Hernandez v. U.S. Attorney General

[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).
11
 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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