[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 18, 2008
No. 07-12420 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
BIA No. A70-952-769
MIGUEL ANGEL HERNANDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 18, 2008)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Miguel Angel Hernandez petitions for review of a final order of the Board of
Immigration Appeals (“BIA”), which affirmed the decision of an Immigration
Judge (“IJ”) finding him removable as an aggravated felon on the basis of his
simple battery conviction in Georgia. After review, we deny the petition.
I. BACKGROUND
Hernandez, a native and citizen of Mexico, entered the United States as a
lawful permanent resident in September 2004. In 2005, in the State Court of
Gwinnett County, Georgia, Hernandez was convicted of one count of simple
battery, in violation of Ga. Code Ann. § 16-5-23(a)(2). Section 16-5-23(a)(2)
provides that “[a] person commits the offense of simple battery when he or she . . .
[i]ntentionally causes physical harm to another.” Ga. Code Ann. § 16-5-23(a)(2).
According to his Georgia indictment and conviction, Hernandez was convicted of
having unlawfully and intentionally caused physical harm to Minerva Garcia Islas,
in violation of Ga. Code Ann. § 16-5-23(a)(2).
The state court sentenced Hernandez to twelve months’ imprisonment. The
state court credited Hernandez with six days of time served and ordered Hernandez
to serve the remainder of his twelve-month sentence on probation, subject to
various conditions.1 In December 2005, due to a violation of his probation
1
Among the conditions of Hernandez’s probation was a requirement that he have “no
violent contact with” Ms. Islas.
2
conditions, the state court revoked Hernandez’s probation. In its probation
revocation order, the state court ordered Hernandez to serve twenty-two days in the
Gwinnett County jail and continued the remainder of Hernandez’s probation with
the further requirement that Hernandez enroll in anger management.
In October 2006, the Department of Homeland Security (“DHS”) issued
Hernandez a Notice to Appear (“NTA”). The NTA charged Hernandez with, inter
alia, removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted
of an aggravated felony—a “crime of violence” for which the term of
imprisonment imposed was at least one year. See 8 U.S.C. §§ 1101(a)(43)(F),
1227(a)(2)(A)(iii); 18 U.S.C. § 16.
Before the IJ, Hernandez admitted that: (1) he was a native and citizen of
Mexico; (2) he was admitted to the United States as a lawful permanent resident in
September 2004; and (3) he was convicted of simple battery in Georgia in March
2005. Hernandez nevertheless denied removability on two grounds. First,
Hernandez argued that his simple battery conviction under Ga. Code Ann. § 16-5-
23(a)(2) did not meet the relevant definition of a “crime of violence” because his
conviction was not for “an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of another.” 18
U.S.C. § 16(a). Second, Hernandez argued that his term of imprisonment on his
conviction was not at least one year because the state court, in revoking his
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probation, changed his sentence from twelve months to twenty-two days.
The IJ rejected Hernandez’s arguments and ordered Hernandez removed to
Mexico. On appeal, the BIA rejected Hernandez’s arguments, determining that:
(1) his simple battery conviction under Ga. Code Ann. § 16-5-23(a)(2) constituted
a “crime of violence” under 18 U.S.C. § 16(a); and (2) he remained sentenced to
twelve months’ confinement for simple battery, “regardless of any additional
sentence due to the revocation of probation.”
Hernandez timely filed his petition for review in this Court.
II. STANDARD OF REVIEW
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). Here, because the BIA issued its own decision
and relied on the IJ’s findings, we will review both decisions. See id.
To the extent that the BIA’s or the IJ’s decisions were based on legal
determinations, our review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244,
1247-48 (11th Cir. 2001). We review the BIA’s and the IJ’s factual
determinations under the substantial evidence test. Adefemi v. Ashcroft, 386 F.3d
1022, 1026-27 (11th Cir. 2004) (en banc).
III. DISCUSSION
A. Jurisdiction
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As a preliminary matter, we must inquire into subject matter jurisdiction sua
sponte whenever it may be lacking. See Chacon-Botero v. U.S. Att’y Gen., 427
F.3d 954, 956 (11th Cir. 2005). The text of 8 U.S.C. § 1252(a)(2)(C) provides that
“[n]otwithstanding any other provision of law . . . 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 . . . 1227(a)(2)(A)(iii).”
8 U.S.C. § 1252(a)(2)(C).
However, the REAL ID Act of 2005 in turn provides that “[n]othing in [8
U.S.C. § 1252(a)(2)(C)] . . . shall be construed as precluding review of
constitutional claims or questions of law.” REAL ID Act of 2005, Pub. L. No.
109-13, 119 Stat. 231 (2005) (codified at 8 U.S.C. § 1252(a)(2)(D)). Moreover, in
Balogun v. United States Attorney General, 425 F.3d 1356, 1359-60 (11th Cir.
2005), this Court determined that the question of whether a conviction qualified as
an aggravated felony under a different immigration provision was a question of
law within our jurisdiction. Accordingly, we conclude that we have subject matter
jurisdiction to review Hernandez’s claims in his petition that his state conviction
was not an aggravated felony for purposes of 8 U.S.C. § 1227(a)(2)(A)(iii).
B. “Crime of violence”
As discussed, an alien who has been convicted of an aggravated felony is
removable. 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony” includes
5
a “crime of violence,” as defined by 18 U.S.C. § 16, for which the term of
imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F). As relevant to this
case, 18 U.S.C. § 16 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.” 18 U.S.C. § 16(a).2 In order to determine whether
Hernandez’s simple battery conviction qualifies as a “crime of violence” under 18
U.S.C. § 16(a), we must look to the “elements and the nature of the offense of
conviction, rather than to the particular facts relating to petitioner’s crime.” Leocal
v. Ashcroft, 543 U.S. 1, 7, 125 S. Ct. 377, 381 (2004).
Georgia’s simple battery statute in § 16-5-23(a) provides that “[a] person
commits the offense of simple battery when he or she either: (1) Intentionally
makes physical contact of an insulting or provoking nature with the person of
another; or (2) Intentionally causes physical harm to another.” Ga. Code Ann. §
16-5-23(a)(1)-(2). Georgia courts have interpreted this language to require actual
physical contact for a simple battery conviction under either prong of the statute.
See Hammonds v. State, 587 S.E.2d 161, 163 (Ga. Ct. App. 2003) (stating that §
16-5-23(a)(1) “contemplates a touching that does not result in injury, but is
nonetheless insulting or provoking in character,” while § 16-5-23(a)(2)
2
The government concedes that Hernandez’s simple battery conviction is not a “crime of
violence” under 18 U.S.C. § 16(b), which provides an alternate definition for the term.
6
“contemplates a touching that goes beyond insult to the infliction of pain or
physical injury”); McKinney v. State, 463 S.E.2d 136, 139 (Ga. Ct. App. 1995)
(“Physical contact is required for a simple battery but not for aggravated assault.”);
Lyman v. State, 374 S.E.2d 563, 565 (Ga. Ct. App. 1988) (stating that § 16-5-
23(a)(2) “concerns the intentional causation of physical harm, a touching which
goes beyond insult to the infliction of pain”); Anderson v. State, 317 S.E.2d 877,
878 (Ga. Ct. App. 1984) (stating that a simple battery conviction under § 16-5-23
“requires physical contact”); Tuggle v. State, 244 S.E.2d 131, 133 (Ga. Ct. App.
1978) (same).
While we have not addressed § 16-5-23(a)(2), this Court has held that a
conviction under § 16-5-23(a)(1) constitutes a “crime of violence” under 18 U.S.C.
§ 922(g). See United States v. Griffith, 455 F.3d 1339 (11th Cir. 2006), cert.
denied, __ U.S. __, 127 S. Ct. 2028 (2007). Section 922(g)(9) makes it unlawful
for any person who had been convicted of “a misdemeanor crime of domestic
violence” to possess a firearm or ammunition. 18 U.S.C. § 922(g)(9); Griffith, 455
F.3d at 1340-41. Although not an immigration case, Griffith is relevant here
because a “crime of domestic violence” for purposes of § 922(g)(9) is defined to
include an offense, inter alia, that “(ii) has, as an element, the use or attempted use
of physical force.” 18 U.S.C. § 921(a)(33)(A). This is essentially the same
definition of a “crime of violence” as in 18 U.S.C. § 16(a), the immigration statute
7
at issue here. In Griffith, this Court discussed whether physical contact necessarily
involves physical force and held that “[a] person cannot make physical
contact—particularly of an insulting or provoking nature—with another without
exerting some level of physical force.” Griffith, 455 F.3d at 1342. In so holding,
the Griffith Court expressly declined to insert the requirement of “violent” force
before the words “physical force” in the statutory definition of “crime of violence”
and concluded that the simple physical contact made illegal by § 16-5-23(a)(1)
satisfied the “use of physical force” definition of a “crime of violence” in
§ 921(a)(33)(A). Id.3
Here, Hernandez’s simple battery conviction required more than simple
physical contact with the victim; it required intentionally causing physical harm to
the victim through physical contact. See Hammonds, 587 S.E.2d at 163. Given
that Georgia courts have interpreted § 16-5-23(a)(2) as requiring actual physical
contact that inflicts pain or injury, and in light of Griffith, we conclude that
Hernandez’s conviction under § 16-5-23(a)(2) constitutes a “crime of violence.”
Our conclusion is bolstered by our decisions in United States v. Llanos-
Agostadero, 486 F.3d 1194 (11th Cir. 2007), and Hicks v. Moore, 422 F.3d 1246
3
In Griffith, this Court declined to follow Flores v. Ashcroft, 350 F.3d 666 (7th Cir.
2003), relied upon by Hernandez along with Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th
Cir. 2006), for the proposition that a statute must require “violent” force in order to qualify as a
“crime of violence” under 18 U.S.C. § 16(a). See Griffith, 455 F.3d at 1345.
8
(11th Cir. 2005). In Llanos-Agostadero, this Court considered whether it was
proper for a defendant to receive a 16-level enhancement under the federal
sentencing guidelines for having committed a “crime of violence” when the
defendant’s prior conviction was for the Florida crime of “aggravated battery on a
pregnant woman.” Llanos-Agostadero, 486 F.3d at 1196. Notably, in Llanos-
Agostadero, the sentencing enhancement defined the term “crime of violence” just
as it is defined in 18 U.S.C. § 16(a): an offense “that has as an element the use,
attempted use, or threatened use of physical force against the person of another.”
Id. (quoting U.S.S.G. § 2L1.2(b)(1) cmt. n.1(B)(iii)). Moreover, we stressed in
Llanos-Agostadero that the Florida crime of “simple battery” is an essential
element of the offense of “aggravated battery on a pregnant woman,” and that a
defendant commits “simple battery” under Florida law when he either “[1] actually
and intentionally touches or strikes another person against the will of another; or
. . . [2] intentionally causes bodily harm to another person.” Id. at 1197 (quoting
Fla. Stat. § 784.03(1)(a)). In other words, the second subpart of the Florida simple
battery statute is essentially identical to the second subpart of the Georgia simple
battery statute—the subpart under which Hernandez was convicted.
The Llanos-Agostadero Court, citing our earlier decision in United States v.
Glover, 431 F.3d 744 (11th Cir. 2005), concluded that:
the offense of aggravated battery on a pregnant woman under Florida
9
law has as an element that the defendant commit simple battery, and
there is no persuasive reason why simple battery on a law enforcement
officer is a “crime of violence,” as this court held in Glover, 431 F.3d
at 749, while simple battery on a pregnant woman (which constitutes
aggravated battery) is not.
Id. at 1198 (internal citation omitted). The Llanos-Agostadero Court did not
distinguish between the two ways in which one can commit simple battery in
Florida, thereby indicating that “intentionally caus[ing] bodily harm to
another”—language virtually identical to the Georgia statute at issue
here—constitutes a “crime of violence” in this circuit. Id. at 1197-98; see
also Glover, 431 F.3d at 749 (reciting both ways a defendant can commit simple
battery in Florida, including “[i]ntentionally caus[ing] bodily harm to another,” and
concluding that Florida battery on a law enforcement officer constitutes a “crime of
violence” under the federal sentencing guidelines).
Our Hicks decision is also noteworthy. In Hicks, this Court considered, inter
alia, whether a plaintiff’s constitutional rights were violated when she was strip
searched at a Georgia jail. The Court noted that the plaintiff was arrested and
charged with the Georgia crime of family violence battery, “the elements of which
are ‘intentionally caus[ing] substantial physical harm or visible bodily harm’ to a
‘past or present spouse.’” Hicks, 422 F.3d at 1252 (quoting Ga. Code Ann. § 16-5-
23.1) (alteration in original). The Court then held that the strip search of the
plaintiff “violated no constitutional right,” because the crime with which she was
10
charged “is obviously one of violence. We accept that a person’s being charged
with a crime of violence is sufficient to evoke reasonable suspicion that the person
may be concealing weapons or contraband.” Id. at 1252-53 (emphasis added).
While Hicks was not a § 16(a) immigration case, there is no meaningful distinction
between the relevant elements of Georgia simple battery and Georgia family
violence battery, and the Hicks Court unambiguously classified Georgia family
violence battery—intentionally causing substantial physical harm or visible bodily
harm—as an “obvious crime of violence.” Id. at 1252.
In light of Griffith, Llanos-Agostadero, Glover, and Hicks, we conclude that
Hernandez’s simple battery conviction under Ga. Code Ann. § 16-5-23(a)(2), for
“[i]ntentionally caus[ing] physical harm to another,” constitutes a “crime of
violence” under 18 U.S.C. § 16(a). The clear weight of precedent compels this
conclusion, and we reject Hernandez’s arguments to the contrary.4
C. Twelve months’ imprisonment
4
We recognize that Hernandez argues, inter alia, that he could be convicted of simple
battery under § 16-5-23(a)(2) if he put a banana peel in a victim’s path, and the banana peel
caused the victim to slip, fall, and sustain physical injury or harm. However, to date Georgia
courts have interpreted Georgia’s simple battery statute as requiring physical contact. See
Hammonds, 587 S.E.2d at 163; McKinney, 463 S.E.2d at 139; Lyman, 374 S.E.2d at 565;
Anderson, 317 S.E.2d at 878; Tuggle, 244 S.E.2d at 133. We accept the Georgia courts’
interpretation of their own battery statute and see no meaningful distinction between subpart
(a)(1) and (a)(2) of Georgia’s simple battery statute in deciding whether a conviction for simple
battery under that Georgia statute is a “crime of violence” under 18 U.S.C. § 16(a). If anything,
causing physical harm to a victim under § 16-5-23(a)(2) is even more clearly a “crime of
violence” than a simple physical touching of an insulting or provoking nature under § 16-5-
23(a)(1).
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Hernandez also contends that he was not convicted of an aggravated felony
because he was not sentenced to at least twelve months’ imprisonment on his
simple battery conviction. Although Hernandez acknowledges that he was initially
sentenced to twelve months’ confinement for the offense in question, he contends
that when his probation was revoked, he was “resentenced” and given an “entirely
new sentence” of twenty-two days in prison. The order revoking Hernandez’s
probation states otherwise.
The order revoking Hernandez’s probation indeed states that Hernandez’s
probation was revoked and that he was to serve twenty-two days in the Gwinnett
County jail. However, the order also provides that Hernandez’s probation was
“[c]ontinued, under supervision, subject to the further provision[s]” that Hernandez
be: (1) given credit for time served; (2) “released instanter”; (3) enrolled in anger
management; and (4) given a status check in sixty days. Probation Revocation
Order of Dec. 2, 2005 (emphasis added). Because the order revoking Hernandez’s
probation makes clear that Hernandez was not given a “new sentence” of less than
twelve months’ imprisonment, but that his probation was continued, we cannot say
that the BIA erred when it concluded that Hernandez was removable as an alien
convicted of a “crime of violence” for which the term of imprisonment imposed
was at least one year.
IV. CONCLUSION
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For the foregoing reasons, we deny Hernandez’s petition for review.
PETITION DENIED.
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