Justice Sotomayor does us all a favor; lets us know the decision in Castleman does not affect immigration law.

Sunday, April 27th, 2014
By: Jonathan MontagJ.D.

Appellate courts are deliberately cagey. When they make a decision, they normally limit their decisions to the facts in a case. When other issues arise not related to the case under consideration, they will write sentences like, “We reserve deciding that issue,” or “We do not need to decide this issue to resolve this case,” or other such verbiage. When a decision’s scope is not clear, appellate courts are reluctant to express limits to the impact of a decision, willing to let subsequent cases percolate up to define the contours of the earlier decision. There are good reasons for limiting decisions to the case before it based on the Supreme Court’s limited role in the judicial system as a reviewer of the legality and constitutionality of laws by addressing them in a case by case basis, rather than more broadly reviewing laws and regulations and interpretations of laws and regulations to determine their legality before they are implemented, like the French Conseil Constitutional, as just one of many examples, does.

When an appellate court publishes a decision, in a very real sense it is a new law or laws. The law-making authority of appellate judges is an non-arguable fact of the American judicial system. Only some Republican legislators seem not to understand this simple fact.  Attorneys use the decision to influence the law by trying to expand the doctrine of the new law to other areas of the law. As ours is an adversary system, the other side on an issue tries to limit the applicability of the law to the facts of the case. It is this push and pull that causes the evolution of the law and is what makes practicing law interesting.

A recent case of the Supreme Court, United States v. Castleman,  departed from this formula, expressing an opinion outside of the context of the facts of the case, thus eliminating (hopefully) a move by immigration prosecutors to try to get courts to reverse the current consensus on what a crime of domestic violence in the immigration law context. Castleman is not an immigration case. Rather, it is a criminal case. Mr. Castleman was convicted of a Tennessee crime, for “intentionally or knowingly cause[d] bodily injury to” the mother of his child, in violation of Tenn. Code Ann. §39–13–111(b).  He, after he was discovered seling guns on the black market, was then was charged with violating 18 U.S.C. § 922(g)(9), which forbids the possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence.”

The issue in the case was whether the Tennessee conviction was a crime of domestic violence. At first blush, the question might not seem that complicated. After all, it seems quite obvious that causing bodily injury to the mother of someone’s child is domestic violence. However, the law is not that simple or obvious. Many cases have interpreted “domestic violence” to require that an act be “domestic,” i.e., committed against a person one is related to or intimate with, and involve violence, i.e., using substantial force. As the Tennessee statute could lead to a conviction without the use of violent force, such as an unwanted touching or something not violent, like poisoning, Mr. Castleman argued that his misdemeanor battery conviction should not necessarily be considered “domestic violence.”

Justice Sotomayor, writing the majority opinion in the case, distinguished 18 U.S.C. § 922(g)(9) from other contexts and held that even a simple battery domestic violence conviction, absent substantial force, violates 18 U.S.C. § 922(g)(9).

There is an immigration statute, INA § 237(a)(2)(E), which makes a person who commits a crime of domestic violence deportable. In the immigration context, courts of appeal and the Board of Immigration Appeals  have concluded that the crime needs to involve a substantial use of force. When reading Castleman, a panic initially set in. “Oh no! This case will begin efforts by immigration prosecutors to apply Castleman to the immigration arena and try to render removable aliens convicted of minor domestic battery offenses – offenses such as when a wife threw a paper cup of water at her husband or a husband lobbed a pen at his wife, or a husband hit his wife with saliva while arguing. Fortunately (for those convicted of paper cup or spittle-related battery convictions), Justice Sotomator dropped Footnote 4 in her decision, writing:

We note [] that federal law elsewhere defines “domestic violence” in more limited terms: For example, a provision of the Immigration and Nationality Act defines a ” ‘crime of domestic violence’ ” as “any crime of violence (as defined by [18 U. S. C. §16])” committed against a qualifying relation. [INA § 237](a)(2)(E)(i). Our view that “domestic violence” encompasses acts that might not constitute “violence” in a nondomestic context does not extend to a provision like this, which specifically defines “domestic violence” by reference to a generic “crime of violence.

Thankfully, by adding this footnote, we can be reasonably assured that prior interpretations of domestic violence in the immigration context remain intact. To the extent this observation is respected, and I suppose some would label it dicta and thus not a law derived from the case, we do not have to spend the next decade re-litigating whether convictions for unwanted touching and other minor uses of force against a relative or partner are grounds for deportation. What is bad for spittle-prone gun owners is, fortunately, not bad for spittle-prone non-citizens, this footnote makes clear. Thanks, Justice Sotomayor, for Footnote 4. Posted April 27, 2014.


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