> Thank you for your reply. I was charged with DV-Misdemeanor in Kansas.
> According the definition,the way Kansas law handles the DV-misdemeanor
> is same as Arizona. Arizona DV-misdemeanor is not deportable. Even
> better, Kansas law allowed me to withdraw the plea, and dismissed the
> case. It seems like you want to be a lawyer. Attached is an article
> for your reference.
> You are right, I am on my way to be an immigrant. Do you know if I
> will be counted as an immigrant or not at the border when I come back
> from my overseas visit? Immigration Service does not fingerprint
> immigrants and citizens. So they will not check my fingerprint if they
> see me as an immigrant. Thank you for your advices!
>
> MISDEMEANOR DOMESTIC BATTERY NOT A CRIME OF VIOLENCE, FLORES V.
> ASHCROFT, SEVENTH CIRCUIT, NOVEMBER 2003 In Flores v. Ashcroft the
> Seventh Circuit held that a respondentconvicted under the Indiana
> Battery statute was not deportable for acrime involving domestic
> violence because there was not a substantialrisk that the offense
> involved the use of force. November 26, 2003,2003 U.S. App. LEXIS
> 24051Download PDF case PROCEDURAL POSTURE: Petitioner sought review of
> an order of the Board ofImmigration Appeals (BIA) which ordered
> petitioner removed under §237(a)(2)(E) of the Immigration and
> Nationality Act, 8 U.S.C.S. §1227(a)(2)(E), because he committed a
> "crime of domestic violence" under18 U.S.C.S. § 16 and had a spouse or
> other domestic partner as a victim.Petitioner pleaded guilty in
> Indiana to battery, a misdemeanor, definedas any touching in a rude,
> insolent, or angry manner. Ind. Code §35--42--2--1. The BIA determined
> that this offense qualified as a "crimeof domestic violence" under 18
> U.S.C.S. § 16 and ordered petitionerremoved under § 237(a)(2)(E). Upon
> review, the court of appeals foundthat the issue was how the offense
> created by Ind. Code § 35--42--2--1should be classified for purposes
> of § 237(a)(2)(E). Although the policereport shows that petitioner
> attacked and beat his wife, the court ofappeals reasoned that § 16
> provided that the statute's elements ratherthan the petitioner's real
> activities were dispositive in misdemeanorcases such that petitioner's
> conviction could not properly be classifiedas a crime of violence.
> Specifically, the court of appeals found thatthe elements of
> petitioner's battery conviction could not properly beviewed as a
> "crime of violence" under § 16 involving a spouse or otherdomestic
> partner as a victim, and thus concluded that petitioner was
> notremovable under § 237(a)(2)(E).The order of removal was vacated,
> and the matter is remanded to the BIAfor further proceedings.
> 1(a)(1)(A).________________JOSE ERNESTO FLORES, Petitioner, v. JOHN
> ASHCROFT, AttorneyGeneral of the United States, Respondent.No. 02-
> 3160UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT2003 U.S.
> App. LEXIS 24051September 18, 2003, ArguedNovember 26, 2003,
> DecidedPRIOR HISTORY: [*1] Petition for Review of an Order of the
> Board ofImmigration Appeals.DISPOSITION: Vacated and remanded.JUDGES:
> Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges.
> EVANS,Circuit Judge, concurring.OPINIONBY:
> EASTERBROOKOPINION:EASTERBROOK, Circuit Judge.Jose Ernesto Flores was
> ordered removed under § 237(a)(2)(E) of theImmigration and Nationality
> Act, 8 U.S.C. § 1227(a)(2)(E), because hecommitted a "crime of
> domestic violence"- which means any offense thatis a "crime of
> violence" under 18 U.S.C. § 16 and has a spouse or otherdomestic
> partner as a victim. The crime need not be defined in state lawas
> "domestic"; all aspects of the definition are federal.
> Butclassification of a state crime under a federal definition can
> betricky, and Flores denies that his offense qualifies. We
> havejurisdiction to determine whether Flores has committed a
> removableoffense, see Gill v. Ashcroft, 335 F.3d 574 (7th Cir. 2003);
> Yang v.INS, 109 F.3d 1185, 1192 (7th Cir. 1997), but if he has done so
> then welack jurisdiction to review any other issues. See 8 U.S.C.
> §1252(a)(2)(C); Calcano-Martinez v. INS, 533 U.S. 348, 150 L. Ed. 2d
> 392,121 S. Ct. 2268 (2001).Flores pleaded guilty in Indiana to
> battery, a misdemeanor, which inthat state is any touching in a rude,
> insolent, or angry manner. Ind.Code § 35-42-2-1. He received a one-
> year sentence because bodily injuryensued. Flores admitted at a
> removal hearing that the victim was hiswife. Although he now contends
> that he was not given sufficient timebefore that admission to retain
> counsel, a removal proceeding is not acriminal prosecution, and the
> Constitution does not of its own forcecreate a right to legal
> assistance at every stage. See Stroe v. INS, 256F.3d 498 (7th Cir.
> 2001). The immigration judge's failure to grantFlores additional
> continuances before asking questions about the chargesmay have
> violated a regulation, but given § 1252(a)(2)(C) we lackauthority to
> vindicate regulation-based arguments by criminal aliens.(Violation of
> a federal regulation differs from violation of theConstitution. See
> United States v. Caceres, 440 U.S. 741, 59 L. Ed. 2d733, 99 S. Ct.
> 1465 (1979).) By the time the hearing proper arrived,Flores was
> represented by counsel, as he has been ever since. Lack oflegal
> assistance earlier [*3] could matter only to the extent itaffected the
> determination that he committed a crime of domesticbattery- and that
> would be possible only if, with the assistance ofcounsel, Flores might
> have refused to make one of the concessions at theearlier, uncounseled
> proceedings: that (a) he is the "Jose ErnestoFlores " who pleaded
> guilty to the charge, and (b) the victim was hiswife. Yet Flores has
> never (with or without counsel) denied either ofthese things. The
> issue at hand is entirely legal: how should theoffense created by Ind.
> Code § 35-42-2-1 be classified for purposes of §237(a)(2)(E)? It would
> be pointless to debate whether, some years ago,the immigration judge
> should have afforded Flores more time to hire alawyer. We move to the
> main event.Section 16 says that "The term 'crime of violence' means-
> (a) an offensethat has as an element the use, attempted use, or
> threatened use of physicalforce against the person or property of
> another, or (b) any other offensethat is a felony and that, by its
> nature, involves a substantial risk thatphysical force against the
> person or property of another may be used in thecourse of committing
> the offense. [*4] " Because the offense of whichFlores was convicted
> is a misdemeanor, only § 16(a) matters. It is limitedto crimes that
> have as an element the use of "physical force against theperson ...of
> another". Indiana law provides: "(a) A person who knowingly
> orintentionally touches another person in a rude, insolent, or angry
> mannercommits battery, a Class B misdemeanor. However, the offense is:
> (1) a ClassA misdemeanor if: (A) it results in bodily injury to any
> other person". Ind.Code § 35-42-2-1. Flores pleaded guilty to this
> "Class A" version of themisdemeanor offense. The parties treat bodily
> injury as an "element" becauseit increases the maximum punishment.
> There are two other elements: anintentional touching, plus a rude,
> insolent, or angry manner. Rudeness hasnothing to do with force
> (though it increases the offense given by thetouching). But both
> touching and injury have a logical relation to the "useof physical
> force" under § 16(a).Flores observes that Indiana does not require
> much of either touching orinjury. Any contact counts as a "touch"- and
> this includes indirect as wellas direct contact, so a snowball,
> spitball, or paper airplane [*5]qualifies if it hits the target.
> Indiana follows the common-law rule underwhich any contact, however
> slight, may constitute battery. Hamilton v.State, 237 Ind. 298, 145
> N.E.2d 391 (1957); Seal v. State, 246 Ind. 353, 5Ind. Dec. 451, 205
> N.E.2d 823 (1965). Touching anything attached to someoneelse, such as
> the person's glasses, is treated the same as touching thebody. Impson
> v. State, 721 N.E.2d 1275 (Ind. App. 2000). As for injury: abruise
> suffices, as does any physical pain even without trauma. Lewis
> v.State, 438 N.E.2d 289 (Ind. 1982); Tucker v. State, 725 N.E.2d 894
> (Ind.App. 2000). Indiana's courts reached this conclusion because
> "serious"bodily injury makes the offense a Class C felony. See Ind.
> Code §35-42-2-1(a)(3). It follows, Indiana's judiciary concluded, that
> anyphysical hurt satisfies § 35-42-2-1(a)(1)(A). So if the paper
> airplaneinflicts a paper cut, the snowball causes a yelp of pain, or a
> squeeze ofthe arm causes a bruise, the aggressor has committed a Class
> A misdemeanor(provided that the act was rude, angry, or insolent). It
> is hard to describe[*6] any of this as "violence."Now Flores did not
> tickle his wife with a feather during a domesticquarrel, causing her
> to stumble and bruise her arm. That would not haveled to a
> prosecution, let alone to a year's imprisonment. The policereport
> shows that Flores attacked and beat his wife even though priorviolence
> had led to an order barring him from having any contact withher. The
> contempt of court reflected in disobedience to this order, plusthe
> ensuing injury, likely explains the prosecution and sentence.
> Theimmigration officials ask us to examine what Flores actually did,
> notjust the elements of the crime to which he pleaded guilty. The
> problemwith that approach lies in the language of § 16(a), which
> specifies thatthe offense of conviction must have "as an element" the
> use orthreatened use of physical force. Section 16 adopts a charge-
> offenserather than a real-offense approach, as is common to
> recidiviststatutes. See, e. g., Taylor v. United States, 495 U.S. 575,
> 109 L. Ed.2d 607, 110 S. Ct. 2143 (1990). As we explained in United
> States v.Howze, 343 F.3d 919 (7th Cir. 2003), it may be necessary even
> incharge-offense systems to rely [*7] on some aspects of the
> defendant'sactual behavior, in order to know what he has been
> convicted of: whenone state-law offense may be committed in multiple
> ways, and federal lawdraws a distinction, it is necessary to look
> behind the statutorydefinition. See also United States v. Shannon, 110
> F.3d 382, 384-85 (7thCir. 1997) (en banc). Howze was itself an example
> of this. State lawdefined, as a single felony, theft from either a
> living person or anembalmed body. The former is (we held) a crime of
> violence under 18U.S.C. § 924(e)(2)(B)(ii) and the latter not, because
> only the formerposes a risk of a violent encounter between thief and
> victim. So inHowze we examined the charging papers to learn that the
> victim had beenalive. Indiana's battery statute, by contrast,
> separates into distinctsubsections the different ways to commit the
> offense. Particularlyforceful touchings, or those that cause grave
> injuries, come undersubsections other than Ind. Code § 35-42-2-
> 1(a)(1)(A). Thus it ispossible to focus on "the elements" of that
> crime, as § 16(a) requires,without encountering any ambiguity, and
> thus without [*8] lookingoutside the statutory definition. See also
> Bazan-Reyes v. United States,256 F.3d 600, 606-12 (7th Cir. 2001)
> (drunk driving is not a crime ofviolence under the elements approach
> of § 16, even if injury or deathensues).Although § 16(a) directs
> attention to the statutory elements, §237(a)(2)(E) of the immigration
> laws departs from that model by making the"domestic" ingredient a real-
> offense characteristic. Thus it does not matterfor purposes of federal
> law that the crime of battery in Indiana is the samewhether the victim
> is one's wife or a drinking buddy injured in a barroom.The injury to a
> "domestic partner" is a requirement based entirely onfederal law and
> may be proved without regard to the elements of the statecrime. See
> Sutherland v. Reno , 228 F.3d 171, 177-78 (2d Cir. 2000).Substantial
> evidence, independent of Flores's admission, shows that thevictim was
> his wife. When classifying the state offense of battery forpurposes of
> § 16(a), however, the inquiry begins and ends with the elementsof the
> crime.According to the immigration officials, we should grant Chevron
> deferenceto the Board's decision that Ind. Code § 35-42-2-1(a)(1)(A)
> [*9] satisfiesthe federal definition. An earlier decision reached this
> conclusion, afterextended analysis, with respect to a Connecticut law
> similar to Ind. Code §35-42-2-1(a)(1)(A), see Matter of Martin, 23
> I.&N. Dec. 491 (B. I.A. 2002),and in Flores's case the Board relied on
> Martin. Yet Chevron deferencedepends on delegation, see United States
> v. Mead Corp., 533 U.S. 218, 150 L.Ed. 2d 292, 121 S. Ct. 2164 (2001),
> and § 16(a) does not delegate any powerto the immigration bureaucracy
> (formerly the Immigration and NaturalizationService, now the Bureau of
> Citizenship and Immigration Services), or to theBoard of Immigration
> Appeals. Section 16 is a criminal statute, and just ascourts do not
> defer to the Attorney General or United States Attorney when §16 must
> be interpreted in a criminal prosecution, so there is no reason
> fordeference when the same statute must be construed in a removal
> proceeding.Any delegation of interpretive authority runs to the
> Judicial Branch ratherthan the Executive Branch. Cf. Adams Fruit Co.
> v. Barrett, 494 U.S. 638, 108L. Ed. 2d 585, 110 S. Ct. 1384 (1990).
> One [*10] law has one meaning, and agiven state conviction a single
> classification, whether the subject arisesin removal or in a
> recidivist prosecution in federal court. Although theagency's
> interpretation in Martin may have persuasive force, and we mustgive it
> careful consideration, it has no binding effect along
> Chevron'slines.Martin is not persuasive. Besides starting with
> legislative historyrather than the text of § 16- the Board saw great
> significance in afootnote to the Senate Report, though this footnote
> did not purport todisambiguate any statutory language and thus lacks
> weight on the SupremeCourt's view of legislative history's significance-
> the Board made twological errors. It relied on decisions such as
> United States v. Nason,269 F.3d 10 (1st Cir. 2001); United States v.
> Ceron-Sanchez, 222 F.3d1169 (9th Cir. 2000); and United States v.
> Smith, 171 F.3d 617 (8th Cir.1999), which hold that state laws
> penalizing battery with intent toinjure are crimes of violence under §
> 16 (or similar statutes, such as §924(e)(2)). The Board concluded that
> this approach is equally applicableto laws such as Ind. Code § 35-42-2-
> 1(a) (1)(A) [*11] . The first erroris equating intent to cause injury
> (an element of the state laws atissue in those decisions) with any
> injury that happens to occur. It maywell be that acts designed to
> injure deserve the appellation "violent"because the intent makes an
> actual injury more likely; it does notfollow that accidental hurts
> should be treated the same way. Indiana'sbattery law does not make
> intent to injure an element of the offense;intent to touch must be
> established, but not intent to injure. TheBoard's second error was
> failure to appreciate the difference betweenfelony and misdemeanor
> convictions. When the prior offense is a felony,then any criminal
> conduct that involves a "substantial risk" of physicalforce may be
> classified as a crime of violence under § 16(b) or §924(e)(2)(B)(ii).
> (Howze involved a prior felony, which is why we lookedto the risk of
> an altercation breaking out between thief and victim.)But when the
> conviction is for a misdemeanor, then physical force mustbe an element
> under § 16(a) or § 924(e)(2) (B)(i).Section 16(a) refers to the "use
> of physical force". Every batteryentails a touch, and it is impossible
> to touch someone without applying[*12] some force, if only a smidgeon.
> Does it follow that every batterycomes within § 16(a)? No, it does
> not. Every battery involves "force" in thesense of physics or
> engineering, where "force" means the acceleration ofmass. A dyne is
> the amount of force needed to accelerate one gram of mass byone
> centimeter per second per second. That's a tiny amount; a paper
> airplaneconveys more. (A newton, the amount of force needed to
> accelerate a kilogramby one meter per second per second, is 100,000
> dynes, and a good punch packsa passel of newtons.) Perhaps one could
> read the word "force" in § 16(a) tomean one dyne or more, but that
> would make hash of the effort to distinguishordinary crimes from
> violent ones. How is it possible to commit any offensewithout applying
> a dyne of force? Section 16(a) speaks of "physical forceagainst the
> person or property of another" (emphasis added). Cashing a
> checkobtained by embezzlement requires lots of dynes to move the check
> into anenvelope for mailing. Suppose someone finds a set of keys that
> the ownerdropped next to his car and, instead of taking them to a lost
> and found,turns the key in the lock and drives away. One would suppose
> [*13] that tobe a paradigm non-violent offense, yet turning the key in
> the lock requires"physical force" (oodles of dynes) directed against
> the property (the auto)of another.To avoid collapsing the distinction
> between violent and non-violentoffenses, we must treat the word
> "force" as having a meaning in the legalcommunity that differs from
> its meaning in the physics community. The way todo this is to insist
> that the force be violent in nature- the sort that isintended to cause
> bodily injury, or at a minimum likely to do so. We havealready drawn
> just that line. See Solorzano-Patlan v. INS, 207 F.3d 869, 875n. 10
> (7th Cir. 2000); Xiong v. INS, 173 F.3d 601, 604-05 (7th Cir.
> 1999).Otherwise "physical force against" and "physical contact with"
> would end upmeaning the same thing, even though these senses are
> distinct in law. Thisis not a quantitative line ("how many newtons
> makes a touching violent?")but a qualitative one. An offensive
> touching is on the "contact" side ofthis line, a punch on the "force"
> side; and even though we know thatFlores's acts were on the "force"
> side of this legal line, the elements ofhis offense are on the [*14]
> "contact" side. Because §16(a) tells us that the elements rather than
> the real activities aredispositive in misdemeanor cases, this
> conviction cannot properly beclassified as a crime of violence, and
> the basis for Flores's removal hasbeen knocked out- along with any
> obstacle to our jurisdiction.The order of removal is vacated, and the
> matter is remanded to the Board.CONCURBY: EVANSCONCUR: EVANS, Circuit
> Judge, concurring. Although it's debatable whetherexpending dynes (to
> say nothing about newtons) pressing the keys of mywordprocessor to
> concur in this case is worth the effort, I do so becausethe result we
> reach, though correct on the law, is divorced from commonsense. For
> one thing, people don't get charged criminally for expending anewton
> of force against victims. Flores actually beat his wife-
> afterviolating a restraining order based on at least one prior beating-
> and got aone-year prison sentence for doing so.If it is permissible to
> look to Flores' "real conduct" to determine ifthe person he beat was
> his wife rather than some stranger, why does it notmake perfectly good
> sense to allow an immigration judge to look at what hereally did in
> other respects as well, rather [*15] than restrict the judgeto a
> cramped glance at the "elements" of a cold statute? The
> moreinformation upon which the judge acts, the better. A common-sense
> reviewhere should lead one to conclude that Flores committed a "crime
> of domesticviolence." Simply put, by any commonly understood meaning
> of that term,that's exactly what he did, and that should be the end of
> the story. We, andthe IJ as well in this case, should be able to look
> at what really happened.We recently observed that critics of our
> system of law often see it as "nottethered very closely to common
> sense." United States v. Cranley, 2003 U.S.App. LEXIS 23573, (2003 WL
> 22718171, decided November 19, 2003). This caseis a good example of
> why that observation hits the nail on the head.Nevertheless, Judge
> Easterbrook is correct in applying the law so I join hispersuasive (as
> usual) and colorful- snowballs, spitballs, and paperairplanes et al.-
> opinion. However, I do not applaud the result we reach.And one final
> point: Whether doing what Flores actually did should cause himto be
> removed from the country is a question we are without jurisdiction
> toanswer. For better or worse, that's a matter for the executive
> branch as[*16] it attempts to implement the will of Congress.http://c-
> allyourlawyers.com/pdfcaselaw/flores_v_ashcroft_7th.pdf
You're welcome, but I have no interest in becoming a liar... er..
lawyer. Immigrants aren't subject to US VISIT. Everyone is subject to
fingerprinting at the border if the need arises.
Since your specific case doesn't appear to make you deportable then it
shouldn't matter anyway. They could defer your inspection or let
adjudications figure it out if there is any doubt.
--
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