Roger Williams University DOCS@RWU Law Faculty Scholarship Law Faculty Scholarship 2-2013 Immigration Consequences to a Charge of Simple Assault or Battery Deborah Gonzalez Roger Williams University School of Law Follow this and additional works at: http://docs.rwu.edu/law_fac_fs Part of the Constitutional Law Commons, Criminal Law Commons, Immigration Law Commons, and the Supreme Court of the United States Commons Recommended Citation 61 RIBJ 21 This Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in Law Faculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact [email protected]. Immigration Consequences to a Charge of Simple Assault or Battery It is never an easy task determining whether an offense of simple assault or battery/domestic in “alien’s” 1 misdemeanor crime of simple assault Rhode Island .4 or battery under RI Gen. Laws § 11-3-5 is an RI Gen. Laws § 11-5-3 states as follows: (a) aggravated felony, a crime of moral turpitude Except as otherwise provided in § 11-5-2, every or a domestic crime of violence according to person who shall make an assault or battery the Immigration Nationality Act. This article or both shall be imprisoned not exceeding one focuses solely on misdemeanor dispositions ,2 year or fined not exceeding one thousand dol - under RI Gen. Laws § 11-5-3/12-29-5, and how lars ($1,000), or both; (b) Where the provisions these dispositions are viewed in the immigration of "The Domestic Violence Prevention Act,” context, as well as the consequences a client may chapter 29 of title 12, are applicable, the penal - face based on a conviction or plea pursuant ties for violation of this section shall also to this statute. Issues reviewed include: 1) the include the penalties as provided in § 12-29-5.” Deborah S. Gonzalez, Esq. consequences of a conviction or of accepting a (emphasis added) Gonzalez Law Offices, Inc. plea for simple assault/domestic where the sen - Notably, this section does not charge a defen - Roger Williams University tence falls outside the purview of a definition dant with one crime, but with two distinct School of Law Visiting of an aggravated felony pursuant to 8 U.S.C. § crimes: assault or battery or both. Although Associate Professor 1101(a)(43)(F) and even some that do; 2) how not defined by the statute, the terms assault and Immigration Customs Enforcement (ICE) may battery have different and distinct definitions consider such a conviction or plea to be a crime and elements according to Rhode Island case law. of domestic violence (C DV) and/or a crime Assault is defined it as “an unlawful attempt When an alien is involving moral turpitude (CIMT) ; and 3) sug - or offer, with force or violence, to do corporal convicted of, or gestions as to how a client may fall outside the hurt to another, whether with malice or wan - has pled to, a aggravated felony category even if the client tonness.” See State v. McLaughlin , 621 A.2d 5 charge of simple must accept a one-year suspended sentence. 170, 177 (R.I.1993) . “[B]attery refers to an act that was intended assault pursuant Crime of Domestic Violence pursuant to 8 to cause, and does cause, an offensive contact to R.I. Gen. Laws U.S.C. § 1227(a)(2)(E) or Aggravated Felony with or unconsented touching of or trauma and placed in pursuant to 8 U.S.C. § 1101(a)(43)(F) as upon the body of another.” See McLaughlin , removal proceed - defined in 18 U.S.C. § 16(a) 621 A.2d at 177, citing to State v. Messa , 594 ings, the issue at Section 1227(a)(2)(E)(i) of the Code renders A.2d 882, 884 (R.I.1991) (quoting Proffitt v. any alien (documented or undocumented) re - Ricci , 463 A.2d 514, 517 (R.I.1983)). the immigration movable if the alien at any time after admission When an alien is convicted 6 of, or has pled court level is (or entry) was convicted of a CD V, stalking, to, a charge of simple assault pursuant to RI whether the alien child abuse, child neglect or child abandonment. Gen. Laws § 11-5-3 and placed in removal pro - is removable or The term “domestic violence” means crime of ceedings, the issue at the immigration court inadmissible as a violence as defined pursuant to section 16, Title level is whether the alien is removable or inad - 18 of the United States Code .3 missible as a result of having been convicted of result of having Section 16, title 18 of the U.S.C. defines a a crime of violence and/or a crime of domestic been convicted of crime of violence as: “(a) an offense that has violence (depending on the charge) or a crime a crime of violence as an element the use, attempted use, or threat - involving moral turpitude .7 and/or a crime of ened use of physical force against the person The issue of what acts constitute a crime of or property of another domestic violence or (b) any other offense violence (COV) pursuant to 18 U.S.C. § 16 was that is a felony and that, by its nature, involves brought to the United States Supreme Court or a crime involving a substantial risk that physical force against the in Leocal v. Ashcroft , 125 S.Ct. 377 (2004). moral turpitude. person or property of another may be used in Josue Leocal, a lawful, permanent resident the course of committing the offense.” (empha - (LPR) , was convicted under the Florida statute sis added). Here, we will review only title 18 for driving under the influence in violation of U.S.C. § 16(a), as it focuses on the misdemeanor Fla. Stat. § 316.193(3)(c)(2) (2004). The statute Rhode Island Bar Journal Januar y/February 2013 21 required a showing of only negligence. Department of Homeland Security sub - U.S.C. § 1227(a)(2)(E)(I); INA § 237(a)(2) The issue in Leocal became whether an mitted as evidence the criminal complaint (E)(i)) likely will be sustained if the alien offense that does not require a showing and the criminal docket sheet. The crimi - has a conviction pursuant to RI Gen. of intent is a COV pursuant to 18 U.S.C. nal docket sheet listed the charge as Laws § 11-5-3/12-29-3, even if the alien § 16. See Leocal v. Ashcroft , 125 S. Ct. “simple assault-domestic,” along with received probation or a filing and no sus - 377 (2004). the various docket entries and the final pended sentence. The Leocal Court noted that the lan - disposition .8 The Court in Lopes relied In 2010, the US Supreme Court in guage “use of physical force against the on the criminal docket sheet, holding that Johnson v. US , 130 S. Ct. 1265 (2010) person or property of another,” found in “[t]he criminal docket report states that a was tasked with deciding whether the 18 U.S.C. § 16(a), required a higher degree plea of nolo contendere was entered on a Florida misdemeanor offense of battery of intent than merely negligent or acci - count of simple assault-domestic. On the of “actually and intentionally touching” dental. Leocal 125 S. Ct. at 382. The basis of these two documents, it is clear another person has as an element “the Supreme Court, however, never defined that Lopes was convicted of assault.” use…of physical force against the person the term “physical force,” until 2010 in Lopes , 505 F.3d at 62 of another” pursuant to the definition of Johnson v. US , 130 S.Ct. 1265 (2010). The Court in Lopes also found that “physical force” in 18 U.S.C. § 924(e)(2) In 2007, the First Circuit in Lopes v. the physical force required to commit an (B) (i), and whether the Florida convic - Keisler , 505 F.3d 58 (1st Cir 2007) was assault, which, as defined in Rhode Island, tion constitutes a “violent felony” under asked to answer the question of whether does not require touching at all ,9 is suffi - the Armed Career Criminal Act, § a conviction/plea pursuant to RI Gen. cient to be considered a crime of violence 924(e)(1). Laws § 11-5-3-/12-29-5 is considered a pursuant to 18 U.S.C. § 16(a); and there - Violent felony pursuant to 18 U.S.C. COV pursuant to 18 U.S.C. § 16(a), there - fore, an aggravated felony for immigra - § 924(e)(2)(B): by possibly rendering a foreign national tion purposes, as an assault in Rhode 1. Has an element of use, attempted removable as an aggravated felon, pur - Island requires a higher degree of intent use, or threatened use of physical suant to 8 U.S.C. § 1227(a)(2)(A)(iii). than negligent or mere accidental con - force against the person of another ; Lopes, a lawful permanent resident, duct. See Lopes , 505 F.3d at 63; see also (emphasis added) or was charged with violation of RI Gen. Immigration Nationality Act (hereinafter 2. Is burglary, arson or extortion Laws § 11-5-3. The criminal complaint INA ) § 101(a)(43)(F). involves use of explosives or other - stated that Lopes “commit[ted] assault As a result of the Lopes decision, a wise involves conduct that presents and battery upon the body of [name charge of removal pursuant to INA ’s a serious potential risk of physical omitted].” Lopes , 505 F.3d at 62.