BIA on Physical Force: Matter of DANG, 28 I&N Dec. 541 (BIA 2022)

Matter of DANG, 28 I&N Dec. 541 (BIA 2022)

(1) The Supreme Court’s construction of “physical force” in Johnson v. United States, 559 U.S. 133 (2010), and Stokeling v. United States, 139 S. Ct. 544 (2019), controls our interpretation of 18 U.S.C. § 16(a) (2018), which is incorporated by reference into section 237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(E)(i) (2018); the Court’s construction of “physical force” in United States v. Castleman, 572 U.S. 157 (2014), is inapplicable in this context.

(2) Because misdemeanor domestic abuse battery with child endangerment under section 14:35.3(I) of the Louisiana Statutes extends to mere offensive touching, it is overbroad with respect to § 16(a) and therefore is not categorically a crime of domestic violence under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i).

"The respondent was convicted of violating a Louisiana law prohibiting battery of domestic partners. Based on that conviction, an Immigration Judge found him removable for having been convicted of a crime of domestic violence under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(E)(i) (2018). The respondent challenges that finding. We must apply the categorical approach to decide whether Louisiana’s domestic abuse battery statute criminalizes unlawful contact below the level of “physical force,” as the Supreme Court of the United States defined that term in Johnson v. United States, 559 U.S. 133 (2010), and Stokeling v. United States, 139 S. Ct. 544 (2019). Under Louisiana law, the “force or violence” element of the domestic abuse battery statute is satisfied by a mere offensive touching. We therefore conclude that the statute does not categorically require “physical force” as required by Johnson and Stokeling and is not a crime of domestic violence under the INA. The respondent’s appeal will be sustained and his removal proceedings terminated."

[Hats off to Ken Mayeaux!]