The Board of Immigration Appeals recently held that an aggravated battery offense could not be considered a crime of violence type of aggravated felony because the state statute did not require use of violent physical force. Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016).
This case involved a lawful permanent resident convicted of aggravated battery in violation of Puerto Rico Penal Code art. 122. The immigration judge concluded that this conviction satisfied the definition of crime of violence found at 18 U.S.C. § 16(a), namely, that the offense “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Matter of Guzman-Polanco, 26 I&N Dec. at 714. The IJ did not consider the alternative definition of crime of violence found at 18 U.S.C. § 16(b).
The BIA disagreed with the immigration judge’s analysis. Turning to the Supreme Court’s instruction in Leocal v. United States, 543 U.S. 1, 11 (2004), that the crime of violence designation “suggests a category of violent, active crimes” and an even more emphatic statement in Johnson v. United States, 559 U.S. 133, 140 (2010), that “the phrase ‘physical force” means violent force—that is, force capable of causing physical pain or injury to another person,” the Board was left with little choice but to add that the crime of violence definition requires violent physical force. Matter of Guzman-Polanco, 26 I&N Dec. at 715. Anything less than violent physical force cannot constitute the physical force referenced by the crime of violence definition. Accordingly, the Board withdrew an earlier decision, Matter of Martin, 23 I&N Dec. 491 (BIA 2002), that suggested as much and upon which DHS relied. Id. at 715-16.
Having unambiguously explained the violent nature of offenses contemplated by the crime of violence definition, the Board turned to analyzing the Puerto Rico aggravated battery offense. The simple battery statute upon which the aggravated battery offense substantively rests, the Board explained, “provides that every battery requires the infliction of bodily injury ‘through any means or form’.” Id. at 717. Because “any means or form” does not categorically require violent physical force, the Board concluded “the offense of…aggravated battery…could be committed by means that do not require the use of violent physical force.” Id. As such, the BIA held that Puerto Rico’s aggravated battery offense is not a crime of violence under § 16(a). It remanded for consideration of the crime of violence definition found at § 16(b).
Just as important as its reasoning and holding, the Board offered an important teaching lesson. The DHS, it explained, rested its argument in part on the First Circuit’s interpretation of the phrase “physical force” in a case arising under the federal crime of domestic violence. Matter of Guzman-Polanco, 26 I&N Dec. at 716. Relying on the First Circuit’s explanation, the Board noted that “statutory context matters.” Id. at 717. It is just as important to understand how a statutory phrase is defined as it is to understand the legislative context in which that phrase appears. The same language can have different meanings based on the broader legislation in which it appears. That, the Board concluded, is exactly the case here. The words may be identical, but the meanings are different. Id.
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