VERY IMPORTANT UPDATE - Flores Vs. Ashcroft
Originally posted by Ooty
Does a conviction for a Class C Misdemeanor for Assault - Family affect 485 ?
Friend Ooty, it is me again, with an interesting update. In the recent
Flores Vs. Ashcroft that was disposed on
November 26, 2003 by a division bench comprising Mr. Justice Easterbrook, Ms. Justice Diane P.Wood, and Mr. Justice Evans, the plaintiff's removal order by Board of Immigration Appeals was set aside, after some very interesting arguments by Mr. Justice Easterbrook to which Mr. Justice Evans concurred.
Flores, the plaintiff had committed greater offenses in my opinion, by violating a restraint order and hitting his spouse thereby causing an injury. This was a Class A Misdemeanor as per the statutes of Indiana State, to which the plaintiff belonged to. Flores observed that Indiana does not require much of either touching or injury as any contact counts as a "touch" and this includes indirect as well as direct contact, so a snowball, spitball, or paper airplane qualifies if it hits the target. So, if the paper airplane inflicts a paper cut, the snowball causes a yelp of pain, or a squeeze of the arm causes a bruise, the aggressor has committed a class A misdemeanor (provided the act was rude, angry, or insolent). "It is hard to describe any of this as violence," observed the Judge
He also proceeded, "..now Flores did not tickle his wife with a feather during a domestic quarrel, causing her to stumble and bruise her arm. That would not have led to a prosecution, let alone to a year's imprisonment. The police report shows that Flores attacked and beat his wife even though prior violence had led to an order barring from having any contact with her."
The Bench clearly and cleverly argued about the first prong of Section 16 of INA, more at theoretical level -- "an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another." So, rather than "practically what Mr. Flores did," the bench thought it was prudent to see the "element" nature of the offense. In other words, they had to analyze the "charge-offense" more than the "real-offense" approach to see if Mr. Flores should be removed.
I found this to be very interesting, "Does it follow that every battery comes within 16(a)? No, it does not. Every battery involves 'force' in the sense of physics or engineering, where 'force' means the acceleration of mass. A newton, the amount of force needed to accelerate a kilogram by one m/sec.) Perhaps one could read the word 'force' in 16(a) to mean one dyne or more, but that would make hash of the effort to distinguish ordinary crimes from violent ones. How is it possible to commit any offense without applying a dyne of force?......To avoid collapsing the distinction between violent and non-violent offenses,we must treat the word 'force' as having a meaning in the legal community that differs from its meaning in the Physics community. The way to do this is to insist that the force be violent in nature-the sort that is intended to cause bodily injury, or at a minimum likely to do so. We have alrady drawn just that line."
To make the long story short, the Bench
cancelled the removal order, thereby vacating the removal and remanding it back to the Board of Immigration Appeals.
This case, is similar to the other guy in Arizona, who typically argued his case by challenging the aptness of being removed on a state offense that was clearly short of the 16(a) statute of the Federal definition of
Crime of Violence.
Please note that this kind of argument is beneficial to only those in whose state the charge is classified as misdemeanor. If it is classified as felony (which is why I used to always make this point clear and ask if it is classified as "felony" or not), you are going to have a tough time, because it is covered under 16(b), pretty clearly, that any clever argument of DYNES, NEWTONS and whole-nine-yards, would make it very difficult to make it tenable.
Bottom-line:
Flores Vs. Ashcroft case would show the legal ramifications to a few in this forum. Please do not get caught in this mess as it is not only against the laws of this land, but against natural law as well. Shun DV. Period. And for people like Ooty, who has reconciled with his wife, just stay relaxed and happy
, as this judgment is another feather in your cap, because yours is also a Misdemeanor and not a felony, to which any attempts to invoke 16(a) can be countered with jurisprudence, primarily
Flores Vs. Ashcroft. Personally, this Judgment was one of the best noetic judgments that I have read in the recent past.
