United States Court of Appeals
For the First Circuit
No. 07-1655
FELIPE RAMIREZ,
Petitioner,
v.
MICHAEL MUKASEY, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.
Matt Cameron for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Mark C. Walters, Assistant Director, and W. Manning Evans,
Attorney, Office of Immigration Litigation, Civil Division, U. S.
Department of Justice, for respondent.
March 14, 2008
*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
JOHN R. GIBSON, Senior Circuit Judge. Felipe Ramirez,
a native and citizen of El Salvador, petitions for review of the
Board of Immigration Appeals' order of removal. The BIA found that
Ramirez's 1999 conviction for indecent assault and battery on a
person fourteen years or older, Mass. Gen. Laws ch. 265, § 13H, was
an aggravated felony, 8 U.S.C. § 1101(a)(43)(F), which rendered
Ramirez removable and ineligible for any form of relief from
removal. Ramirez contends that the crime for which he was
convicted includes battery by merely offensive--not harmful--
touching, and therefore should not be classified as a crime of
violence under 18 U.S.C. § 16, or, it follows, as an aggravated
felony under 8 U.S.C. § 1101(a)(43)(F). Although this precise
question has not been decided by this Circuit, earlier cases
foreshadowing the question persuade us to reject Ramirez's
argument. We deny the petition for review.
Ramirez was a lawful permanent resident on February 4,
1999, when he pleaded guilty to indecent assault and battery on a
person fourteen years or older under Mass. Gen. Laws ch. 265, §
13H, and received a sentence of two years, which was suspended. On
September 27, 2000, the Immigration and Naturalization Service
charged him with removability on the ground that he had been
convicted of an aggravated felony. The charging papers alleged
that his crime was an aggravated felony because it was a crime of
violence, as defined in 18 U.S.C. § 16, for which he had been
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sentenced to a term of imprisonment of at least one year. An
Immigration Judge ordered Ramirez removed to El Salvador.
Ramirez appealed to the BIA, which affirmed in a reasoned
opinion on March 27, 2007. Ramirez argued that the crime for which
he was convicted, Mass. Gen. Laws ch. 265, § 13H, was not
categorically a "crime of violence" within the meaning of 18 U.S.C.
§ 16 because assault and battery can be of two types--harmful
touching or merely offensive touching. See United States v.
Harris, 964 F.2d 1234, 1236 (1st Cir. 1992), overruled on other
grounds, Shepard v. United States, 125 S. Ct. 1254, 1258 (2005).
Ramirez contended that the merely offensive type of touching would
not qualify as a crime of violence. The BIA rejected that
argument, reasoning that the Massachusetts crime of indecent
assault and battery on a person fourteen or older by its nature
presented a substantial risk that the perpetrator would use force
to overcome the victim's lack of consent. Accordingly, the BIA
affirmed.
On petition for review, Ramirez contends that the BIA
committed a legal error in holding that Mass. Gen. Laws ch. 265, §
13H by its nature involves a substantial risk of the use of
physical force against the victim. The question of whether a state
crime is an aggravated felony is a question of law that we review
de novo. Conteh v. Gonzales, 461 F.3d 45, 52 (1st Cir. 2006),
cert. denied, 127 S. Ct. 3003 (2007).
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Deciding which specific convictions are covered by 8
U.S.C. § 1227(a)(2)(A)(iii) requires a look at a chain of federal
definitional statutes. Section 1227(a)(2)(A)(iii) itself provides,
"Any alien who is convicted of an aggravated felony at any time
after admission is deportable." (Emphasis added.) To find out
what an "aggravated felony" is, we must turn to 8 U.S.C. §
1101(a)(43), which contains a long list of crimes and types of
crimes that are aggravated felonies. Only one item in that list
concerns us here: "(F) 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]1 at least one year."
(Emphasis added.) The search continues to 18 U.S.C. § 16, which
defines "crime of violence" in two clauses:
(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.
(Emphasis added.) The BIA relied on subsection (b) only, and so it
focused on the risk of the use of physical force, rather than
whether the crime required actual, attempted, or threatened use of
1
The omission of the verb from the statute makes it unclear
whether the statute refers to the sentence actually imposed or the
authorized sentence. The Third Circuit has interpreted the statute
to refer to the sentence actually imposed. Bovkun v. Ashcroft, 283
F.3d 166, 170 (3d Cir. 2002) (Alito, J.). In this case, the
sentence imposed exceeds one year.
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such force.
Next, we must decide whether Ramirez's crime of
conviction, Mass. Gen. Laws ch. 265, § 13H, falls within the
category of crimes described in subsection 16(b), i.e., a felony
that by its nature involves a substantial risk of the use of
physical force. Ramirez does not dispute that his conviction was
a felony. Section 13H does not define "indecent assault and
battery on a person who has attained age fourteen," but only states
that whoever commits that offense shall be punished. The
definition of indecent assault and battery is supplied by judicial
construction. The elements of indecent assault and battery are
"intentional, unprivileged, and indecent touching of the victim."
Commonwealth v. Oliveira, 760 N.E.2d 308, 310 n.4 (Mass. App. Ct.
2002); Commonwealth v. Lavigne, 676 N.E.2d 1170, 1172 (Mass. App.
Ct. 1997). Lack of consent is also an element of the crime of
indecent assault and battery on a person aged fourteen or older.
Maghsoudi v. INS, 181 F.3d 8, 15 (1st Cir. 1999); Commonwealth v.
Burke, 457 N.E.2d 622, 625 n.4 (Mass. 1983), abrogated in part by
1986 Mass. Acts ch. 187.
In Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000), the
Second Circuit considered the very question of whether the
Massachusetts crime of indecent assault and battery on a person who
has attained the age of fourteen is a "crime of violence" under 18
U.S.C. § 16(b). The Second Circuit reviewed the elements of § 13H,
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in particular the elements of indecency and lack of consent by the
victim to the touching. Id. at 176-77. The court in Sutherland
concluded, "Like the BIA, we are persuaded that any violation of
Mass. Gen. Laws ch. 265, § 13H, by its nature, presents a
substantial risk that force may be used in order to overcome the
victim's lack of consent and accomplish the indecent touching."
Id. at 176. The Second Circuit held that a conviction under § 13H
was a "crime of violence" that rendered an alien removable. Id. at
177; accord United States v. Lepore, 304 F. Supp.2d 183, 185-89 (D.
Mass. 2004); Sango-Dema v. Dist. Director, INS, 122 F. Supp.2d 213,
218-19 (D. Mass. 2000).
In United States v. Leahy, 473 F.3d 401 (1st Cir.), cert.
denied, 128 S. Ct. 374 (2007), this Court considered the similar
question of whether a violation of § 13H was a "violent felony"
within the meaning of the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B)(ii). Instead of a substantial risk of use of physical
force, as is required by § 16(b), the Armed Career Criminal Act
requires that a felony "involve conduct that presents a serious
potential risk of physical injury to another." Id. (Emphasis
added.) In Leahy, we followed the reasoning of Sutherland to
conclude that in violations of § 13H, the need to overcome the
victim's lack of consent would lead to a substantial risk of the
use of physical force, as Sutherland held. From there, we further
deduced that such use of physical force created a substantial risk
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of physical injury. 473 F.3d at 411-12. We therefore held that a
conviction under § 13H was for a "violent felony." Id.; see also
United States v. Cadieux, 500 F.3d 37, 45-47 (1st Cir. 2007)
(relying on Leahy and acknowledging its reliance on Sutherland;
holding that conviction of Massachusetts crime of indecent assault
and battery of a person under fourteen is for a "violent felony"),
cert. denied, 2008 WL 423722 (Feb. 19, 2008); United States v.
Holloway, 499 F.3d 114, 118 (1st Cir. 2007) ("violent felony" and
"crime of violence" under U.S.S.G. § 4B1.1 are so similar that
decisions interpreting one of the terms are relevant in construing
the other).
Because the reasoning of Leahy includes the conclusion
that Sutherland was correctly decided, we could not reverse this
case without contradicting Leahy. Moreover, we see no reason to
disagree with Sutherland.
Therefore, in accordance with our reasoning in Leahy, 473
F.3d at 412, we DENY Ramirez's petition for review.
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