Attempted-Battery Assault Is Not a “Crime of Violence” for Federal Immigration Purposes, No Right to a Jury Trial

Esperanza Contreras v. United States (decided August 6, 2015)

Players: Chief Judge Washington, Judge McLeese, Senior Judge Belson. Opinion by Judge McLeese. Gregory W. Gardner for Ms. Contreras. Motions Judge: Fern Flanagan Saddler. Trial judge: Michael Ryan.

Facts: Ms. Contreras became angry with her teenaged daughter and slapped her in the face, causing the girl’s nose to bleed. She was charged with simple assault, and moved for a jury trial on grounds that a conviction would subject her to possible deportation. The motion was denied and her bench trial resulted in a conviction.

Issue: Was the charged assault a deportable “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(e)(i) (2012), entitling Ms. Contreras to a jury trial?

Holding: No. Federal law requires that a deportable “crime of domestic violence” be, among other things, a “crime of violence” within the meaning of 18 U.S.C. § 16(a). Focusing on the attempted-battery type of simple assault for which Ms. Contreras argued she was convicted, the court held that such an assault is not a “crime of violence” under the federal definition because it does not require the same degree of violence. “Violence,” in the context of D.C.’s simple assault statute, refers to any “attempt to do unlawfully to another any bodily injury however small,” while the federal “crime of violence” definition requires “force capable of causing physical injury or pain to another person.” (emphasis added).

Of Note:

• The court deemed it irrelevant that the facts of the charged crime did meet the federal “crime of violence” definition because courts look to the elements of a criminal statute, not the facts of each case, to decide whether it involves a “crime of violence” under federal law.

• The court rejected Ms. Contreras’s sufficiency claim, ruling that the trial judge had an adequate evidentiary basis, in the form of harsh comments Ms. Contreras made during the incident to the effect that her daughter ought not to have been born, to conclude that she slapped the girl out of “hurt pride” rather than for disciplinary purposes. The judge thus did not err in rejecting Ms. Contreras’s parental-discipline defense. FT

Read full opinion here.