In Castellanos v. Holder, the United States Court of Appeals for the 7th Circuit recently found an Illinois domestic battery statute to be a crime of violence and, therefore, an aggravated felony under INA § 101(a)(43). The Illinois statute is 720 Ill. Comp. Stat. 5/12-3.2(a)(1), which makes it illegal to “intentionally causing bodily harm to any family or household member.” A crime of violence is a particular subsection of aggravated felonies and includes any crime that “has as an element, the use, attempted use, or threatened use of physical force against the person or property of another” 18 USC § 16(a).
It is important to note from the outset that crimes of violence, like crimes involving moral turpitude (CIMT), are defined in the abstract. This means that immigration courts determine whether a particular crime is a crime of violence by looking only at the elements of the statute. Cases like Castellanos are helpful because they show precisely what the court is looking for in a statute when determining if it is a crime of violence. In this case, the 7th Circuit made clear that physical force and physical pain or injury must be required by the elements of the statute. This means that any crime that can be committed without the use of physical force or without inflicting physical pain or injury on the victim does not count as a crime of violence.
The reason that the determination of whether a particular crime is a crime of violence is important has to do with the effect the determination has on potential relief from deportation. If someone is found to have committed a crime of violence, then they have committed an aggravated felony. Committing an aggravated felony disqualifies you from cancellation of removal. Cancellation is generally available for non-citizens that are otherwise deportable because of the length of time that they have spent in the United States. Committing a crime of violence disqualifies many noncitizens from that relief, which could otherwise keep them from being deported.
Do you have questions about crimes of violence or aggravated felonies? Contact the immigration law specialists at the Hacking Immigration Law today at (314) 961-8200 or by filling out the online contact form.