Romio Villagomez, a native of the Federated States of Micronesia, was convicted in Nevada of felony battery resulting in substantial bodily harm under N.R.S. § 200.481(2)(b). Following his conviction, the Department of Homeland Security initiated removal proceedings, classifying the conviction as an aggravated felony because it constitutes a crime of violence. An Immigration Judge ordered Villagomez removed, and the Board of Immigration Appeals dismissed his appeal. Villagomez petitioned the Ninth Circuit for review, arguing that his conviction did not meet the federal definition of a crime of violence because the Nevada statute could theoretically be satisfied by conduct involving mere unwanted touching or reckless conduct, which fall outside the federal categorical framework.
The panel, writing for the court, applied the categorical approach to determine if the Nevada statute criminalizes conduct broader than the federal generic offense. The court first addressed the actus reus, or physical force, requirement. Citing its prior binding decision in United States v. Fitzgerald, the court held that inflicting 'substantial bodily harm' in Nevada necessarily requires 'Johnson-level force,' defined as force capable of causing physical pain or injury. The court rejected Villagomez's argument that the statute covers mere unwanted touching, noting that while simple battery might, the aggravated version requiring 'prolonged physical pain' acts as a filter that ensures only Johnson-level force is used. The court clarified that hypothetical scenarios involving burn victims did not create a realistic probability of overbreadth. Second, the court addressed the mens rea, or mental state. Villagomez argued that the statute allowed for reckless conduct, which the Supreme Court in Borden v. United States excluded from the definition of a crime of violence. The court explained that Nevada battery is a general intent crime requiring the intent to use force. Because it takes Johnson-level force to cause substantial bodily harm, and the defendant must intend to use that force against another, the defendant necessarily intends to cause the resulting harm. Furthermore, Nevada law clarifies that the statute does not encompass injuries caused by reckless or accidental deployments of force. Thus, the statute requires a mens rea more culpable than simple recklessness, satisfying the requirements of Borden and United States v. Gomez.
The decision affirms Villagomez's removal order, confirming that individuals convicted of Nevada felony battery resulting in substantial bodily harm are subject to deportation as aggravated felons. The ruling reinforces the Ninth Circuit's precedent that the aggravating element of 'substantial bodily harm' in Nevada statutes functions as a sufficient filter to ensure a categorical match with federal crimes of violence. No remand instructions were issued as the petition was denied.
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