Jason Winston v. Eric Holder, Jr. , 439 F. App'x 249 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1403
JASON THURL WINSTON,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals
Submitted: July 8, 2011 Decided: July 18, 2011
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Jason Thurl Winston, Petitioner Pro Se. Rosanne Perry, Trial
Attorney, Tyrone Sojourner, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Thurl Winston, a native and citizen of Dominica,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order finding him removable for committing a crime of
domestic violence and for violating an order of protection. See
8 U.S.C. § 1227(a)(2)(E)(i), (ii) (2006). We deny the petition
for review.
Winston entered the United States on a K-3
nonimmigrant visa on March 14, 2010. On May 10, 2010, he pled
guilty to assault and battery under Va. Code Ann. § 18.2–57.2,
following an altercation with his wife in which he grabbed her,
attempted to choke her, and punched a wall. On the same day, he
pled guilty to violation of a protective order under Va. Code
Ann. § 16.1-253.2 for sending his wife a letter from prison in
which he told her that he loved her and asked her to drop the
protective order and post bond for him. In removal proceedings,
the immigration judge and the Board found that the Government
properly met its burden of establishing by clear and convincing
evidence that Winston was removable as charged. See 8 U.S.C.
§ 1229a(c)(3)(A) (2006). Winston did not seek relief from
removability.
We have reviewed the record and find that Winston’s
conviction for assault and battery against a family member was a
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crime of domestic violence. Under 8 U.S.C. § 1227(a)(2)(E)(i),
an alien who commits a crime of domestic violence is deportable.
A “crime of domestic violence” is any crime of violence, as
defined by 18 U.S.C. § 16, committed against a specified group
of persons, including a current spouse. A “crime of violence”
is defined in § 16(a) 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.”
Winston’s conviction for assault and battery against
his wife under Va. Code Ann. § 18.2–57.2 is not categorically a
“crime of violence” because Virginia’s common law conception of
battery includes any offensive touching, not only the use of
physical force. United States v. White, 606 F.3d 144, 153-55
(4th Cir. 2010). However, where the elements of a crime are
ambiguous, this Court uses a “modified categorical approach” and
examines the charging documents to determine whether the crime
was violent. United States v. Kirksey, 138 F.3d 120, 124 (4th
Cir. 1998). In this case, the immigration judge examined the
charging documents and found that Winston pled guilty to
grabbing his wife during an argument, attempting to choke her,
and punching a wall. This meets the definition of a “crime of
violence,” and thus Winston’s guilty plea renders him
deportable.
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The Board of Immigration Appeals further found Winston
deportable on an alternative ground, namely for violating “the
portion of a protection order that involves protection against
credible threats of violence, repeated harassment, or bodily
injury to the person or persons for whom the protection order
was issued[.]” See 8 U.S.C. § 1227(a)(2)(E)(ii). Winston
argues that his sending his wife a letter from jail in which he
told her that he loved her and asked her to drop the protective
order and post bond for him did not constitute either a threat
of violence, repeated harassment or bodily injury. The
Government responds that even if Winston’s actions did not rise
to that level, the no-contact portion of the protective order
“involves protection against” violence and harassment, and §
1227(a)(2)(E)(ii) does not require that the violation actually
constitute violence or harassment. See Alanis-Alvarado v.
Holder, 558 F.3d 833, 839-40 (9th Cir. 2009). This Circuit has
not decided this issue, and does not do so here, because
Winston’s conviction for assault and battery against his wife is
sufficient to find him deportable under 8 U.S.C. §
1227(a)(2)(E)(i).
Appellant also argues in his brief that his court-
appointed attorney did not advise him of possible immigration
consequences to his pleading guilty to the charges of assault
and battery and violation of the protective order. The Sixth
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Amendment right to effective assistance of counsel includes the
right to be informed of potential immigration consequences to a
guilty plea. Padilla v. Kentucky, 130 S.Ct. 1473, 1486 (2010).
However, if Appellant wishes to make a case based on ineffective
assistance of counsel, he must file for post-conviction relief
in his state criminal case. Ugwu v. Gonzalez, 242 Fed. App’x.
917, 918 (4th Cir. 2007) (citing Abiodun v. Gonzales, 461 F.3d
1210, 1217 (10th Cir. 2006); Olivera-Garcia v. INS, 328 F.3d
1083, 1087 (9th Cir. 2003); Trench v. INS, 783 F.2d 181, 184
(10th Cir. 1986); Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir.
1981)). “[T]he immigration judge and the Board cannot go behind
the criminal judgment and consider an alien's collateral attack
on his conviction”—and neither can we. Id.Accordingly, we deny the petition for review. We deny
Winston’s motion to strike the Attorney General’s brief. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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