SCOTUS Undermines Domestic Violence Ground of Removability

By Andrew R. Arthur on April 20, 2018

In an April 17, 2018 post, I described a decision issued on that date, in which the Supreme Court had ruled that 18 U.S.C. § 16(b), as incorporated into the aggravated felony definition in section 101(a)(43)(F) of the Immigration and Nationality Act (INA) was unconstitutionally vague, affirming a circuit court decision.

In addition to the problems with that decision that I detailed in my post, the Court's ruling will also make it more difficult for U.S. Immigration and Customs Enforcement (ICE) to remove aliens who have been convicted of domestic violence.

In his dissent, Justice Roberts warned about the breadth of the Court's decision as it related to other federal criminal statutes:

[Section] 16 serves as the universal definition of "crime of violence" for all of Title 18 of the United States Code. Its language is incorporated into many procedural and substantive provisions of criminal law, including provisions concerning racketeering, money laundering, domestic violence, using a child to commit a violent crime, and distributing information about the making or use of explosives. Of special concern, §16 is replicated in the definition of "crime of violence" applicable to §924(c), which prohibits using or carrying a firearm "during and in relation to any crime of violence," or possessing a firearm "in furtherance of any such crime." §§924(c)(1)(A), (c)(3). Though I express no view on whether §924(c) can be distinguished from the provision we consider here, the Court's holding calls into question convictions under what the Government warns us is an "oft-prosecuted offense."

Not included in this list was the ground of removability for domestic violence.

Section 237(a)(2)(E)(i) of the INA renders removable: "Any alien who at any time after admission is convicted of a crime of domestic violence. . . . " It goes on to state:

For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of title 18, United States code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who was cohabiting with or has cohabitated with the person as a spouse, by an individual similarly situated to a spouse of a person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against the person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

Thus, the definition of a "crime of domestic violence" for purposes of this ground of removability is dependent upon 18 U.S.C. § 16, the second subsection of which was found to be unconstitutionally vague by the Court.

Domestic violence takes many forms. As Purdue University has explained:

Domestic violence, a systematic pattern of domination and control characterized by a coercive pattern of behavior, may include repeated battery and injury, psychological abuse, sexual assault, progressive social isolation, deprivation, intimidation, and restriction of access to food, clothing, money, friends, transportation, healthcare, and employment.

The costs, both tangible and intangible, of domestic violence are significant. The University of Minnesota Human Rights Library has detailed some of them:

Battering imposes significant costs on the community. According to the National Center for Injury Prevention and Control in the United States, the estimated annual direct medical cost of caring for battered women in the United States is $1.8 billion dollars. Another study, reported by UNICEF, estimates the direct cost in the United States to be between five and ten billion dollars annually. . . . .

As the World Health Organization notes, domestic violence also has significant indirect costs for society. A survey on violence against women in Canada revealed that 30% of battered women had to cease regular activities because of the violence, and 50% had to take sick leave from work because of injuries. A Nicaraguan study found that even after controlling for other factors that could affect earnings, women who were abused earned 46% less than women who were not abused. UNICEF reports that a study in Santiago, Chile, estimates that women who suffer physical violence earn, on average, less than half of the income of women who do not face violence at home.

Crimes of domestic violence are particularly serious, because they involve vulnerable populations in high-risk settings. Again, according to the University of Minnesota Human Rights Library:

Battering may lead to feelings of shame, embarrassment and humiliation, particularly when beatings leave marks, which in turn may lead to further isolation from friends and family and to absences from work. Because of increased absences and substance abuse, battered women may find it difficult to maintain steady employment. Escaping the violence may require a complete abandonment of job, home and belongings. . . .

Other effects include the impact of domestic violence on children, family, friends, co-workers, and the community. Family and friends may themselves be targeted by the abuser in retaliation for helping a woman leave a violent relationship or find assistance.

Children in homes where domestic violence occurs may be witnesses to abuse, may themselves be abused, and may suffer harm "incidental" to the domestic abuse. Understanding the effect of domestic violence on children, and particularly the correlation between spouse and child abuse, is a critical part of an effective community response to violence.

In one of the leading cases on this ground of removability, Sutherland vs. Reno, then-Judge (now Justice) Sonia Sotomayor, writing for a three-judge panel of the Court of Appeals for the Second Circuit, reviewed a Massachusetts conviction for indecent assault and battery on a person over the age of 14 in violation of Mass. Gen. Laws ch. 265, § 13H (1990).

The victim of that offense was the alien's stepdaughter, who lived in his household. According to the court, the criminal provision in question read as follows:

Whoever commits an indecent assault and battery on a person who has attained age fourteen shall be punished by imprisonment in the state prison for not more than five years, or by imprisonment for not more than two and one-half years in a jail or house of correction.

The court began by adopting the analysis employed by the Board of Immigration Appeals (BIA) for applying the domestic violence ground of removability:

As a threshold matter, we agree with the BIA that the determination of whether petitioner's crime constituted a "crime of domestic violence" under [section 237(a)(2)(E)(i) of the INA] involves a two-pronged analysis: (1) whether petitioner's crime was a "crime of violence" as defined by 18 U.S.C. § 16; and (2) whether petitioner's victim was a "protected person" within the meaning of [section 237(a)(2)(E)(i) of the INA].

The alien had been charged with violating the aforementioned state law by "allegedly reaching down the pajama pants of his 19-year-old stepdaughter." He "pleaded guilty to the charge and was sentenced to eleven months' incarceration, suspended, and was placed on probation for a term of three years."

While the alien admitted that this crime is a felony, he denied that it was a "crime of violence" as defined in 18 U.S.C. § 16(b). The court disagreed. First, it noted that under Massachusetts law, this crime is defined as:

A touching ... [that] when, judged by the normative standard of societal mores, is violative of social and behavioral expectations, in a manner which is fundamentally offensive to contemporary moral values and which the common sense of society would regard as immodest, immoral, and improper. So defined the term indecent affords a reasonable opportunity for a person of ordinary intelligence to know what is prohibited.

It then observed that a lack of consent is an element of this offense. The court continued:

In its determination, the BIA reasoned that, because any offense under § 13H is, by definition, nonconsensual, "the existence of lack of consent by the victim necessarily creates a substantial risk that the perpetrator may use force or violence to accomplish the indecent touching of the victim." . . . Like the BIA, we are persuaded that any violation of Mass. Gen. Laws ch. 265, § 13H, by its nature, presents a substantial risk that force may be used in order to overcome the victim's lack of consent and accomplish the indecent touching.

* * * *

Because the victim's non-consent is a necessary element for conviction under Mass. Gen. Laws ch. 265, § 13H, we hold that petitioner was convicted of a "crime of violence" within the meaning of 18 U.S.C. § 16(b).

As the victim of that offense was "protected by the domestic or family violence laws of Massachusetts," the court concluded that the alien was removable as charged.

Under the Supreme Court's decision, this offense would not render the alien removable from the United States, because the ground of removal is reliant upon the so called "residual clause" in 18 U.S.C. § 16(b).

It is not clear how many of the offenses that would be, or would have been, included in the domestic violence ground of removability are affected by this decision. Given the serious effect of those offenses on not only the victim, but also the victim's friends, family, and society, and the role that removal would play in shielding those individuals from such offender, it is incumbent upon Congress to act to protect a particularly vulnerable population of victims.