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Matter of Mario Francisco-Alonzo

In this decision issued in June of 2015, the Board of Immigration Appeals stated that the "ordinary case" test applies to its determination of whether a felony battery conviction under section 784.041(1) of the Florida Statutes meets the crime of violence definition at 18 U.S.C. 16(b).

The ordinary case analysis (and I use the term "analysis" with some hesitation) means that a court applies judicial imagination to hypothesize whether a particular offense would typically involve a substantial risk that the offender may use violence in the course of committing the offense. For example, the Supreme Court has found that residential burglary is the classic example of such an offense, even though the burglar may commit the offense when no one is home and the risk of violence being used is little to none.

Mario Francisco-Alonzo had argued that the Supreme Court's 2013 decision in Moncrieffe v. Holder meant that a crime is a crime of violence only if the least conduct that has a probability of being prosecuted involves a substantial risk of violence. He argued that an offender could commit battery in violation of section 784.041(1) with only a minimal amount of force but still cause serious harm to a so-called eggshell victim and that such a case would not involve a substantial risk of violence. The Board conceded that there might be a situation where a defendant could be prosecuted for use of minimal force against an eggshell victim, but the Board rejected his argument because it concluded that is not the ordinary case for felony battery under section 784.041(1).