Offense
Battery, Simple
Aggravated Felony (AF)
Not an AF: Not a COV, plus maximum sentence is less than 1-yr
Crime Involving Moral Turpitude (CIMT)
Not CIMT, but see Advice regarding ROC
Other Removal Grounds
Not a COV so not a deportable DV offense but see Advice.
To ensure not wrongly charged as a crime of child abuse, keep a minor V’s age out of the ROC. Under the categorical approach, no age-neutral offense can correctly be held child abuse even if the minor age appears in the ROC,1See ILRC, 2022 Case Update: Domestic Violence Deportation Ground (March 2022) at www.ilrc.org/crimes-summaries. but a sanitized ROC clean will protect D against error.
Advice and Comments
PC 243(a)
Good immigration plea. Because minimum conduct for 241(a), 243(a) is offensive touching and the statutes are not divisible, no conviction is a COV or CIMT for any purpose.2 The minimum conduct to commit assault under Pen C § 240 and battery under Pen C § 242 is an offensive touching, which is not a crime of violence or crime involving moral turpitude. See, e.g., Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006); Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006) (noting that the phrase “force or violence” is a term of art that does not set out alternative types of conduct; the words are synonymous and can be committed by an offensive touching).
These sections must be evaluated solely based on the minimum prosecuted conduct, because they are not divisible. Prior precedent holding such statutes to be divisible has been overturned by the Supreme Court. See ILRC, How to Use the Categorical Approach Now (2021) and see, e.g., discussion in U.S. v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) (after Descamps, supra, the resisting arrest statute is no longer divisible because it is not phrased in the alternative: if minimum conduct is not a crime of violence, no conviction of the offense is a crime of violence); Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). The phrase “force or violence” is a term of art that does not set out alternative types of conduct. See, e.g., Ortega-Mendez, supra.) See also Matter of Dang, 28 I&N Dec. 541 (BIA 2022), reaffirming that a battery statute (in this case, spousal battery) that reaches offensive touching is not a crime of violence. This also applies to 243(e).
But in case imm authorities wrongly consult the ROC instead of using the minimum conduct test, best practice is to plead to offensive touching or at least keep violence out of ROC, if possible. But this is not legally necessary to prevent a COV or CIMT.
SB54: As a straight misdemeanor, law enforcement cannot notify ICE of release or transfer someone to ICE. See SB 54 advisory at www.ilrc.org/crimes-summaries.