Garcia-Meza, Carlos v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2215
CARLOS GARCIA-MEZA,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,Œ
Respondent.
____________
On Petition for Review of an Order of the
Board of Immigration Appeals.
No. A47 764 554
____________
ARGUED NOVEMBER 30, 2007—DECIDED FEBRUARY 5, 2008
____________
Before EASTERBROOK, Chief Judge, and FLAUM and
WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. The immigration authorities
believe that Carlos Garcia-Meza has committed a “crime
of moral turpitude” that warrants his removal from this
country. See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Garcia-Meza, a
native and citizen of Mexico, has been a lawful permanent
resident of the United States since 2001. The Illinois
crime to which he pleaded guilty in 2002 sounds fearsome
Œ
We have replaced Alberto Gonzales with Michael Mukasey
as the named respondent. See Fed. R. App. P. 43(c)(2).
2 No. 07-2215
enough: “aggravated battery of a peace officer.” See 720
ILCS 5/12-4(b)(6). But states are free to give whatever
names they like to crimes, and a brief look at Illinois law
shows that the behavior punished under this statute can
be small potatoes. Spitting on someone, for example,
qualifies as battery, and if the victim is a police officer,
it is aggravated battery. See People v. Peck, 633 N.E.2d
222, 223 (Ill. App. Ct. 1994). Garcia-Meza’s own crime
was to grab two of a police officer’s fingers and twist them.
He had asked for the officer’s name and at the same time,
ill-advisedly moved his hand toward the officer’s name
tag. The officer pushed his hand away, and that’s when
the grabbing happened. The officer was not injured, and
Garcia-Meza received two years’ probation.
The immigration judge and then the Board of Immigra-
tion Appeals rejected Garcia-Meza’s argument that his
crime is not morally turpitudinous, and issued a final
order of removal. This petition for review followed. For
the reasons set out below, we grant the petition for re-
view, vacate the BIA’s decision, and remand for further
proceedings.
Although the phrase “crime involving moral turpitude”
is notoriously baffling, the Supreme Court has rejected
a vagueness challenge to it, Jordan v. De George, 341
U.S. 223, 232 (1951), so we will not dwell on Garcia-Meza’s
own such challenge. See Soetarto v. INS, 516 F.2d 778, 780
(7th Cir. 1975). The Board defines crime of moral turpi-
tude as “conduct that shocks the public conscience as
being ‘inherently base, vile, or depraved, and contrary to
the accepted rules of morality and the duties owed be-
tween persons or to society in general.’ ” In re Solon, 24
I. & N. Dec. 239, 240 (BIA 2007) (quoting In re Ajami, 22
I. & N. Dec. 949, 950 (BIA 1999)). We put our own gloss
on the term in Mei v. Ashcroft, 393 F.3d 737, 740 (7th Cir.
2004), stating that crimes of moral turpitude are usually
serious crimes (in terms of the magnitude of the loss
No. 07-2215 3
they cause or the indignation in the public they arouse)
that are committed deliberately.
In holding in this case that an Illinois conviction for
aggravated battery of a peace officer is such a crime,
both the IJ and the BIA relied heavily on In re Danesh, 19
I. & N. Dec. 669 (BIA 1988), in which the Board found that
a Texas conviction for aggravated assault on a police
officer was a crime of moral turpitude. But a critical fact
distinguishes this case from Danesh, although both the
IJ and the BIA missed it. (The IJ stated that Danesh
was “directly on point.”) Namely, the Texas statute at
issue in that case required as an element that the officer
sustain bodily injury. Id. at 673. The Illinois statute at
issue here contains no such requirement. The BIA mis-
takenly thought that it does, but even the Attorney
General concedes that this was error; we shall briefly
explain why. The Illinois statute punishes two types of
battery: intentionally or knowingly causing another
“bodily harm,” or making “physical contact of an insulting
or provoking nature.” 720 ILCS 5/12-3(a)(1)-(2) (2003).
Garcia-Meza’s charging papers indicate that he com-
mitted the second type of battery: he made contact of an
insulting or provoking nature. A second Illinois statute
lists aggravations of simple battery, including when the
batterer “Knows the individual harmed to be a peace
officer . . . while such officer . . . is engaged in the execu-
tion of any official duties.” 720 ILCS 5/12-4(b)(6) (2003).
The Board thought that the language “the individual
harmed” encompasses a bodily harm requirement, but the
Supreme Court of Illinois rejected this reading almost
thirty years ago, People v. Hale, 395 N.E.2d 929, 931-32
(Ill. 1979), holding that “the individual harmed” simply
means the victim of the battery. Battery of the insulting
or provoking variety can indeed become aggravated bat-
tery against a peace officer even if the officer sustains
no bodily injury.
4 No. 07-2215
This fact distinguishes our case from Danesh. The
government believes the distinction is immaterial, but
we disagree. The BIA itself in Danesh emphasized the
bodily harm requirement in concluding that the assault
crime was serious enough to be turpitudinous. 19 I. & N.
Dec. at 673. The Board also noted that the Texas stat-
ute—like the Illinois statute here—requires that the
accused know that the victim is a peace officer, and
stated that violating it therefore “exhibits a deliberate
disregard for the law.” Id. Hence the statute in Danesh
shares the Illinois statute’s requirement that the ac-
cused know that the victim is an officer (suggesting that
Garcia-Meza’s crime is turpitudinous) but is more de-
manding than the Illinois statute in requiring that the
victim suffer bodily injury (suggesting that it is not).
The question then becomes whether knowledge that the
victim is a police officer, without any requirement of
harm or violence, renders battery of a peace officer
turpitudinous. If so, the BIA’s decision can be saved
despite the Board’s misapplication of the Illinois battery
statute. The Board has not decided this precise question,
but its subsequent reading of Danesh suggests that bat-
tery of a police officer without causing harm is not a
crime of moral turpitude. In In re Sanudo, 23 I. & N. Dec.
968 (BIA 2006), the Board considered whether domestic
battery in California is a crime of moral turpitude. In
noting that assault and battery can be morally tur-
pitudinous but usually aren’t, the court cited a string of
decisions including Danesh that involved “the infliction
of bodily harm upon a person whom society views as
deserving of special protection, such as a child, a domestic
partner, or a peace officer.” Id. at 971-72. But then the
Board distinguished those cases, stating that the crimes
there “were defined by statute to require proof of the
actual infliction of some tangible harm on a victim.” Id.
at 972. The domestic battery statute did not require
No. 07-2215 5
bodily harm, and the court concluded that the victim’s
protected status alone did not implicate moral turpitude.
Id. at 973. Accord Galeana-Mendoza v. Gonzales, 465 F.3d
1054, 1059-60 (9th Cir. 2006). Garcia-Meza’s case is anal-
ogous to Sanudo: while the victim is a member of a
specially protected class (peace officers), the statute of
conviction does not require any bodily harm, and special
status alone may not be enough. Cf. In re Logan, 17 I. & N.
Dec. 367, 368 (BIA 1980) (crime of “interference” with
police officer is crime of moral turpitude because it in-
volved a deadly weapon).
We have been discussing BIA decisions, but it is an open
question in this circuit whether to accord Chevron-style
deference to the Board’s conclusion that violation of a
particular state statute amounts to a crime of moral
turpitude. Mei, 393 F.3d at 739-40. Even if such deference
were appropriate, the BIA has not decided the issue in
this case, because it has not construed whether a con-
viction for battering a peace officer without causing
bodily harm amounts to a crime of moral turpitude. We
expect that in addressing this issue on remand, the
Board will consult the decisions that have considered
this subject in other contexts and concluded that an
assault or battery on a police officer without bodily harm
or other violence, or the intent to cause harm or use
violence (also absent here), should not be included among
crimes of moral turpitude. See Partyka v. U.S. Attorney
General, 417 F.3d 408 (3d Cir. 2005); U.S. ex rel. Zaffarano
v. Corsi, 63 F.2d 757 (2d Cir. 1933); Zaranska v. Dep’t of
Homeland Security, 400 F. Supp. 2d 500 (E.D.N.Y. 2005);
Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D.
Mass. 1926). This is not necessarily to say that these
decisions preclude the Board from reaching a different
decision, but a rational (and wise) adjudicator will take
account of the conclusions that others have reached, and
the reasons behind those conclusions.
6 No. 07-2215
Illinois follows the common law rule that any contact,
however slight, may constitute a battery. See Acevedo v.
Canterbury, 457 F.3d 721, 725 (7th Cir. 2006). At oral
argument, we posed the hypothetical that in Illinois, an
individual angry at being given a parking ticket might
crumple up the ticket and throw it on the ground and face
charges of aggravated battery if the ticket hit the issuing
officer’s shoe. We would be surprised if the BIA concluded
that such behavior is “inherently base, vile, or depraved,”
or that it would “shock the public’s conscience.” In the
language of this court’s decision in Mei, the magnitude
of the loss it causes is small (there is no injury, although
the officer might have hurt feelings), and it does not
arouse great public indignation (everybody hates parking
tickets). We also asked the parties for a citation of any
decision in which battery or assault of a police officer
without violence or bodily harm was found to be a crime
of moral turpitude. The government pointed to Mei, in
which we found that aggravated (meaning high-speed)
fleeing from an officer is such a crime. But that case did
not involve an assault or battery statute, and regard-
less, the difference between a 100+ mile-per-hour car
chase and a little finger grabbing seems obvious enough.
At the end of the day, it is the Board’s prerogative to
decide whether Garcia-Meza committed a crime of moral
turpitude. For the reasons we have explained, its deci-
sion that his offense is such a crime is based on a misap-
prehension of Illinois law and must be vacated. We
therefore GRANT the petition for review. Since we are
remanding for further proceedings, we do not today
reach Garcia-Meza’s argument that his criminal defense
counsel rendered ineffective assistance by failing to
advise him of the immigration consequences of pleading
guilty to battery.
No. 07-2215 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-5-08