Matter of Mario FRANCISCO-ALONZO, Respondent
U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided June 2, 2015
26 I&N Dec. 594 (BIA 2015)
Interim Decision #3839
In determining whether a conviction is for an aggravated felony crime of violence under
18 U.S.C. § 16(b) (2012), the proper inquiry 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.”
FOR RESPONDENT: Juan C. Gomez, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Andrew Brown, Assistant Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.
PAULEY, Board Member:
In a decision dated October 4, 2010, an Immigration Judge determined that the respondent was not removable as an alien convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
On remand, the respondent filed two motions to terminate, which the Immigration Judge denied. However, in a decision dated April 2, 2014, she granted the respondent‘s motion to reconsider the denial of the motions, agreed with his arguments, and ordered the proceedings terminated. Because of our prior remand order, the Immigration Judge certified the case for our review. The DHS has challenged the Immigration Judge‘s termination of proceedings, and the respondent has requested summary affirmance of her decision. The Immigration Judge‘s decision will be vacated and the record will be remanded for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala and a lawful permanent resident of the United States. He admits that on
In her initial decision, the Immigration Judge granted the respondent‘s motion to terminate proceedings, finding that his felony battery conviction was not categorically for a crime of violence under
In so ruling, we rejected the Immigration Judge‘s consideration of the “eggshell plaintiff” circumstance, in which a relatively mild touching causes great bodily harm to the victim because of his rare fragility. We referred to our decision in Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011), which cited James v. United States, 550 U.S. 192, 208 (2007), for the proposition that, in § 16(b) cases, we look to the risk of violent force that is present in the “ordinary case” arising under the statute of conviction. After reviewing Florida case law on felony battery, we determined that the
The Immigration Judge subsequently granted the respondent‘s motion to reconsider because of the intervening issuance of the United States Supreme Court‘s decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). She concluded that in determining whether an offense is an aggravated felony under the categorical approach, the Court had moved from employing the “ordinary case” analysis to the “least culpable conduct” test. Applying this interpretation of Moncrieffe, the Immigration Judge found that the “least culpable conduct” prosecuted as a felony battery in Florida could be a mere touching where the requisite harm resulted because, for example, the victim had a “preexisting health condition.”
II. ANALYSIS
The issue before us is whether, in determining if the offense of felony battery in violation of
A. Categorical Approach
“To determine whether a state law offense qualifies as a crime of violence for immigration purposes, we employ a categorical approach, looking to the ‘elements and the nature of the offense of conviction, rather than to the particular facts relating to [the alien‘s] crime.‘” Cole v. U.S. Att‘y Gen., 712 F.3d 517, 527 (11th Cir. 2014) (quoting Leocal v. Ashcroft, 543 U.S. 1, 7 (2004)); see also Dixon v. U.S. Att‘y Gen., 768 F.3d 1339, 1343 (11th Cir. 2014); Matter of U. Singh, 25 I&N Dec. 670, 677-78 (BIA 2012). In applying the categorical approach, we must therefore compare the language of the Florida felony battery statute with the definition of a “crime of violence” under
In determining whether a State statute is a categorical match to § 16(a) or other similar “elements-based” offenses in the Act, we consider whether
However, we have applied a different approach in considering whether a State offense qualifies as a crime of violence under § 16(b). Matter of Ramon Martinez, 25 I&N Dec. at 574. In analyzing such cases, we have looked to the Supreme Court‘s guidance in Leocal v. Ashcroft, 543 U.S. at 10, where the Court instructed that § 16(b) covers offenses that involve a person acting in reckless disregard of the risk that physical force might be used against another. This reckless disregard refers not to “the general conduct or to the possibility that harm will result from a person‘s conduct, but to the risk that the use of physical force against another might be required in committing a crime.” Id.; see also Dixon v. U.S. Att‘y Gen., 768 F.3d at 1344. Moreover, the Court stated that in considering whether an offense qualifies as a crime of violence “by its nature” under § 16(b), we should focus on the “ordinary” meaning of the term “crime of violence.” Leocal v. Ashcroft, 543 U.S. at 11 (stating that the “ordinary meaning of this term, combined with § 16‘s emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes“); see also Matter of Ramon Martinez, 25 I&N Dec. at 574.
We have also relied on James v. United States, 550 U.S. 192, where the Court compared a State criminal offense under Florida law to a provision similar to § 16(b) in the Armed Career Criminal Act at
In concluding that the Florida offense of attempted burglary qualified as a “violent felony,” the Court noted in James that the residual clause “speaks in terms of a ‘potential risk,‘” which involves “inherently probabilistic concepts.” James v. United States, 550 U.S. at 207 (emphasis added). Thus, the Court held that it is not necessary to determine whether all prosecutions of the State crime must create a risk of injury to others in order for the State statute to be a categorical match with § 924(e)(2)(B)(ii). See id. at 208 (stating that the categorical approach does not require that “every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury“). Instead, “the proper inquiry is whether the conduct encompassed by the elements of the [State] offense, in the ordinary case, presents a serious potential risk of injury to another.” Id. (emphasis added).
Because § 16(b) defines the term “crime of violence” in “probabilistic” terms similar to the residual clause in § 924(e)(2)(B)(ii), we have applied James in § 16(b) cases and considered “the risk of violent force that is present in the ‘ordinary’ case arising under the statute of conviction.” Matter of Ramon Martinez, 25 I&N Dec. at 574; see also Matter of Chavez-Alvarez, 26 I&N Dec. 274, 282 (BIA 2014), rev‘d on other
Subsequent to James, the Supreme Court restated the method for determining whether a State offense qualifies as a predicate “element-based” aggravated felony under the categorical approach, namely, that when comparing a State offense to a generic Federal offense, we must examine “what the state conviction necessarily involved.” Moncrieffe v. Holder, 133 S. Ct. at 1684 (citing Shepard v. United States, 544 U.S. 13, 24 (2005)). In so doing, the Court also ruled that it must presume that the conviction rested on nothing more than the least of the acts criminalized and then determine whether those acts are encompassed by the generic Federal offense. Id. (citing Johnson v. United States, 559 U.S. at 137). Moncrieffe has therefore changed how we consider the State offense in both the context of the “elements-based” Federal offenses and the broadly descriptive class of offenses in the Act, such as “sexual abuse of a minor” under section 101(a)(43)(A). In cases involving such offenses, we must now “look only to the minimum conduct that has a realistic probability of being prosecuted” under the State statute. Matter of Esquivel-Quintana, 26 I&N Dec. 469, 472 (BIA 2015) (emphasis added) (citing Moncrieffe v. Holder, 133 S. Ct. at 1684-85).
The question presented by the Immigration Judge‘s decision in this case is whether the “ordinary case” analysis in James, as applied to risk-based offenses, has been discarded or superseded by Moncrieffe. We conclude that it has not. Nothing in Moncrieffe purports to cast doubt on James, much less overrule it. See Agostini v. Felton, 521 U.S. 203, 237 (1997) (stating that lower courts should not conclude that more recent cases have overruled an earlier precedent by implication); see also Descamps v. United States, 133 S. Ct. at 2293 n.6 (expressing no view on whether the State conviction qualified as a predicate offense under the “residual clause” of § 924(e)(2)(B)(ii)).
The United States Court of Appeals for the Eleventh Circuit, in whose jurisdiction this case arises, continues to apply the “ordinary case” analysis in cases where the Federal offense (or category of offense) is defined in probabilistic terms. See United States v. Keelan, No. 13-11878, 2015 WL 2215388, at *4 (11th Cir. May 13, 2015) (noting that “[a]ll other circuits to have examined the issue have held the proper inquiry under § 16(b) is whether the conduct encompassed by the elements of the offense raises a substantial risk the defendant may use physical force in the ‘ordinary case‘, even though, at the margin, some violations of the statute may not raise such a risk“); United States v. Travis, 747 F.3d 1312, 1314-15 (11th Cir. 2014); United States v. Eady, 591 F. App‘x 711, 720 (11th Cir. 2014); see also United States v. Avila, 770 F.3d 1100, 1107 (4th Cir. 2014);
B. Application to Section 784.041(1) of the Florida Statutes
Under
Our review of Florida case law reveals that in the “ordinary case,” felony battery under section 784.041(1) is a “violent” crime because the conduct required by the statute involves a substantial risk of physical force being used in the course of committing the offense. Leocal v. Ashcroft, 543 U.S. at 11. For example, in T.S. v. State, 965 So. 2d 1288 (Fla. Dist. Ct. App. 2007), the court agreed that there was sufficient evidence to support a conviction where the perpetrator punched a co-worker in the eye, causing her to suffer a fracture of the eye socket that required reparative surgery. See also, e.g., Lewis v. State, 817 So. 2d 933 (Fla. Dist. Ct. App. 2002) (upholding the conviction where a punch to the victim‘s face required stitches and left a scar); Gaines v. State, 800 So. 2d 732 (Fla. Dist. Ct. App. 2001) (finding sufficient evidence for a felony battery conviction where the victim was knocked to the ground and sustained injuries that included a “busted” lip and loose tooth).
The Eleventh Circuit has determined that Florida felony battery under
The Immigration Judge concluded that “it appears that mere touching not amounting to force could be punished” under
In any case, it does not support the conclusion that
Like the Immigration Judge, we can imagine the possibility of a State prosecution for felony battery where violent physical force was not involved but the victim suffered great bodily injury because of a preexisting physical condition or frailty. However, we are not aware of any such successful prosecutions under this Florida statute. Nor are we convinced that they would constitute the “ordinary case.”
III. CONCLUSION
We conclude that in determining whether a conviction is for an aggravated felony crime of violence under
ORDER: The Immigration Judge‘s April 2, 2014, decision is vacated and the removal proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
Notes
A person commits felony battery if he or she:
(a) Actually and intentionally touches or strikes another person against the will of the other; and
(b) Causes great bodily harm, permanent disability, or permanent disfigurement.
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
any crime . . . that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .
(Emphasis added.) Noting that § 924(e)(2)(B)(i) is “very similar” to § 16(a), the Supreme Court stated that “in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. at 140. The Court held that battery under