INA § 237(a)(2)(E) states:
(i)Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. 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 is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a 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.
(ii)Any alien who at any time after entry is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.
18 U.S.C. § 16 defines a crime of violence as
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Texas Penal Code §22.01 is the basic assault statute in Texas.
The Fifth Circuit, in US v. Villegas-Hernandez, 468 F.3d. 847 (5th Cir. 2006), found that misdemeanor assault, under §22.01, is not a crime of violence. In so finding, the Court addressed the question of whether “a conviction for that offense could not be sustained without proof of the use of destructive or violent force.” Id. at 879. The Court found that “injury could result from any of a number of acts, without use of destructive or violent force,” therefore use of force is not an element of assault under §22.01(a)(1). Id. Applying the modified categorical approach, the Fifth Circuit found that misdemeanor assault under Texas Penal Code § 22.01(a) was not a crime of violence. Id. at 883.
In an unpublished opinion, Seerattan v. Keisler, No. 06-60636 (5th Cir. 2007), the Fifth Circuit found that a misdemeanor assault under Texas Penal Code §22.01 could not be a crime of domestic violence, since it could not be a crime of violence under Villegas-Hernandez.
It should be noted that Villegas-Hernandez addressed the issue of a misdemeanor assault. The issue applied 18 U.S.C. §16(a). A felony offense under Tex. Penal Code § 22.01 would likely have a different outcome, as the question of whether the offense was a crime of violence would be analyzed under 18 U.S.C. §16(b) as well.
As to whether the offense involved a family member, recent decisions from both the BIA and the Fifth Circuit have found that, for an offense to be a crime of domestic violence under INA § 237 237(a)(2)(E), that the victim of the crime is a family member need to be an element of the offense pled in the charging instrument. An immigration court may apply a circumstance-specific approach, considering all reliable evidence, in the determination of whether the victim was a family member. Matter of H. Estrada, 26 I & N Dec. 479 (BIA 2016), citing Bianco v. Holder, 624 F.3d 265, 272-73 (5th Cir. 2010).
The text of this statute is copied from the US Government Print Office at gpo.gov . I do not warrant the accuracy of the text of the statute. All annotations are meant solely as a starting point for legal research and not as authority. Annotations should not be considered legal advice. I do not warrant the accuracy of the interpretation of case law.