Lopes v. Keisler

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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