An Immigration Judgein Texas last week found that a Texas conviction for assaultinvolving family violence, Tex. Penal Code § 22.01(a),does not fall into the crime of violence category of aggravatedfelony. This was a great victory for one of our clients that we wonbased primarily on the brief we submitted.
Section 101(a)(43)(F)defines a crime of violence in relation to 18 U.S.C. § 16.In turn, 18 U.S.C. § 16 defines a crime of violence as
(a) an offense thathas as an element the use, attempted use, or threatened use ofphysical force against the person or property of another, or (b) anyother offense that is a felony and that, by its nature, involves asubstantial risk that physical force against the person or propertyof another may be used in the course of committing the offense.
Thereis no doubt that Tex. Penal Code § 22.01(a) does not meet thedefinition of subpart (a). In United States v. Villegas-Hernandez the Fifth Circuit held that “use of force is not an element ofassault under section 22.01(a)(1), and [thus] the assault offensedoes not fit subsection 16(a)’s definition for crime of violence.”468 F.3d 874, 879 (5th Cir. 2006).
The difficult issue was whether § 22.01(a) constitutes a crime ofviolence as defined in subpart (b) of 18 U.S.C. 16. We argued that §22.01(a) does not satisfy this subpart because it does not by itsnature, involve a substantial risk that physical force against theperson or property of another may be used in the course of committingthe offense. We argued as follows: “A ‘substantial risk requires a strong probability that the applicationof physical force during the commission of the crime will occur.’”United States v. Landeros-Gonzales,262 F.3d 424, 427 (5th Cir. 2001) (quoting United States v. Rodriguez-Guzman,56 F.3d 18, 20 (5th Cir. 1995)). “'[F]orce,’ as used in thestatutory definition of ‘crime of violence,’ is ‘synonymous withdestructive or violent force.’” Landeros-Gonzales, 262 F.3d at 426 (quoting Rodriguez-Guzman, 56 F.3d at 20 n.8). In addition, “[w]hen the aggravated felonyprovision uses ‘involves’ language, we inquire whether violation ofthe statute necessarily entails the ‘involved’ behavior.” Omari v. Gonzales,419 F.3d 303, 307 (5th Cir. 2005). Meanwhile, “[t]he bodily injuryrequired by section 22.01(a)(1) is ‘physical pain, illness, or anyimpairment of physical condition.’” Villegas-Hernandez, 468 F.3d at 879.
Ineffect, our argument boiled down to this: that physical pain,illness, or impairment—the level of bodily injured required for aconviction under Tex. Penal Code § 22.01(a)—is not equivalent tothe destructive or violent force required by the crime of violencedefinition.
Importantly, we werealso able to convince the IJ that DHS was incorrect in attempting touse the criminal court’s family violence finding to bolster its crimeof violence argument. DHS essentially wanted the IJ to find thatassault involving family violence is more violent—and thus moreclearly a COV—than assault without a family violence finding. TheTexas assault statute provides for an increased sentence if thecriminal court finds that the victim was a member of a protectedclass that includes certain family members of the defendant. Wesuccessfully argued that such a finding is a sentencing enhancement;it is not an element of the crime. As such, under the categoricalapproach or the modified categorical approach, a sentencingenhancement is an inappropriate consideration.
If the argumentworks with one IJ hopefully it will work with others! I’m happy toprovide more specifics on our argument if it would be of help to you.