BIA HOLDS THAT IN DETERMINING WHETHER A CONVICTION IS FOR AN AGGRAVATED FELONY CRIME OF VIOLENCE PER 18 U.S.C. § 16(b), THE IJ MUST DECIDE IF THE CONDUCT ENCOMPASSED BY THE ELEMENTS OF THE OFFENSE PRESENTS A SUBSTANTIAL RISK THAT PHYSICAL FORCE MAY BE USED IN THE COURSE OF COMMITTING THE CRIME IN THE “ORDINARY CASE.”
On June 2, 2015, the Board of Immigration Appeals (BIA), in a densely reasoned opinion, passed for the second time on the issue of whether one convicted of Florida felony battery and sentenced to prison for 24 months is removable as a noncitizen convicted of an aggravated felony crime of violence under INA § 101(a)(43)(F). The BIA found that the issue on appeal was whether, in determining if the offense is a categorical “crime of violence” as defined by 18 U.S.C. § 16(b), the Immigration Judge (IJ) should use the “least culpable conduct” test set forth in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) or the “ordinary case” analysis found in James v. U.S., 550 U.S. 192 (2007) and Matter of Ramon Martinez, 25 I & N Dec. 571 (BIA 2011). The Board initially analyzed, at great length, the proper application of the categorical approach to determine whether a state criminal law is a categorical match to, and thus qualifies as a crime of violence under, 16(b). In balancing the various approaches to this question by the U.S. Supreme Court in James and Moncrieffe, the BIA ultimately held it appropriate to continue to employ the James analysis, in part because this is the form of inquiry used by the Eleventh Circuit in whose jurisdiction this case arises. As applied to the Florida statute at issue, the Board found that, in the “ordinary case”, such felony battery constitutes a violent crime because the conduct required by the law involves a substantial risk of physical force being used in the commission of the crime; the possibility that Florida would criminally prosecute for felony battery where violent physical force was not involved but the victim suffered great injury because of a preexisting physical condition (an “eggshell victim”) was found not to constitute the ordinary case. The BIA therefore concluded that the James analysis was applicable and that thereunder, Florida felony battery is a categorical crime of violence under § 16(b) and the respondent was removable as charged. Matter of Francisco-Alonzo 26 I & N Dec. 594 (BIA 2015).