Flores, Jose E. v. Ashcroft, John ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3160
JOSE ERNESTO FLORES,
Petitioner,
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals
____________
ARGUED SEPTEMBER 18, 2003—DECIDED NOVEMBER 26, 2003
____________
Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit
Judges.
EASTERBROOK, Circuit Judge. Jose Ernesto Flores
was ordered removed under §237(a)(2)(E) of the Immigra-
tion and Nationality Act, 8 U.S.C. §1227(a)(2)(E), because
he committed a “crime of domestic violence”—which means
any offense that is a “crime of violence” under 18 U.S.C. §16and has a spouse or other domestic partner as a victim. The
crime need not be defined in state law as “domestic”; all
aspects of the definition are federal. But classification of a
state crime under a federal definition can be tricky, and
Flores denies that his offense qualifies. We have jurisdic-
tion to determine whether Flores has committed a remov-
able offense, see Gill v. Ashcroft, 335 F.3d 574 (7th Cir.
2 No. 02-3160
2003); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997), but
if he has done so then we lack jurisdiction to review any
other issues. See 8 U.S.C. §1252(a)(2)(C); Calcano-Martinez
v. INS, 533 U.S. 348 (2001).
Flores pleaded guilty in Indiana to battery, a misde-
meanor, which in that state is any touching in a rude,
insolent, or angry manner. Ind. Code §35-42-2-1. He re-
ceived a one-year sentence because bodily injury ensued.
Flores admitted at a removal hearing that the victim was
his wife. Although he now contends that he was not given
sufficient time before that admission to retain counsel,
a removal proceeding is not a criminal prosecution, and
the Constitution does not of its own force create a right
to legal assistance at every stage. See Stroe v. INS, 256
F.3d 498 (7th Cir. 2001). The immigration judge’s failure to
grant Flores additional continuances before asking ques-
tions about the charges may have violated a regulation, but
given §1252(a)(2)(C) we lack authority to vindicate regul-
ation-based arguments by criminal aliens. (Violation of
a federal regulation differs from violation of the Constitu-
tion. See United States v. Caceres, 440 U.S. 741 (1979).)
By the time the hearing proper arrived, Flores was repre-
sented by counsel, as he has been ever since. Lack of
legal assistance earlier could matter only to the extent it
affected the determination that he committed a crime of
domestic battery—and that would be possible only if, with
the assistance of counsel, Flores might have refused to
make one of the concessions at the earlier, uncounseled
proceedings: that (a) he is the “Jose Ernesto Flores” who
pleaded guilty to the charge, and (b) the victim was his
wife. Yet Flores has never (with or without counsel) denied
either of these things. The issue at hand is entirely legal:
how should the offense created by Ind. Code §35-42-2-1 be
classified for purposes of §237(a)(2)(E)? It would be point-
less to debate whether, some years ago, the immigration
No. 02-3160 3
judge should have afforded Flores more time to hire a law-
yer. We move to the main event.
Section 16 says that “The term ‘crime of violence’
means—(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 substan-
tial risk that physical force against the person or property
of another may be used in the course of committing the
offense.” Because the offense of which Flores was convicted
is a misdemeanor, only §16(a) matters. It is limited to
crimes that have as an element the use of “physical force
against the person . . . of another”. Indiana law provides:
“(a) A person who knowingly or intentionally touches an-
other person in a rude, insolent, or angry manner commits
battery, a Class B misdemeanor. However, the offense is: (1)
a Class A misdemeanor if: (A) it results in bodily injury to
any other person”. Ind. Code §35-42-2-1. Flores pleaded
guilty to this “Class A” version of the misdemeanor offense.
The parties treat bodily injury as an “element” because it
increases the maximum punishment. There are two other
elements: an intentional touching, plus a rude, insolent, or
angry manner. Rudeness has nothing to do with force
(though it increases the offense given by the touching). But
both touching and injury have a logical relation to the “use
of physical force” under §16(a).
Flores observes that Indiana does not require much of
either touching or injury. Any contact counts as a
“touch”—and this includes indirect as well as direct contact,
so a snowball, spitball, or paper airplane qualifies if it hits
the target. Indiana follows the common-law rule under
which any contact, however slight, may constitute battery.
Hamilton v. State, 237 Ind. 298, 145 N.E.2d 391 (1957);
Seal v. State, 246 Ind. 353, 5 Ind. Dec. 451, 205 N.E.2d 823(1965). Touching anything attached to someone else, such
as the person’s glasses, is treated the same as touching the
4 No. 02-3160
body. Impson v. State, 721 N.E.2d 1275 (Ind. App. 2000). As
for injury: a bruise suffices, as does any physical pain even
without trauma. Lewis v. State, 438 N.E.2d 289 (Ind. 1982);
Tucker v. State, 725 N.E.2d 894 (Ind. App. 2000). Indiana’s
courts reached this conclusion because “serious” bodily
injury makes the offense a Class C felony. See Ind. Code
§35-42-2-1(a)(3). It follows, Indiana’s judiciary concluded,
that any physical hurt satisfies §35-42-2-1(a)(1)(A). So if the
paper airplane inflicts a paper cut, the snowball causes a
yelp of pain, or a squeeze of the arm causes a bruise, the
aggressor has committed a Class A misdemeanor (provided
that the act was rude, angry, or insolent). It is hard to
describe any of this as “violence.”
Now Flores did not tickle his wife with a feather during
a domestic quarrel, causing her to stumble and bruise her
arm. That would not have led to a prosecution, let alone to a
year’s imprisonment. The police report shows that Flores
attacked and beat his wife even though prior violence had
led to an order barring him from having any contact with
her. The contempt of court reflected in disobedience to this
order, plus the ensuing injury, likely explains the prosecu-
tion and sentence. The immigration officials ask us to ex-
amine what Flores actually did, not just the elements of the
crime to which he pleaded guilty. The problem with that
approach lies in the language of §16(a), which specifies that
the offense of conviction must have “as an element” the use
or threatened use of physical force. Section 16 adopts a
charge-offense rather than a real-offense approach, as is
common to recidivist statutes. See, e.g., Taylor v. United
States, 495 U.S. 575 (1990). As we explained in United
States v. Howze, 343 F.3d 919 (7th Cir. 2003), it may be
necessary even in charge-offense systems to rely on some
aspects of the defendant’s actual behavior, in order to know
what he has been convicted of: when one state-law offense
may be committed in multiple ways, and federal law draws
No. 02-3160 5
a distinction, it is necessary to look behind the statutory
definition. See also United States v. Shannon, 110 F.3d 382,
384-85 (7th Cir. 1997) (en banc). Howze was itself an
example of this. State law defined, as a single felony, theft
from either a living person or an embalmed body. The
former is (we held) a crime of violence under 18 U.S.C.
§924(e)(2)(B)(ii) and the latter not, because only the former
poses a risk of a violent encounter between thief and victim.
So in Howze we examined the charging papers to learn that
the victim had been alive. Indiana’s battery statute, by
contrast, separates into distinct subsections the different
ways to commit the offense. Particularly forceful touchings,
or those that cause grave injuries, come under subsections
other than Ind. Code §35-42-2-1(a)(1)(A). Thus it is possible
to focus on “the elements” of that crime, as §16(a) requires,
without encountering any ambiguity, and thus without
looking outside the statutory definition. See also Bazan-
Reyes v. United States, 256 F.3d 600, 606-12 (7th Cir. 2001)
(drunk driving is not a crime of violence under the elements
approach of §16, even if injury or death ensues).
Although §16(a) directs attention to the statutory ele-
ments, §237(a)(2)(E) of the immigration laws departs from
that model by making the “domestic” ingredient a real-
offense characteristic. Thus it does not matter for purposes
of federal law that the crime of battery in Indiana is the
same whether the victim is one’s wife or a drinking buddy
injured in a barroom. The injury to a “domestic partner” is
a requirement based entirely on federal law and may be
proved without regard to the elements of the state crime.
See Sutherland v. Reno, 228 F.3d 171, 177-78 (2d Cir.
2000). Substantial evidence, independent of Flores’s ad-
mission, shows that the victim was his wife. When classify-
ing the state offense of battery for purposes of §16(a),
however, the inquiry begins and ends with the elements of
the crime.
6 No. 02-3160
According to the immigration officials, we should grant
Chevron deference to the Board’s decision that Ind. Code
§35-42-2-1(a)(1)(A) satisfies the federal definition. An
earlier decision reached this conclusion, after extended
analysis, with respect to a Connecticut law similar to Ind.
Code §35-42-2-1(a)(1)(A), see Matter of Martin, 23 I.&N.
Dec. 491 (B.I.A. 2002), and in Flores’s case the Board relied
on Martin. Yet Chevron deference depends on delegation,
see United States v. Mead Corp., 533 U.S. 218 (2001), and
§16(a) does not delegate any power to the immigration
bureaucracy (formerly the Immigration and Naturalization
Service, now the Bureau of Citizenship and Immigration
Services), or to the Board of Immigration Appeals. Section
16 is a criminal statute, and just as courts do not defer
to the Attorney General or United States Attorney when
§16 must be interpreted in a criminal prosecution, so there
is no reason for deference when the same statute must be
construed in a removal proceeding. Any delegation of
interpretive authority runs to the Judicial Branch rather
than the Executive Branch. Cf. Adams Fruit Co. v. Barrett,
494 U.S. 638 (1990). One law has one meaning, and a given
state conviction a single classification, whether the subject
arises in removal or in a recidivist prosecution in federal
court. Although the agency’s interpretation in Martin may
have persuasive force, and we must give it careful consider-
ation, it has no binding effect along Chevron’s lines.
Martin is not persuasive. Besides starting with legislative
history rather than the text of §16—the Board saw great
significance in a footnote to the Senate Report, though this
footnote did not purport to disambiguate any statutory lan-
guage and thus lacks weight on the Supreme Court’s view
of legislative history’s significance—the Board made two
logical errors. It relied on decisions such as United States v.
Nason, 269 F.3d 10 (1st Cir. 2001); United States v.
Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000); and United
No. 02-3160 7
States v. Smith, 171 F.3d 617 (8th Cir. 1999), which hold
that state laws penalizing battery with intent to injure are
crimes of violence under §16 (or similar statutes, such as
§924(e)(2)). The Board concluded that this approach is
equally applicable to laws such as Ind. Code §35-42-2-1(a)
(1)(A). The first error is equating intent to cause injury (an
element of the state laws at issue in those decisions) with
any injury that happens to occur. It may well be that acts
designed to injure deserve the appellation “violent” because
the intent makes an actual injury more likely; it does not
follow that accidental hurts should be treated the same
way. Indiana’s battery law does not make intent to injure
an element of the offense; intent to touch must be estab-
lished, but not intent to injure. The Board’s second error
was failure to appreciate the difference between felony and
misdemeanor convictions. When the prior offense is a
felony, then any criminal conduct that involves a “sub-
stantial risk” of physical force may be classified as a crime
of violence under §16(b) or §924(e)(2)(B)(ii). (Howze involved
a prior felony, which is why we looked to the risk of an
altercation breaking out between thief and victim.) But
when the conviction is for a misdemeanor, then physical
force must be an element under §16(a) or §924(e)(2) (B)(i).
Section 16(a) refers to the “use of physical force”. Every
battery entails a touch, and it is impossible to touch some-
one without applying some force, if only a smidgeon. Does
it follow that every battery comes within §16(a)? No, it does
not. Every battery involves “force” in the sense of physics or
engineering, where “force” means the acceleration of mass.
A dyne is the amount of force needed to accelerate one gram
of mass by one centimeter per second per second. That’s a
tiny amount; a paper airplane conveys more. (A newton, the
amount of force needed to accelerate a kilogram by one
meter per second per second, is 100,000 dynes, and a good
punch packs a passel of newtons.) Perhaps one could read
8 No. 02-3160
the word “force” in §16(a) to mean one dyne or more, but
that would make hash of the effort to distinguish ordinary
crimes from violent ones. How is it possible to commit any
offense without applying a dyne of force? Section 16(a)
speaks of “physical force against the person or property of
another” (emphasis added). Cashing a check obtained by
embezzlement requires lots of dynes to move the check into
an envelope for mailing. Suppose someone finds a set of
keys that the owner dropped next to his car and, instead of
taking them to a lost and found, turns the key in the lock
and drives away. One would suppose that to be a paradigm
non-violent offense, yet turning the key in the lock requires
“physical force” (oodles of dynes) directed against the
property (the auto) of another.
To avoid collapsing the distinction between violent and
non-violent offenses, we must treat the word “force” as
having a meaning in the legal community that differs from
its meaning in the physics community. The way to do this
is to insist that the force be violent in nature—the sort that
is intended to cause bodily injury, or at a minimum likely
to do so. We have already drawn just that line. See
Solorzano-Patlan v. INS, 207 F.3d 869, 875 n.10 (7th Cir.
2000); Xiong v. INS, 173 F.3d 601, 604-05 (7th Cir. 1999).
Otherwise “physical force against” and “physical contact
with” would end up meaning the same thing, even though
these senses are distinct in law. This is not a quantitative
line (“how many newtons makes a touching violent?”) but a
qualitative one. An offensive touching is on the “contact”
side of this line, a punch on the “force” side; and even
though we know that Flores’s acts were on the “force” side
of this legal line, the elements of his offense are on the
“contact” side. Because §16(a) tells us that the elements
rather than the real activities are dispositive in misde-
meanor cases, this conviction cannot properly be classified
as a crime of violence, and the basis for Flores’s removal
has been knocked out—along with any obstacle to our
jurisdiction.
No. 02-3160 9
The order of removal is vacated, and the matter is re-
manded to the Board.
EVANS, Circuit Judge, concurring. Although it’s debatable
whether expending dynes (to say nothing about newtons)
pressing the keys of my wordprocessor to concur in this case
is worth the effort, I do so because the result we reach,
though correct on the law, is divorced from common sense.
For one thing, people don’t get charged criminally for
expending a newton of force against victims. Flores actually
beat his wife—after violating a restraining order based on
at least one prior beating—and got a one-year prison
sentence for doing so.
If it is permissible to look to Flores’ “real conduct” to
determine if the person he beat was his wife rather than
some stranger, why does it not make perfectly good sense to
allow an immigration judge to look at what he really did in
other respects as well, rather than restrict the judge to a
cramped glance at the “elements” of a cold statute? The
more information upon which the judge acts, the better. A
common-sense review here should lead one to conclude that
Flores committed a “crime of domestic violence.” Simply
put, by any commonly understood meaning of that term,
that’s exactly what he did, and that should be the end of the
story. We, and the IJ as well in this case, should be able to
look at what really happened.
We recently observed that critics of our system of law of-
ten see it as “not tethered very closely to common sense.”
United States v. Cranley (2003 WL 22718171, decided
November 19, 2003). This case is a good example of why
10 No. 02-3160
that observation hits the nail on the head. Nevertheless,
Judge Easterbrook is correct in applying the law so I join
his persuasive (as usual) and colorful—snowballs, spitballs,
and paper airplanes et al.—opinion. However, I do not
applaud the result we reach. And one final point: Whether
doing what Flores actually did should cause him to be
removed from the country is a question we are without
jurisdiction to answer. For better or worse, that’s a matter
for the executive branch as it attempts to implement the
will of Congress.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-26-03