BIA: Jail time imposed after probation violation counts as original sentence; willful infliction of corporal injury of spouse is crime of violence

In a published decision released last week, the BIA held that a term of imprisonment imposed after a probation violation is considered part of the penalty imposed for the original underlying conviction rather than a penalty imposed for a separate offense. Matter of Perez Ramirez, 25 I&N Dec. 203, 205 (BIA 2010) (Filppu, Cole, and Pauley). The BIA also held that California’s willful infliction of corporal injury on a spouse, Cal. Penal Code § 273.5(a), is a crime of violence type of aggravated felony. Matter of Perez Ramirez, 25 I&N Dec. at 208. Board Member Pauley wrote the opinion for the panel.

This case involved an LPR convicted of misdemeanor infliction of corporal injury on a spouse. Matter of Perez Ramirez, 25 I&N Dec. at 203. No sentence was initially imposed. Matter of Perez Ramirez, 25 I&N Dec. at 203. Rather, the trial court “suspended imposition of a sentence and granted the respondent 36 months of ‘summary probation.’” Matter of Perez Ramirez, 25 I&N Dec. at 203-04. Approximately thirty-three months later, Perez Ramirez violated his probation terms. “His probation was reinstated and continued on the same terms and conditions with certain modifications, i.e., the trial court ordered him to serve 365 days in the Los Angeles County Jail for his offense.” Matter of Perez Ramirez, 25 I&N Dec. at 204. It is worth repeating that the trial court initially did not impose any imprisonment, but, upon Perez Ramirez violating his probation, the trial court modified the sentence to include a 365-day term in the county jail. Matter of Perez Ramirez, 25 I&N Dec. at 204.

As a result of the 365-day jail term Perez Ramirez was placed into removal proceedings charged as an aggravated felon under INA § 101(a)(43)(F) for having been convicted of a crime of violence. Perez Ramirez argued that his 365 day jail term did not satisfy the 1 year term of imprisonment required under § 101(a)(43)(F). Matter of Perez Ramirez, 25 I&N Dec. at 204. He also claimed that willful infliction of corporal injury on a spouse did not involve the use, attempted use, or threatened use of physical force against the person of another as required by 18 U.S.C. § 16(a). Matter of Perez Ramirez, 25 I&N Dec. at 204.

The BIA first addressed whether the jail term was to be considered a sentence imposed for the underlying criminal conviction or for a separate offense. The Board turned to the U.S. Supreme Court’s decision in Johnson v. United States, 529 U.S. 694, 700-01 (2000), in which the Supreme Court “concluded that a prior sentence imposed after the revocation of supervised release is part of the penalty for the original offense.” Matter of Perez Ramirez, 25 I&N Dec. at 205. Relying on Johnson, the BIA held “that the modification of the respondent’s sentence following his probation violation…must be considered to be part of the penalty imposed against him for the original crime giving rise to immigration proceedings, rather than punishment for a separate offense.” Matter of Perez Ramirez, 25 I&N Dec. at 205. As a result, the 365-day jail term satisfied the 1-year term of imprisonment required for a crime of violence aggravated felony under INA § 101(a)(43)(F).

Having concluded that Perez Ramirez was sentenced to a yearlong term of imprisonment, the BIA then turned to whether infliction of corporal injury on a spouse satisfies the use, attempted use, or threatened use of physical force requirement of 18 U.S.C. § 16(a). Citing California criminal jury instructions, the BIA explained that infliction of corporal injury on a spouse requires three elements: “(1) the person inflicted bodily injury upon his spouse, (2) the infliction of bodily injury was willful and unlawful; and (3) the bodily injury resulted in a traumatic condition.” Matter of Perez Ramirez, 25 I&N Dec. at 207. The BIA did not cite any state or federal case for support regarding the elements of this offense.

The BIA then explained that, by statute, “traumatic condition” is defined as “‘a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.’” Matter of Perez Ramirez, 25 I&N Dec. at 208 (quoting Cal. Penal Code § 273.5(c)). As such,

“A person cannot be convicted under section 273.5(a) of the California Penal Code without willfully and directly applying upon another person a force that is of such violence as to cause a wound or external or internal injury to the victim. We are therefore satisfied that the use of physical force against the person of another is an element of the offense within the meaning of 18 U.S.C. § 16(a).” Matter of Perez Ramirez, 25 I&N Dec. at 208.

Importantly, the definition of “force” adopted by the BIA in this decision appears to differ from the definition of “force” adopted by the Fifth Circuit when analyzing crimes of violence. The BIA requires enough “force” “to cause a wound or external or internal injury to the victim,” regardless of the extent of that wound or injury. Matter of Perez Ramirez, 25 I&N Dec. at 208. This suggests that even the most minor of wounds or injuries would constitute a crime of violence.

In contrast, the Fifth Circuit has repeatedly adopted a much more stringent interpretation of “force” for purposes of the crime of violence analysis: “'[F]orce,’ as used in the statutory definition of ‘crime of violence,’ is ‘synonymous with destructive or violent force.’” United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir. 2001) (quoting United States v. Rodriguez-Guzman, 56 F.3d 18, 20 n.8 (5th Cir. 1995)). I do not know how other circuits interpret “force” for the crime of violence analysis, but it is worth looking into when dealing with a crime of violence charge.