F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 29, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
G ILM A R N ILTO N SER VA -
LOZANO,
Petitioner, No. 05-9607
v. (B.I.A. No. A73 122 651)
ALBERTO R. GONZALES, Attorney
General,
Respondent.
OR D ER AND JUDGM ENT *
Before K ELLY, M cK AY, and LUCERO, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f). The case is therefore ordered
submitted without oral argument.
Petitioner, a Peruvian native, was granted asylum in the United States in
June 1995 and subsequently granted law ful permanent residency status in
February 1996. However, following his plea of guilty to battery with intent to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
comm it a serious felony in Idaho state court in October 2004— a crime for which
Petitioner received a three-year prison sentence, largely suspended— the
Department of Homeland Security initiated removal proceedings. An immigration
judge found Petitioner’s offense constituted an “aggravated felony” under the
Immigration and Nationality Act (“INA”) and that he therefore was removable
under INA § 237 (a)(2)(A)(iii). See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien
who is convicted of an aggravated felony at any time after admission is
deportable.”). Petitioner’s appeal to the Board of Immigration Appeals was
dismissed, 1 and Petitioner now seeks review before this court.
Petitioner challenges both his state court conviction and the immigration
judge’s conclusion that his conviction constituted an aggravated felony. To the
extent that Petitioner asserts that he inadvertently pleaded guilty because he was
led to believe it would make prison time less likely, such claims “are beyond the
scope of these proceedings.” Vargas v. Dep’t of Homeland Sec., 451 F.3d 1105,
1107 (10th Cir. 2006); Trench v. I.N.S., 783 F.2d 181, 183 (10th Cir. 1986)
(“[P]etitioner cannot collaterally attack the legitimacy of his state criminal
convictions in the deportation proceedings.”).
W e can, however, review Petitioner’s assertion that the offense of battery
1
Because the Board of Immigration Appeals affirmed without opinion, the
immigration judge’s decision is the final agency decision. 8 C.F.R. §
1003.1(e)(4)(ii).
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with intent to commit a serious felony is not an aggravated felony. Respondent
contends that this court lacks jurisdiction over this appeal under 8 U.S.C. §
1252(a)(2)(C). 2 This argument ignores the addition of subparagraph (D) by the
REAL ID Act of 2005, which “overrides subparagraph (C) so that we can review
‘constitutional claims or questions of law’ raised in a petition for review of a
removal order, even in an aggravated-felony case.” Vargas, 451 F.3d at 1107
(quoting 8 U.S.C. § 1252(a)(2)(D)). 3 Accordingly, we have jurisdiction to review
this limited challenge.
The definition of “aggravated felony” under the INA includes “a crime of
violence (as defined in section 16 of Title 18, but not including a purely political
offense) for w hich the term of imprisonment [is] at least one year.” 8 U.S.C. §
2
Section 1252(a)(2)(C) states:
Notwithstanding any other provision of law . . ., and except as
provided in subparagraph (D), no court shall have jurisdiction to
review any final order of removal against an alien who is removable
by reason of having committed a criminal offense covered in
section 1182(a)(2) or 1227(a)(2)(A )(iii), (B), (C), or (D ) of this
title, or any offense covered by section 1227(a)(2)(A )(ii) of this
title for which both predicate offenses are, without regard to their
date of commission, otherw ise covered by section 1227(a)(2)(A)(I)
of this title.
3
Section 1252(a)(2)(D) reads:
Nothing in subparagraph (B) or (C), or in any other provision of
this chapter (other than this section) which limits or eliminates
judicial review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals in accordance with
this section.
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1101(a)(43)(F). “Crime of violence” is in turn defined as:
(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.
18 U.S.C. § 16. In determining whether battery with intent to commit a serious
felony is a crime of violence, we employ the “categorical approach”
recommended by Taylor v. United States, 495 U.S. 575 (1990), and extended to
convictions resulting from pleas in Shepard v. United States, 544 U.S. 13, 26
(2005). Under this approach, our decision is guided by “the generic elements of
the offense and not [by] the particular facts of the crime.” United States v.
M artinez-Candejas, 347 F.3d 853, 858 (10th Cir. 2003).
Idaho Code § 18-911 defines battery with the intent to commit a serious
felony as “[a]ny battery committed with the intent to commit murder, rape, the
infamous crime against nature, mayhem, robbery or lewd and lascivious conduct
with a minor child.” Battery, in turn, is defined under Idaho Code § 18-903 as
any:
(a) W illful and unlawful use of force or violence upon the person of
another; or
(b) Actual, intentional and unlawful touching or striking of another
person against the will of the other; or
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(c) Unlawfully and intentionally causing bodily harm to an
individual.
Given these definitions, it is apparent that battery with intent to commit a serious
felony, punishable as a felony offense under Idaho law, qualifies as a “crime of
violence” and therefore as an “aggravated felony” under the INA.
Accordingly, the decision of the immigration judge is AFFIRM ED.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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