The Board of Immigration appeals recently issued a published decision that may answer once and for all with a resounding NO, the question: “is Battery in Florida a Crime of Violence?” That’s right, the Florida crime of Battery, Florida Statute § 784.03, which requires that someone actually and intentionally touch or strike another person or intentionally cause bodily harm to that person, is probably not a crime of violence in immigration law. That means that it is probably never an aggravated felony crime of violence under INA § 101(a)(43)(F), and may never be a crime of domestic violence under INA § 237(a)(2)(E)(i).
This decision also means that other more serious Florida battery crimes, including Felony Battery based upon a prior Battery Conviction, Fla. Stat. § 784.03(2), Aggravated Battery on a Pregnant Victim, Fla. Stat. § 784.045(1)(b), Battery on a Law Enforcement Officer, Fla. Stat. § 784.07, and Battery on a Elderly or Disabled Person, Fla. Stat. § 784.08, are all likely not crimes that can get you deported. That is because each of these crimes is based upon the same language from the simple battery statute.
A bit of background on the statute first so that you can understand the history of the changes in the law effecting the battery statute. In 2010, the U.S. Supreme Court in a case called Johnson v. United States, 130 S.Ct. 1265 (2010), determined that the first part of Florida’s battery statute, the part about touching another person against their will, is not a crime of violence. That is because you can be convicted of battery in Florida without actually using any violent physical force to commit the crime. Rather, you can simply touch someone against their will.
In 2013, the Supreme Court again weighed in on the issue of divisibility, that is when you can separate out different parts of a statute to determine what a person was really convicted of doing. Decamps v. United States, 133 S.Ct. 2276 (2013). For Florida’s battery statute, that decision meant that because a jury in Florida never has to decide between whether a defendant touched or struck a victim before they can find someone guilty, the statute is not divisible, but rather, it is overbroad.
Between these two decisions by the U.S. Supreme Court, immigrants in removal proceedings and fighting for benefits before USCIS could argue that their conviction for violating the first part of Florida’s Battery statute was never a crime of violence. Or, better yet, they could have their Board Certified Immigration attorney make that argument for them (like me: https://www.slgattorneysflorida.com/john-gihon.html).
That left only the second part of Florida’s Battery statute for the government to argue that it is a crime of violence. This part involved intentionally causing bodily harm to a victim. However, many experienced immigration and criminal defense attorneys argued that causing bodily harm to someone can be done in many ways that do not include using violent physical force. Therefore, even this part of the statute was arguably not a crime of violence. This nuanced argument is something that experienced crimmigration attorneys used to formulate plea deals that helped to protect immigrants convicted of Florida battery from negative immigration consequences. For more information on our crimmigration consultation service, check out our dedicated website: http://www.Floridacrimmigration.com
Florida Courts have held many times that violating Florida’s battery statute does not require the use of physical force. Check out these cases for examples: Perkins v. State, 576 So.2d 1310 (Fla. 1991); State v. Hearns, 961 So.2d 211 (Fla. 2007); Bradley v. State, 106 So. 3d 530, 532 (Fla. App. Ct. 2013); and Santiago v. State, 76 So.3d 1027 (Fla. App. Ct. 2011).
However, immigration judges and USCIS have not always agreed that when an immigrant is possibly convicted of the portion of the statute that requires the intentional infliction of bodily harm, the conviction is not a crime of violence. This new BIA decision should end that discussion.
In Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016) the Board held that in the context of a crime of violence analysis under 18 U.S.C. § 16(a), a statute that requires that the defendant intentionally inflict injury to a victim does not necessarily involve the use of violent physical force as required under Johnson v. United States, 559 U.S. 133 (2010). The Board held that the culpable conduct that can violate the statute in this case, an intentional act that results in injury to the victim, can be accomplished in multiple ways that do not involve the intentional use of violent physical force. Therefore, the statute was not a categorical crime of violence. The Board withdrew its contrary decision in Matter of Martin, 23 I7N Dec. 291 (BIA 2002) and distinguished U.S. v. Castleman, 134 S.Ct. 1405 (2014) a case the Department often uses to argue that any intentional act that results in physical injury necessarily involves the use of violent physical force.
This decision means that because the part of Florida’s battery statute that criminalizes the intention infliction of bodily harm can be done without the use of violent physical force, that portion of the statute is not a categorical crime of violence. Now, no part of Florida’s battery statue is a categorical crime of violence and immigrants and their attorney are able to argue that the entire statute is overbroad and indivisible and can never be a crime of violence or domestic violence.
John Gihon is a Florida Bar Board Certified expert in Immigration and Nationality Law and a Crimmigration Consultant. You can contact John If you need an Orlando Immigration Attorney or if you are an immigrant with a criminal record and need representation no matter where you live in the world. http://www.floridacrimmigration.com
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