Board of Immigration Appeals finds Virginia Assault and Battery is not a Crime of Violence, nor a Crime of Domestic Violence


The Board issued a major decision in the Crimigration area holding:

"The misdemeanor offense of assault and battery against a family or household member in violation of section 18.2-57.2(A) of the Virginia Code Annotated is not categorically a crime of violence under 18 U.S.C. § 16(a) (2006) and therefore not categorically a crime of domestic violence within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006). "

The Board was controlled by the Supreme Court case of Johnson v. United States, 130 S. Ct. 1265 (2010) in reaching its conclusion. '[O]ur inquiry is limited to whether the respondent's offense has as an element the use, attempted use, or threatened use of physical force against the person or property of another under § 16(a)....Virginia law is clear that "only the offense of an assault and a battery is encompassed within the statute." Va. Op. Att'y Gen. 99 (1997), 1997 WL 767056 (emphasis added).'

'Accordingly, in regard to crimes against the person, we conclude that the "physical force" necessary to establish that an offense is a "crime of violence" for purposes of the Act must be "violent" force, that is, force capable of causing physical pain or injury to another person. The key inquiry is not the alien's intent for purposes of assault, but rather whether battery, in all cases, requires the intentional use of "violent force."'

Matter of Velasquez, 25 I&N 278 (BIA 2010)