is vacated. ... Removal proceedings are terminated." - Matter of X-, Dec. 6, 2013.

[Hats off to Kelli J. Stump!]