DANG

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Matter of Bao Quoc DANG, Respondent
Decided April 28, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The Supreme Court’s construction of “physical force” in Johnson v. United States, 559
U.S. 133 (2010), and Stokeling v. United States, 139 S. Ct. 544 (2019), controls our
interpretation of 18 U.S.C. § 16(a) (2018), which is incorporated by reference into
section 237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1227(a)(2)(E)(i) (2018); the Court’s construction of “physical force” in United States
v. Castleman, 572 U.S. 157 (2014), is inapplicable in this context.
(2) Because misdemeanor domestic abuse battery with child endangerment under section
14:35.3(I) of the Louisiana Statutes extends to mere offensive touching, it is overbroad
with respect to § 16(a) and therefore is not categorically a crime of domestic violence
under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i).
FOR THE RESPONDENT: Kenneth A. Mayeaux, Esquire, Baton Rouge, Louisiana
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Matthew Sidebottom,
Assistant Chief Counsel
BEFORE: 	Board Panel: 	CREPPY, LIEBOWITZ, and PETTY, Appellate Immigration
Judges.
PETTY, Appellate Immigration Judge:
The respondent was convicted of violating a Louisiana law prohibiting
battery of domestic partners. Based on that conviction, an Immigration Judge
found him removable for having been convicted of a crime of domestic
violence under section 237(a)(2)(E)(i) of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1227(a)(2)(E)(i) (2018). The respondent challenges
that finding. 	We must apply the categorical approach to decide whether
Louisiana’s domestic abuse battery statute criminalizes unlawful contact
below the level of “physical force,” as the Supreme Court of the United States
defined that term in Johnson v. United States, 559 U.S. 133 (2010), and
Stokeling v. United States, 139 S. Ct. 544 (2019). Under Louisiana law, the
“force or violence” element of the domestic abuse battery statute is satisfied
by a mere offensive touching. 	We therefore conclude that the statute does
not categorically require “physical force” as required by Johnson and
Stokeling and is not a crime of domestic violence under the INA. 	The

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respondent’s 	appeal 	will 	be 	sustained 	and 	his 	removal 	proceedings
terminated.
I. BACKGROUND
The respondent is a native and citizen of Vietnam and a lawful permanent
resident of the United States. 	In 2017, he was convicted of misdemeanor
domestic abuse battery with child endangerment, in violation of section
14:35.3(I) of the Louisiana Statutes, for which he was sentenced to 2 months’
imprisonment. 1 	Based on this conviction, the Department of Homeland
Security (“DHS”) charged the respondent as removable under section
237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), for having been
convicted of a crime of domestic violence.
The respondent admitted the fact of his conviction but denied that it
rendered him removable. In a motion to terminate his removal proceedings,
and in two subsequent motions to reconsider, the respondent maintained that
his conviction was not a predicate for removal under section 237(a)(2)(E)(i)
of the INA, 8 U.S.C. § 1227(a)(2)(E)(i). The Immigration Judge disagreed,
found the respondent removable as charged, and denied each of the motions.
However, the Immigration Judge granted the respondent’s application for
cancellation of removal under section 240A(a) of the INA, 8 U.S.C.
§ 1229b(a) (2018). 	The respondent 	appealed and 	maintains that his
conviction is not a removable offense. DHS has not cross-appealed the grant
of cancellation of removal. 	Following receipt of the respondent’s initial
brief, we invited both parties to submit supplemental briefs on whether
1 	At the time of the respondent’s offense, his statute of conviction provided, in relevant
part:
A. Domestic abuse battery is the intentional use of force or violence committed by
one household member or family member upon the person of another household
member or family member.
B. For purposes of this Section:
. . . .
(5) “Household member” means any person of the opposite sex presently or
formerly living in the same residence with the offender as a spouse, whether
married or not . . . .
. . . .
I. This Subsection shall be cited as the “Domestic Abuse Child Endangerment
Law.” When the state proves, in addition to the elements of the crime as set forth in
Subsection A of this Section, that a minor child thirteen years of age or younger was
present at the residence or any other scene at the time of the commission of the
offense [certain penalties will be imposed].
La. Stat. Ann. § 14:35.3 (2017).

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a violation of the Louisiana misdemeanor domestic abuse battery statute is
categorically a “crime of domestic violence” under section 237(a)(2)(E)(i),
and both parties did so. We review this question of law de novo. 8 C.F.R.
§ 1003.1(d)(3)(ii) (2021).
II. DISCUSSION
A. Statutory Context
A noncitizen is removable if, at any time after admission, he or she has
been convicted of a “crime of domestic violence.” See INA § 237(a)(2)(E)(i),
8 U.S.C. § 1227(a)(2)(E)(i). 	A “crime of domestic violence” is defined as
any crime of violence (as defined in 18 U.S.C. § 16(a) (2018)) committed by
a perpetrator who has a specified domestic relationship with the victim. 2 Id.
In order to demonstrate that a noncitizen is removable under this provision,
DHS must show both that the statute of conviction is categorically a “crime
of violence” and that the crime was committed by a person with the requisite
domestic relationship to the victim. 	Here, the parties do not dispute the
existence of the domestic relationship, so we consider only whether section
14:35.3 of the Louisiana Statutes is categorically a “crime of violence”
within the meaning of 18 U.S.C. § 16(a).
We determine whether a criminal conviction is a “crime of violence”
under § 16(a), and thus a removable “crime of domestic violence” under
section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), by applying
the categorical approach. 	See Moncrieffe v. Holder, 569 U.S. 184, 191
(2013) (noting that the word “‘[c]onviction’ is ‘the relevant statutory hook’”
requiring 	application 	of 	the 	categorical 	approach 	(quoting
Carachuri-Rosendo 	v. 	Holder, 	560 	U.S. 	563, 	580 	(2010))); 	Matter
of Moradel, 28 I&N Dec. 310, 316–17 (BIA 2021). The categorical approach
focuses on the elements of the respondent’s statute of conviction. See Mathis
v. United States, 579 U.S. 500, 504 (2016). As it is well established, we do
not examine the facts of the respondent’s particular case and we must
presume that his conviction rested upon only the least culpable conduct
proscribed by the statute. 	Moncrieffe, 569 U.S. at 190–91. 	We then
determine 	whether 	the 	least 	culpable 	conduct 	so 	criminalized 	would
necessarily—that is, categorically—be a “crime of violence.” 	See id. 	If
a defendant can be convicted based on conduct that does not fit the definition
of a “crime of violence,” then the statute as a whole, if indivisible, does not
2 	In addition to section 237(a)(2)(E)(i), a number of other statutes, including immigration
statutes, expressly incorporate the definition of “crime of violence” in 18 U.S.C. § 16(a)
by reference. See generally Matter of Alcantar, 20 I&N Dec. 801, 806–07 & nn.3–4 (BIA
1994) (listing provisions).

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categorically define a “crime of violence” and cannot be the predicate for
removal under section 237(a)(2)(E)(i).
A “crime of violence” means “an offense that has as an element the use,
attempted use, or threatened use of physical force against the person or
property of another.” 18 U.S.C. § 16(a). As relevant to this appeal, the key
phrase is “physical force.” 	In addition to § 16(a), Congress has employed
the phrase “physical force” in at least two other related, but subtly distinct,
contexts. 	First, in the Armed Career Criminal Act (“ACCA”), Congress
defined a “violent felony” to be a crime that “has as an element the use,
attempted use, or threatened use of physical force against the person of
another.” 18 U.S.C. § 924(e)(2)(B)(i) (2018) (emphasis added). Second, in
what has come to be known as the Lautenberg Amendment, Congress
defined a “misdemeanor crime of domestic violence” to be “an offense
that . . . is a misdemeanor . . . and . . . has, as an element, the use or attempted
use of physical force . . . committed by” an individual who has a specified
domestic relationship to the victim. 	See 18 U.S.C. § 921(a)(33)(A) (2018)
(emphasis added).
In Matter of E. Velasquez, 25 I&N Dec. 278, 282 (BIA 2010), we
concluded that the Supreme Court’s then-recent decision in Johnson, 559
U.S. at 140—a case interpreting the meaning of “physical force” under the
ACCA, 18 U.S.C. § 924(e)(2)(B)(i) (2006)—controlled our interpretation of
section 237(a)(2)(E)(i). 	Since then, the Supreme Court has addressed the
meaning of “physical force” as it is used in the Lautenberg Amendment in
United States v. Castleman, 572 U.S. 157, 168 (2014), and recently returned
to the meaning of “physical force” under the ACCA in Stokeling, 139 S. Ct.
at 555. 	In doing so, the Supreme Court has ascribed different meanings to
the phrase “physical force” depending on the statutory context in which it is
found.
B. Defining “Physical Force”
1. Case Law Developments
The ACCA provides for criminal sentencing enhancements for certain
felons who have committed three or more “violent felon[ies].” 18 U.S.C.
§ 924(e)(1). In Johnson, 559 U.S. at 140, the Supreme Court held that, “in
the context of [the ACCA’s] definition of ‘violent felony,’ the phrase
‘physical force’ means violent force—that is, force capable of causing
physical pain or injury to another person.” 	Applying this construction of
18 U.S.C. § 924(e)(2)(B)(i), the Court concluded that the defendant’s Florida
battery conviction, which, under State law, required proof of only the merest
offensive touching, did not categorically require proof of violent force, and

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therefore did not qualify as a violent felony. Id. at 138–43. The Court further
explained that applying a definition of “force” derived from the crime of
battery, which encompassed mere offensive touching, would have led to
a “comical misfit” with the term “violent felony” because at common law
battery was a misdemeanor. Id. at 145 (emphasis added). The Court declined
to ascribe to Congress an intent to define “violent felony” to include common
law misdemeanors. Id. at 141–42.
Four months after Johnson was handed down, we decided 	Matter
of E. Velasquez. Noting that the definition of “violent felony” in 18 U.S.C.
§ 924(e)(2)(B)(i) was, “in pertinent part, identical” to the definition of “crime
of violence” in 18 U.S.C. § 16(a), we applied Johnson’s definition of
“physical force” under 18 U.S.C. § 924(e)(2)(B)(i) to our interpretation of
section 237(a)(2)(E)(i), which incorporates § 16(a) by reference. 	Matter
of E. Velasquez, 25 I&N Dec. at 282 (“Johnson controls our interpretation of
a ‘crime of violence’ under § 16(a).”). 	Because the respondent’s Virginia
statute of conviction—misdemeanor assault and battery of a family member
—reached conduct that could not be classified as “physical force” under
Johnson, that is, force capable of causing pain or injury, we concluded that
the statute did not categorically define a crime of violence and therefore did
not 	categorically 	define 	a 	crime 	of 	domestic 	violence 	under 	section
237(a)(2)(E)(i). Id. at 280–81, 283.
Four years after Johnson, the Supreme Court examined the meaning of
the same phrase—“physical force”—as part of the Lautenberg Amendment.
Castleman, 572 U.S. at 162–68. Originally enacted as part of the Omnibus
Consolidated Appropriations Act of 1997, Division A of Pub. L. No.
104-208, 	§ 	658, 	110 	Stat. 	3009, 	3009–371 	(1996), 	the 	Lautenberg
Amendment prohibits the possession of firearms by specified classes of
individuals, including anyone “who has been convicted in any court of
a misdemeanor crime of domestic violence.” 18 U.S.C. § 922(g)(9) (2018).
A “misdemeanor crime of domestic violence,” in turn, is defined as “an
offense that is a misdemeanor . . . and . . . has, as an element, the use or
attempted use of physical force . . . committed by” an individual who has
a specified domestic relationship with the victim. 18 U.S.C. § 921(a)(33)(A).
Castleman explained that domestic violence “encompass[es] acts that one
might not characterize as ‘violent’ in a nondomestic context,” and that
perpetrators of domestic violence are “routinely prosecuted under generally
applicable 	assault 	or 	battery 	laws.” 	572 	U.S. 	at 	164–65 	(quoting
United States v. Hayes, 555 U.S. 415, 427 (2009)). 	Castleman concluded
that, unlike the ACCA provision at issue in Johnson, “physical force” in the
context of a “misdemeanor crime of domestic violence” included even the
minimal 	degree 	of 	force 	necessary 	to 	support 	a 	common-law 	battery
conviction, that is, “even the slightest offensive touching.” 	Id. at 162–63

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(quoting Johnson, 559 U.S. at 139). In contrast to Johnson, where defining
“violent 	felony” 	to 	include 	misdemeanor 	battery 	produced 	nonsense,
Castleman 	explained 	that 	the 	level 	of 	force 	required 	to 	commit
a misdemeanor battery at common law “fits perfectly” in the context of
a “misdemeanor crime of domestic violence.” Id.
Three years ago, the Supreme Court returned to the same ACCA
provision it considered in Johnson, this time examining whether a Florida
robbery statute categorically required proof of “physical force.” 	Stokeling,
139 S. Ct. at 549–50. 	Noting that “force” and “violence” were frequently
used interchangeably in the context of common-law robbery, Stokeling
concluded that the “physical force” necessary to overcome the slightest
resistance of a victim—which is what distinguished robbery from larceny at
common law—is sufficient to constitute “violent force” for purposes of the
ACCA. Id. at 550, 553.
Stokeling distinguished Johnson on the basis that the Florida battery
statute at issue in Johnson tracked the common-law battery definition,
criminalizing “any 	intentional 	physical contact.” 	Id. 	at 553 (quoting
Johnson, 559 U.S. at 140). 	That definition necessarily encompassed force
not capable of causing physical pain or injury, including mere offensive
touching. 	Stokeling reasoned the offensive touching “Johnson addressed
involved physical force that is different in kind from the violent force
necessary to overcome resistance by a victim.” Id. “By contrast,” the Court
held, “the force necessary to overcome a victim’s physical resistance is
inherently ‘violent’ in the sense contemplated by Johnson, and ‘suggest[s]
a degree of power that would not be satisfied by the merest touching.’” Id.
(alteration in original) (quoting Johnson, 559 U.S. at 139). 	Stokeling
concluded 	that 	this 	“understanding 	of 	‘physical 	force’ 	comports 	with
Johnson.” Id. at 552; see also id. at 555 (concluding that “physical force” or
“‘force capable of causing physical pain or injury’ includes the amount of
force necessary to overcome a victim’s resistance” (quoting Johnson, 559
U.S. at 140)); 	Matter of A. Valenzuela, 28 I&N Dec. 418, 423 (BIA 2021)
(applying 	Stokeling 	to 	section 	101(a)(43)(F) 	of 	the 	INA, 	8 	U.S.C.
§ 1101(a)(43)(F) (2018), which defines an aggravated felony crime of
violence by reference to § 16(a)). Because the Florida robbery statute at issue
in Stokeling required proof of force sufficient to overcome a victim’s
resistance, while the Florida battery statute at issue in Johnson did not,
Stokeling concluded that the robbery statute qualified as a “violent felony”
under the ACCA. 139 S. Ct. at 554–55.

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2. Castleman’s Definition of Physical Force Is Inapplicable
DHS urges us to adopt Castleman as a guide to our interpretation of
“crime of domestic violence” under section 237(a)(2)(E)(i) of the INA,
8 U.S.C. § 1227(a)(2)(E)(i). 	First, DHS notes that the phrase “physical
force” appears in both the Lautenberg Amendment and in 18 U.S.C. § 16(a),
and on that basis suggests we should presume Congress intended that the
terms be given the same meaning in both statutory contexts. Second, because
section 237(a)(2)(E)(i) is concerned with crimes of domestic violence, DHS
also 	suggests 	that 	we 	should 	understand 	“physical 	force” 	in 	light 	of
Castleman’s admonition that domestic violence can include “acts that one
might not characterize as ‘violent’ in a nondomestic context.” 	Castleman,
572 U.S. at 165.
DHS’ first argument, based on the canon of consistent usage, was
expressly rejected by the Supreme Court in Castleman. 	See id. at 163 n.3.
Indeed, Castleman’s primary holding was that “physical force” as it is used
in the Lautenberg Amendment means something different than it does in the
ACCA. 	That 	holding 	is 	what 	animated 	much 	of 	Justice 	Scalia’s
disagreement with the majority. See id. at 174 (Scalia, J., concurring in part
and concurring in the judgment) (suggesting the phrase “physical force” in
the Lautenberg Amendment should be given “Johnson’s interpretation”
based on “the presumption of consistent usage”). 	Because Castleman
specifically 	held 	that 	the 	phrase 	“physical 	force” 	in 	the 	Lautenberg
Amendment means something different than “physical force” in the ACCA,
we 	reject 	the 	DHS’ 	suggestion 	that 	the 	phrases 	should 	be 	construed
identically.
DHS’ second argument that the Lautenberg Amendment’s definition of
“physical 	force” 	should apply 	to section 	237(a)(2)(E)(i) because both
provisions address domestic violence, fares no better. 	The Supreme Court
has rejected that argument as well, expressly noting that Castleman did not
extend to section 237. As the Justices explained, “Our view that ‘domestic
violence’ 	encompasses 	acts 	that 	might 	not 	constitute 	‘violence’ 	in
a 	nondomestic 	context 	does 	not 	extend 	to 	a 	provision 	like 	[section
237(a)(2)(E)(i)], which specifically defines ‘domestic violence’ by reference
to a generic ‘crime of violence[]’” under §16(a). Castleman, 572 U.S. at 165
n.4; see also Matter of A. Valenzuela, 28 I&N Dec. at 420 (applying § 16(a)
where expressly incorporated by reference into section 101(a)(43)(F)). 	In
other words, a crime of domestic violence under section 237(a)(2)(E)(i) must
necessarily involve a crime of violence under § 16(a).
Congress could have defined “crime of domestic violence” under section
237(a)(2)(E)(i) by reference to the Lautenberg Amendment’s definition of
“misdemeanor crime of domestic violence.” See 18 U.S.C. § 921(a)(33)(A).

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Instead, it elected to tie removability under section 237(a)(2)(E)(i) to a subset
of “crime[s] of violence” as defined at § 16(a) that also involve a victim with
a particular relationship to the perpetrator. We recognize the serious human
toll of domestic violence, as well as the significance Congress has ascribed
to it. 	See generally Matter of A-M-, 25 I&N Dec. 66, 73–74 (BIA 2009)
(discussing protections Congress has extended to battered noncitizens). We
are also aware that some convictions for domestic violence—particularly
those prosecuted under generally applicable battery statutes—may not
qualify as predicates for removal under Johnson. However, we must hew to
the plain language of the statute Congress has enacted. 	See Niz-Chavez
v. Garland, 141 S. Ct. 1474, 1486 (2021). 	Castleman’s definition of
“physical force” is inapplicable to section 237(a)(2)(E)(i).
3. Johnson and Stokeling Together Define “Physical Force”
For more than a quarter-century, we have treated “physical force” under
18 U.S.C. § 16(a) and the ACCA identically and applied decisions addressing
each provision interchangeably. 	We have noted that because of their
similarity, 	“in 	some 	cases 	the 	question 	whether 	a 	conviction 	under
a particular statutory provision is a ‘crime of violence’ will have been
answered using the same term in another context.” 	Matter of Alcantar, 20
I&N Dec. 801, 807 (BIA 1994); see also Matter of Kim, 26 I&N Dec. 912,
914 (BIA 2017) (noting “Johnson . . . control[s] our interpretation of
§ 16(a)”); 3 Matter of Guzman-Polanco, 26 I&N Dec. 713, 717 (BIA 2016)
(noting the ACCA and § 16(a) are “very similar” (citation omitted)); Matter
of E. Velasquez, 25 I&N Dec. at 282 (same). This practice is consistent with
Johnson itself, which relied heavily on Leocal v. Ashcroft, 543 U.S. 1, 11
(2004)—a case applying 18 U.S.C. § 16—in interpreting the ACCA. 	See
Johnson, 559 U.S. at 140.
Nothing in Castleman or Stokeling calls into question our long-standing
practice of relying on the Supreme Court’s interpretation of “physical force”
in the ACCA in construing that phrase in § 16(a), and the courts of appeals
have likewise continued to rely on precedential decisions interpreting
“physical force” under each of these provisions as applicable to the other. 4
3 	In Matter of Kim, we took note of Castleman but did not address its impact, if any, on
the definition of “physical force.” See 26 I&N Dec. at 919 n.8 (“[W]e do not attempt to
demarcate the precise point at which force becomes ‘violent’ under Johnson.”).
4 	See, e.g., Villanueva v. United States, 893 F.3d 123, 130 (2d Cir. 2018) (“We accept
[the] premise that ‘crime of violence’ in subsection 16(a) is the equivalent of ‘violent
felony’ in subsection 924(e).”); United States v. Studhorse, 883 F.3d 1198, 1203 (9th Cir.
2018) (applying the “near-identical language of the Armed Career Criminal Act” to
articulate the requirements of § 16(a)); Stuckey v. United States, 878 F.3d 62, 68 n.9 (2d

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In Matter of E. Velasquez, 25 I&N Dec. at 282, we explained that “Johnson
controls 	our 	interpretation 	of 	a 	‘crime 	of 	violence’ 	under 	§ 	16(a),”
notwithstanding the fact that Johnson arose in the ACCA context. Following
Stokeling, which was also an ACCA case, we now must read Johnson and
Stokeling together to assess whether a statute categorically requires proof of
“physical force” under § 16(a) in determining removability under section
237(a)(2)(E)(i). 	This level of force is not satisfied by a battery statute that
criminalizes mere offensive touching but is satisfied by a robbery statute that
requires proof of force sufficient to overcome the slightest resistance. 	See
Stokeling, 139 S. Ct. at 553, 555; Johnson, 559 U.S. at 139–40; Matter
of A. Valenzuela, 28 I&N Dec. at 422–23.
C. Application to the Respondent
The question, then, is whether Louisiana’s domestic abuse battery statute
categorically requires proof of “physical force,” as that phrase is understood
by Johnson and Stokeling. We first determine the level of force required by
State law to commit the offense. 	That is a pure question of State law on
which Louisiana courts’ interpretation of Louisiana law controls. 	See
Montana v. Wyoming, 563 U.S. 368, 377 n.5 (2011); Caldwell v. Janssen
Pharmaceutica, Inc., 144 So. 3d 898, 906 (La. 2014). We then compare that
level of force to the definition of “physical force” established by the Supreme
Court in Johnson and Stokeling. 	Having reviewed the pertinent State
authority, we conclude that domestic abuse battery under section 14.35.3 of
the Louisiana Statutes does not categorically require “physical force” within
the meaning of § 16(a).
Louisiana courts have explained that simple battery is an element of
domestic abuse battery. 	Both the Court of Appeals of Louisiana and the
Supreme Court of Louisiana identified two distinct elements of domestic
abuse battery: simple battery and the requisite domestic relationship between
the perpetrator and the victim. 	The court of appeals in State v. Davis
explained that in addition to the commission of a simple battery, “living
together as husband and wife is an additional element of the domestic abuse
battery crimes.” 176 So. 3d 580, 587–88, 97 n.22 (La. Ct. App. 2015), rev’d
on other grounds, 221 So. 3d 28 (La. 2017). Subsequently, in the same case,
the State supreme court confirmed the existence of these separate elements:
“The defendant does not challenge the appellate court’s finding that he
committed a simple battery upon [the victim]. 	The dispute in the present
Cir. 2017) (“[T]he identical language of . . . § 16(a) and § 924(e)(2)(B)(i) means that cases
interpreting . . . one statute are highly persuasive in interpreting the other statute.”);
Douglas v. United States, 858 F.3d 1069, 1071–72 (7th Cir. 2017) (“Leocal dealt with . . .
§ 16(a), which is similar to [§ 924(e)(2)(B)] in the Armed Career Criminal Act.”).

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case is confined to whether the household relationship element was met to
support the conviction for domestic abuse battery . . . .” Davis, 221 So. 3d
at 35 n.9.
In other words, domestic abuse battery is simple battery “committed by
one household member upon the person of another household member.” See
Davis, 221 So. 3d at 31 (citation omitted); see also Davis, 176 So. 3d at 597
n.22. 	And, indeed, this is how domestic abuse battery is charged in
Louisiana. 	See Cheney C. Joseph, Jr. & P. Raymond Lamonica, La. Crim.
Jury Instructions & Procs. Companion Handbook, §§ 10.33–10.34 (Feb.
2022) (noting that simple battery is a lesser included offense of domestic
abuse battery). 	The State rules of criminal procedure likewise refer to
domestic abuse battery as a particular type of simple battery, both involving
the same minimum level of force. 	See La. C. Cr. P. Art. 211.1(C)(1)(c)
(2011).
Finally, we note that Louisiana incorporates simple battery into the
definitions of other types of battery, including sexual battery, see State
v. Trackling, 921 So. 2d 79, 84 (La. 2006), battery on a police officer, see
State v. Johnson, 823 So. 2d 917, 921 (La. 2002) (per curiam), and
aggravated battery, see State v. Chehardy, 157 So. 3d 21, 25 (La. Ct. App.
2013); State v. Brooks, 499 So. 2d 741, 746 (La. Ct. App. 1986). 	The
conclusion that simple battery is an element of and shares a common level of
“force or violence” with domestic abuse battery is consistent with this
broader 	statutory 	structure 	and 	comports 	with 	the 	Supreme 	Court 	of
Louisiana’s directive to “presume[] that the intention of the legislative
branch is to achieve a consistent body of law.” Janssen Pharmaceutica, Inc.,
144 So. 3d at 907–08.
For over a century, Louisiana courts have held that simple battery under
section 14.35 of the Louisiana Statutes and its predecessors may include even
the most trifling or “merely offensive” touching. 	State v. Schenck, 513 So.
2d 1159, 1165 (La. 1987) (“An essential element of battery is ‘physical
contact whether injurious or merely offensive’ . . . .” (citation omitted)),
superseded by statute, La. Acts 1984, No. 924, § 1; State v. Mitchell, 466 So.
2d 514, 517 (La. Ct. App. 1985) (holding that merely touching another is
sufficient force to constitute a simple battery if done while masturbating
because such a touch is “certainly offensive”); see also State v. Dauzat, 392
So. 2d 393, 396 (La. 1980); State v. Tauriac, 813 So. 2d 1187, 1189 (La. Ct.
App. 2002); State v. Robinson, 549 So. 2d 1282, 1284 (La. Ct. App. 1989). 5
5 	The present simple battery statute, section 14:35, was enacted in 1978. See La. Acts
1978, No. 394, § 1. However, Louisiana courts have continued to treat pre-1978 precedent
describing the level of force or violence necessary to commit a simple battery as applicable
to post-1978 offenses. See Robinson, 549 So. 2d at 1284 (citing State v. Foster, 101 So.
255 (La. 1924), and State v. Robertson, 20 So. 296, 298 (La. 1896) (“[A] battery is not

Cite as 28 I&N Dec. 541 (BIA 2022) 	Interim Decision #4043
551
Under Johnson, 559 U.S. at 139–40, if a statute criminalizes mere
offensive touching, it cannot categorically be a crime of violence. As noted
above, Louisiana has held its simple battery statute encompasses trifling or
merely offensive touching. See, e.g., Schenck, 513 So. 2d at 1165; Mitchell,
466 So. 2d at 517. 	As simple battery is a lesser included offense of and
defines the level of force required for domestic abuse battery, Davis, 221 So.
3d at 35 n.9; Davis, 176 So. 3d at 588 n.10, 597 n.22, domestic abuse battery
likewise criminalizes mere offensive touching. Thus, domestic abuse battery
under section 14:35.3 does not categorically require “physical force,” as
defined in 18 U.S.C. § 16(a), and interpreted in Johnson and Stokeling.
Because the respondent’s conviction is not categorically a conviction of
a crime of violence under 18 U.S.C. § 16(a), it cannot be a conviction of
a crime of domestic violence under section 237(a)(2)(E)(i).
III. CONCLUSION
Section 237(a)(2)(E)(i) of the INA incorporates by reference 18 U.S.C.
§ 16(a), which we have explained is “very similar” to the language of
18 U.S.C. § 924(e)(2)(B)(i). Matter of Guzman-Polanco, 26 I&N Dec. at 717
(citation omitted). 	Accordingly, we apply the construction of “physical
force” under 18 U.S.C. § 924(e)(2)(B)(i) as discussed in Johnson and
Stokeling when interpreting 18 U.S.C. § 16(a). Castleman’s interpretation of
“physical force” as part of the definition of a “misdemeanor crime of
domestic violence” is inapplicable.
As interpreted by the Supreme Court of Louisiana, domestic abuse battery
extends to mere offensive touching as discussed in Johnson. The statute is
therefore 	overbroad 	with respect 	to 18 	U.S.C. 	§ 16(a) and 	does not
categorically define a crime of violence. Accordingly, it cannot serve as the
predicate offense for removability under section 237(a)(2)(E)(i) of the INA,
8 U.S.C. § 1227(a)(2)(E)(i). 	We therefore sustain the respondent’s appeal,
vacate the Immigration Judge’s decision, and terminate the proceedings. See
Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012).
ORDER: The respondent’s appeal is sustained.
FURTHER ORDER: 	The decision of the Immigration Judge is
vacated, and removal proceedings are terminated.
necessarily a forcible striking with the hand or stick, or the like, but includes every touching
or laying hold, however trifling, of another person, or his clothes, in an angry, revengeful,
rude, insolent, or hostile manner.”)).