Jose Ernesto Flores v. John Ashcroft, Attorney General of the United States

350 F.3d 666, 2003 U.S. App. LEXIS 24051, 2003 WL 22805692
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 26, 2003
Docket02-3160
StatusPublished
Cited by141 cases

This text of 350 F.3d 666 (Jose Ernesto Flores v. John Ashcroft, Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jose Ernesto Flores v. John Ashcroft, Attorney General of the United States, 350 F.3d 666, 2003 U.S. App. LEXIS 24051, 2003 WL 22805692 (7th Cir. 2003).

Opinions

EASTERBROOK, Circuit Judge.

Jose Ernesto Flores was ordered removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E), because he committed a “crime of domestic violence” — which means any offense that is a “crime of violence” under 18 U.S.C. § 16 and has a spouse or other domestic partner as a victim. The crime need not be defined in state law as “domestic”; all aspects of the definition are federal. But classification of a state crime under a federal definition can be tricky, and Flores denies that his offense qualifies. We have jurisdiction to determine whether Flores has committed a removable offense, see Gill v. Ashcroft, 335 F.3d 574 (7th Cir.2003); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.1997), but if he has done so then we lack jurisdiction to review any other issues. See 8 U.S.C. § 1252(a)(2)(C); Calcano-Martinez v. [617]*617INS, 533 U.S. 348, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001).

Flores pleaded guilty in Indiana to battery, a misdemeanor, which in that state is any touching in a rude, insolent, or angry manner. Ind.Code § 35-42-2-1. He received a one-year sentence because bodily injury ensued. Flores admitted at a removal hearing that the victim was his wife. Although he now contends that he was not given sufficient time before that admission to retain counsel, a removal proceeding is not a criminal prosecution, and the Constitution does not of its own force create a right to legal assistance at every stage. See Stroe v. INS, 256 F.3d 498 (7th Cir.2001). The immigration judge’s failure to grant Flores additional continuances before asking questions about the charges may have violated a regulation, but given § 1252(a)(2)(C) we lack authority to vindicate regulation-based arguments by criminal aliens. (Violation of a federal regulation differs from violation of the Constitution. See United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979).) By the tune the hearing proper arrived, Flores was represented by counsel, as he has been ever since. Lack of legal assistance earlier could matter only to the extent it affected the determination that he committed a crime of domestic battery — and that would be possible only if, with the assistance of counsel, Flores might have refused to make one of the concessions at the earlier, uncounselled proceedings: that (a) he is the “Jose Ernesto Flores” who pleaded guilty to the charge, and (b) the victim was his wife. Yet Flores has never (with or without counsel) denied either of these things. The issue at hand is entirely legal: how should the offense created by Ind.Code § 35-42-2-1 be classified for purposes of § 237(a)(2)(E)? It would be pointless to debate whether, some years ago, the immigration judge should have afforded Flores more time to hire a lawyer. We move to the main event.

Section 16 says that “The term ‘crime of violence’ means — (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.” Because the offense of which Flores was convicted is a misdemeanor, only § 16(a) matters. It is limited to crimes that have as an element the use of “physical force against the person ... of another”. Indiana law provides: “(a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is: (1) a Class A misdemeanor if: (A) it results in bodily injury to any other person”. Ind. Code § 35-42-2-1. Flores pleaded guilty to this “Class A” version of the misdemeanor offense. The parties treat bodily injury as an “element” because it increases the maximum punishment. There are two other elements: an intentional touching, plus a rude, insolent, or angry manner. Rudeness has nothing to do with force (though it increases the offense given by the touching). But both touching and injury have a logical relation to the “use of physical force” under § 16(a).

Flores observes that Indiana does not require much of either touching or injury. Any contact counts as a “touch” — and this includes indirect as well as direct contact, so a snowball, spitball, or paper airplane qualifies if it hits the target. Indiana follows the common-law rule under which any contact, however slight, may constitute battery. Hamilton v. State, 237 [618]*618Ind. 298, 145 N.E.2d 391 (1957); Seal v. State, 246 Ind. 353, 205 N.E.2d 823 (1965). Touching anything attached to someone else, such as the person’s glasses, is treated the same as touching the body. Impson v. State, 721 N.E.2d 1275 (Ind.App. 2000). As for injury: a bruise suffices, as does any physical pain even without trauma. Lewis v. State, 438 N.E.2d 289 (Ind. 1982); Tucker v. State, 725 N.E.2d 894 (Ind.App.2000). Indiana’s courts reached this conclusion because “serious” bodily injury makes the offense a Class C felony. See Ind.Code § 35-42-2-1(a)(3). It follows, Indiana’s judiciary concluded, that any physical hurt satisfies § 35-42-2-1(a)(1)(A). So if the paper airplane inflicts a paper cut, the snowball causes a yelp of pain, or a squeeze of the arm causes a bruise, the aggressor has committed a Class A misdemeanor (provided that the act was rude, angry, or insolent). It is hard to describe any of this as “violence.”

Now Flores did not tickle his wife with a feather during a domestic quarrel, causing her to stumble and bruise her arm. That would not have led to a prosecution, let alone to a year’s imprisonment. The police report shows that Flores attacked and beat his wife even though prior violence had led to an order barring him from having any contact with her. The contempt of court reflected in disobedience to this order, plus the ensuing injury, likely explains the prosecution and sentence. The immigration officials ask us to examine what Flores actually did, not just the elements of the crime to which he pleaded guilty.

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Bluebook (online)
350 F.3d 666, 2003 U.S. App. LEXIS 24051, 2003 WL 22805692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jose-ernesto-flores-v-john-ashcroft-attorney-general-of-the-united-states-ca7-2003.