Lopes v. Keisler , 505 F.3d 58 ( 2007 )

United States Court of Appeals
For the First Circuit
No. 07-1352
JOSE ROBERTO DUARTE LOPES,
Petitioner,
v.
PETER D. KEISLER, ACTING ATTORNEY GENERAL,
Respondent.*
PETITION FROM A DECISION OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge, and
Oberdorfer, Senior District Judge.**
Roberto Gonzalez for petitioner.
Jennifer Levings, with whom Peter D. Keisler, Assistant
Attorney General, Terri J. Scadron, Assistant Director, and Richard
Zanfardino, Office of Immigration Litigation, were on brief, for
respondent.
October 26, 2007
*
On September 17, 2007, Peter D. Keisler was named Acting
Attorney General. We have therefore substituted Acting Attorney
General Peter D. Keisler for Alberto R. Gonzales as the respondent.
See Fed. R. App. P. 43(c)(2).
**
Of the District of Columbia, sitting by designation.
LYNCH, Circuit Judge. Jose Roberto Duarte Lopes, of Cape
Verde, petitions for review of a decision of the Bureau of
Immigration Appeals upholding an Immigration Judge's order of
removal. At issue is whether Lopes's particular conviction for
assault under Rhode Island law, R.I. Gen. Laws § 11-5-3,
constitutes a crime of violence within the meaning of 18 U.S.C.
§ 16(a).
We hold that the BIA did not err in concluding the crime
was a crime of violence and deny his petition.
I.
Lopes was admitted to the United States on or about
February 18, 1988. On February 15, 1995, he pleaded nolo
contendere to a charge in state court that he committed assault and
battery upon Kimberly Niles, his girlfriend, in violation of R.I.
Gen. Laws § 11-5-3 and the state's Domestic Violence Prevention
Act, R.I. Gen. Laws § 12-29-5. Lopes was sentenced to one year in
prison, which was suspended, and one year of probation.
Lopes was served with a Notice to Appear on November 20,
2001, which charged that, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii)
and § 1227(a)(2)(B)(I), he was removable on account of his 1995
conviction for domestic assault as well as a 1996 state conviction
for possession of cocaine and a 2000 state conviction for
possession of marijuana. On July 29, 2002, the IJ ordered Lopes's
removal on the basis that Lopes's assault conviction constituted an
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aggravated felony within the meaning of 8 U.S.C.
§ 1227(a)(2)(A)(iii) because it qualified as a crime of violence
under 18 U.S.C. § 16(a). In turn, 18 U.S.C. § 16(a) defines a
crime of violence as an offense "that has as an element the use,
attempted use, or threatened use of physical force against the
person or property of another." The IJ also held that Lopes was
subject to removal on the basis of his 1996 drug conviction but not
his 2000 drug conviction, which had subsequently been vacated. The
IJ further held that Lopes did not qualify for a waiver of removal
under § 212(c) of the Immigration and Nationality Act ("INA").
Lopes appealed the IJ's decision to the BIA. On December
30, 2003, the BIA issued an order agreeing with the IJ that Lopes's
assault conviction was for a crime of violence and therefore
rendered him removable. The BIA remanded the case, however, with
respect to whether Lopes was eligible for consideration of § 212(c)
relief, given that his conviction predated the restrictions imposed
by the Antiterrorism and Effective Death Penalty Act of 1996 and
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996.
On June 15, 2005, the government added another removal
charge based on Lopes's 1995 domestic assault conviction, which was
based on the same facts as the charge in the original Notice to
Appear but cited to a different section of the INA.
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On November 28, 2005, the IJ issued an oral opinion
agreeing with the government that Lopes was ineligible for a
§ 212(c) waiver, relying on two BIA cases decided after the IJ's
first opinion. In re Brieva-Perez, 23 I. & N. Dec. 766, 773
(B.I.A. 2005) (alien ineligible for § 212(c) waiver because the
crime of violence ground for removal has no statutory counterpart
in the grounds of inadmissibility under § 212(a) of the INA); In re
Blake, 23 I. & N. Dec. 722, 728 (B.I.A. 2005) (alien ineligible for
§ 212(c) waiver because the aggravated felony ground of removal
with which he was charged has no statutory counterpart in
§ 212(a)). The IJ also rejected Lopes's argument that the record
provided by the government to prove his 1995 assault conviction is
unreliable because it states that he was arrested on August 14,
1995 and that his sentence began on February 15, 1995. The IJ
cited a number of possible reasons for the apparent inconsistency,
including a deliberate decision to backdate Lopes's sentence or
"1996" mistakenly being entered as "1995."
The BIA affirmed the IJ in an opinion issued on January
30, 2007. It again addressed the question of whether the 1995
assault conviction was for a crime of violence.1 Because the
statute, R.I. Gen. Laws § 11-5-3, does not define assault, the BIA
1
It is not clear to us why the BIA did not simply rely on
its earlier affirmance, for purposes of the removal order, that the
1995 assault conviction was for a crime of violence, and why that
question was addressed anew by the IJ on remand. All parties have
treated the question as being an open one before the IJ on remand.
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looked to the state's case law. The BIA noted that the Rhode
Island Supreme Court has defined "assault" as an attempt to do a
bodily harm to another person with "force or violence." State v.
McLaughlin, 621 A.2d 170, 177 (R.I. 1993) (citing State v. Pope,
414 A.2d 781 (R.I. 1980)). The BIA also pointed out that threats
to injure or kill alone, without force or violence, do not
constitute a crime under Rhode Island law. State v. Torres, 787
A.2d 1214, 1221 (R.I. 2002); State v. Pule, 453 A.2d 1095, 1097 &
n.1 (R.I. 1982). The BIA concluded that Lopes was convicted of a
crime of violence as defined in 18 U.S.C. § 16(a) because the crime
for which he was convicted, assault, involved the use or attempted
use of physical force against another person. As to the
documentary basis for proof of the conviction, the BIA found no
error in the IJ's use of the record of conviction provided by the
government, noting that Lopes had not challenged the existence of
the conviction or the statute itself, and "what appears to be a
typographical error in the date of the conviction" is "irrelevant"
to the ultimate question of whether Lopes was convicted of a crime
of violence.
Lopes seeks review of the BIA's decision in this court,
arguing that his conviction for assault does not qualify under 18
U.S.C. § 16(a) as a crime of violence and that the BIA erred by
allowing the IJ to rely on the record of conviction provided by the
government.
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II.
We review the BIA's legal conclusions de novo, Settenda
v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004), but give significant
deference to the BIA's factual findings under the substantial
evidence standard, De Vega v. Gonzales, ___ F.3d ___, 2007 WL
2696489, at *2 (1st Cir. Sept. 17, 2007). Under the substantial
evidence standard, we uphold a decision "unless any reasonable
adjudicator would be compelled to conclude the contrary." Ouk v.
Gonzales, 464 F.3d 108, 111 (1st Cir. 2006) (quoting 8 U.S.C.
§ 1252(b)(4)(B)) (internal quotation marks omitted).
Three federal statutes provide the backdrop for the
government's removal action in this case. The first, 8 U.S.C.
§ 1227(a)(2)(A)(iii), provides that any alien who is convicted of
an "aggravated felony" at any time after admission to the United
States is eligible for deportation. In turn, 8 U.S.C.
§ 1101(a)(43)(F) defines the term "aggravated felony" to include a
"crime of violence (as defined in section 16 of Title 18, but not
including a purely political offense) for which the term of
imprisonment [sic] at least one year." Finally, 18 U.S.C. § 16(a)
defines a "crime of violence" as "an offense that has as an element
the use, attempted use, or threatened use of physical force against
the person or property of another."
The Rhode Island statute under which Lopes was convicted
in 1995, section 11-5-3, is entitled "Simple assault or battery"
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and provides that "every person who shall make an assault or
battery or both shall be imprisoned not exceeding one year or fined
not exceeding one thousand dollars ($1,000), or both." R.I. Gen.
Laws § 11-5-3(a). Lopes argues that the determination should be
made from the face of the statute and he should be considered to
have committed a crime of violence only if every possible
application of section 11-5-3 involves a crime of violence. This
court has already rejected both prongs of the argument. In Conteh
v. Gonzales, 461 F.3d 45 (1st Cir. 2006), this court affirmed the
BIA's adoption of a modified categorical approach to removal
proceedings in determining whether an alien's predicate offense
qualifies as an aggravated felony, but cabined somewhat the
material which may be considered. Id. at 50. The test approved
represents a modification of the approach adopted by the Supreme
Court in Taylor v. United States, 495 U.S. 575 (1990), in assessing
whether a defendant's prior convictions are for violent felonies
under the Armed Career Criminal Act, 18 U.S.C. § 924(e), for
sentencing purposes. That approach was extended to guilty pleas in
Shepard v. United States, 544 U.S. 13, 19-20 (2005).
We have held that when "the statute on which the prior
conviction rests sweeps more broadly, the government . . . must
demonstrate, by reference only to facts that can be mined from the
record of conviction, that the putative offense constitutes a crime
designated as an aggravated felony." Conteh, 461 F.3d at 56. In
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other words, this court will consider whether the crime the
petitioner actually committed -- as demonstrated by the record of
conviction -- constitutes a crime of violence, rather than
hypothesize whether every conceivable conviction under a broad
statute would constitute a crime of violence.
Lopes argues that because the Rhode Island statute refers
to both assault and battery, the BIA was required to consider the
conviction as a "battery." He contends that a battery involves
unintentional touching and so is not a form of violence. We need
not reach the question of whether a battery conviction under Rhode
Island law is a conviction for a crime of violence. The BIA
correctly concluded that the appropriate documents of conviction
established that Lopes committed an assault and that under Rhode
Island case law an assault is a crime of violence.
The documents that the government can use to prove a
criminal conviction in removal proceedings are described in 8
U.S.C. § 1229a(c)(3)(B). These statutory provisions specifically
include the two documents on which the BIA has adjudicated this
case: an official record of plea, verdict, and sentence, 8 U.S.C.
§ 1229a(c)(3)(B)(ii), and a docket entry from court records
indicating the existence of a conviction, id.
§ 1229a(c)(3)(B)(iii). The official record of plea, verdict, and
sentence indicates that Lopes pled nolo contendere to a charge that
he "commit[ted] assault and battery upon the body of Kimberly
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Niles." The criminal docket report states that a plea of nolo
contendere was entered on a count of "simple assault -- domestic."
On the basis of these two documents, it is clear that Lopes was
convicted of assault.
Because section 11-5-3 does not provide a definition of
assault, the BIA appropriately looked to Rhode Island case law to
determine how the state defines the crime. See State v. Jackson,
752 A.2d 5, 9 (R.I. 2000) ("Because statutory definitions are not
given, the common law established by our cases has defined the
term[] 'assault' . . . ."). The Rhode Island Supreme Court has
defined assault as "an unlawful attempt or offer, with force or
violence, to do a corporal hurt to another, whether from malice or
wantonness." McLaughlin, 621 A.2d at 177 (emphases added) (citing
Pope, 414 A.2d at 788). Furthermore, as the BIA noted, under Rhode
Island law there can be no assault without the presence of physical
force.
Thus, a conviction for assault under Rhode Island law
satisfies the statutory definition of a crime of violence because
it has as an element the "attempted use, or threatened use of
physical force against the person or property of another." 18
U.S.C. § 16(a). Rhode Island's definition of assault also
contemplates a "higher degree of intent than negligent or merely
accidental conduct," as the Supreme Court has required. Leocal v.
Ashcroft, 543 U.S. 1, 9 (2004). We therefore hold that Lopes is
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subject to deportation as an aggravated felon under 8 U.S.C.
§ 1227(a)(2)(A)(iii) because the record of conviction establishes
that he was convicted of assault, which as defined by Rhode Island
law constitutes a crime of violence.2
Finally, we turn to Lopes's claim that the record of
conviction is unreliable. Lopes argues that the discrepancy in
dates in his record of conviction violates the requirement of
Woodby v. INS, 385 U.S. 276 (1966), that removal orders be based on
"clear, unequivocal, and convincing evidence."3 Id. at 286. We
disagree. The BIA's determination that the record of conviction is
reliable is amply supported by the evidence. As the BIA noted, the
government has provided certified copies of the conviction record;
Lopes has not challenged the existence of the conviction, the
2
Lopes also suggests that because his conviction could
qualify as either an aggravated felony or a misdemeanor under the
Sentencing Guidelines, U.S.S.G. § 2L1.2, an ambiguity exists and
the rule of lenity should apply. Because Lopes did not present
this argument to the BIA, we need not consider it here. Rumierz v.
Gonzales, 456 F.3d 31, 41 n.12 (1st Cir. 2006). Regardless, the
argument is irrelevant. The statutes at issue are immigration
statutes.
3
At oral argument, Lopes argued for the first time that
his record of conviction is also unreliable because the docket
sheet states that he was convicted of "simple assault -- domestic,"
which does not have a precise statutory counterpart. Because this
argument was not presented before the BIA, the exhaustion doctrine
bars its review in this court. Rumierz, 456 F.3d at 41 n.12. But
in any event, the claim is not a winning one. "Simple assault --
domestic" is an accurate description of the crime to which Lopes
pled guilty. The fact that a court officer uses language to
describe a crime on a docket sheet that does not comport with the
exact language of the corresponding criminal statute(s) does not
render the docket sheet unreliable.
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statute under which he was convicted, or the substance of the
record of conviction; and the discrepancy in dates appears to be a
typographical error and has no bearing on any aspect of the
conviction at issue in this case. We add that the typographical
error on the docket sheet can readily be traced to poor handwriting
indicating the year of sentencing on the record of plea, verdict,
and sentence.
Lopes's petition for review is denied.
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