In a decision that only be described as "two steps backwards" for criminal immigration practitioners (like myself), the Board of Immigration Appeals (Board) issued a precedential decision finding that the proper inquiry for determining whether a conviction is for an aggravated felony crime of violence under 18 U.S.C. § 16(b)  is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.”  In so finding, the Board discarded the standard outlined by the Supreme in Moncrieffe v. Holder which instructed courts to determine what the "least culpable conduct" criminalized by a statute is, and then determine if there is a categorical match between that conduct and the generic federal definition of a crime (in this case, the definition of a crime of violence outlined in 18 U.S.C. § 16(b)).  

The problem is that the Board failed to sufficiently explain how to evaluate what the "ordinary case" of conviction is under a particular statute.  It noted that the respondent in the case had not presented any cases in which Florida has prosecuted someone for felony battery where violent force was not used, but it did not discuss whether the presentation of such a case would mean that the ordinary prosecution still involved such force.  How many cases would the respondent have to find? 5? 10? Must they be published cases? At what point does the ordinary conduct criminalized by a statute include less culpable conduct than one might imagine? 

The full test of Matter of Francisco-Alonzo can be found here: