Offense
Battery against spouse
Aggravated Felony (AF)
Not a COV but see Advice re ROC.
Crime Involving Moral Turpitude (CIMT)
Not a CIMT, but see Advice re ROC
Other Removal Grounds
Not a deportable crime of DV because not a COV.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).
Advice and Comments
Excellent immigration plea: extensive case law holds that because minimum conduct is an offensive touching, it is never a COV or CIMT.1Section 243(e), battery against a spouse, is not a COV. It uses the same definition of battery as § 243(a), which is not a COV; see endnote on § 243(a), above. Multiple cases have found that Pen C § 243(e) can be committed by an offensive touching, which is neither a COV nor a CIMT. 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). While Matter of Sanudo found that § 243(e) was divisible depending upon the level of violence shown in the record of conviction (ibid.), in fact the statute is not divisible under the standard set out by the Supreme Court in Mathis and Descamps, and must be evaluated solely based on the minimum conduct ever prosecuted. 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 the minimum conduct is not a crime of violence, no conviction of the offense is a crime of violence). See generally Matter of Dang, 28 I&N Dec. 541 (BIA 2022) (a spousal battery offense that reaches an offensive touching is categorically not a crime of violence under 18 USC § 16(a), including under Stokeling). Therefore, no conviction of § 243(e) is a COV or CIMT, for purposes of deportability, inadmissibility, or eligibility for relief. See more on the categorical approach. See also 236.
Because this is not a COV, D can accept a stay-away order or similar probation conditions without 243(e) becoming a deportable DV offense. But if in the future a court finds D violates any DV stay-away order, this will make D deportable; see Advice at 273.6.
Just in case imm authorities wrongly consult the ROC instead of using the minimum conduct test, best practice is to keep violence out of ROC and/or plead to offensive touching, when that is possible. But this is not legally necessary to prevent a COV or CIMT.
This has been treated as a significant misd for DACA. See PC 25400.