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I was in the queue with a question when the conference ended. I would like to obtain some clarification of this issue of probation as a sentence in lieu of incarceration and the effect that has on an aggravated felony determination. I have a client who pled guilty in 1999 to battery against his wife. He received one year (365 days) of probation and a suspended thirty day sentence. He did not violate the terms of his probation so he did not serve jail time, other than the one night when he was arrested.

The municipal statute under which he was convicted - battery - states that this includes the knowing or reckless use of force against the person of another. It also states that every crime of battery includes a crime of assault. For all intents and purposes this meets the requirements of 18 USC 16(a) and it also satisfies the definition of crime of domestic violence under INA 237(a)(2)(E) but it likely does not satisfy the crime of violence definition of 101(a)(48), aggravated felony, because he was never actually imprisoned. If you don't have a crime of violence that results in the aggravated felony definition, do you by extension not have the crime of violence for satisfaction of the domestic violence section either? We had advised him to pursue the matter with his criminal attorney as he has a good argument for having the plea removed. But if that is unnecessary I would like to advise him accordingly. He is a conditional lawful permanent resident attempting to self petition to have conditions removed (they are now divorced).

Answer by Lory Rosenberg:

It is a crime of violence, although not an aggravate felony under (F); therefore it is a crime of violence for crime of domestic violence purposes.

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