NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 20-3404 ______________
LISBELL MARIONE PATINO MADGE, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ______________
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A043-660-315) Immigration Judge: Matthew Watters ______________
Submitted Under Third Circuit L.A.R. 34.1(a) September 23, 2021 ______________
Before: JORDAN, PORTER, and RENDELL, Circuit Judges.
(Filed: September 28, 2021) ______________
OPINION ______________
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge.
Lisbell Patino-Madge is a native and citizen of Peru and a lawful permanent
resident of the United States. In 2012, she was convicted of retail theft and conspiracy
under Pennsylvania law, for which she received twelve months’ probation. In 2017,
Patino-Madge was convicted of simple assault under Pennsylvania law, for which she
received four to twelve months’ imprisonment. Based on the assault conviction, the
Department of Homeland Security charged her with removability for having been
convicted of (1) two or more crimes involving moral turpitude and (2) an aggravated
felony. The Immigration Judge (“IJ”) sustained the charges, and Patino-Madge appealed
the decision to the Board of Immigration Appeals (“BIA”). The BIA dismissed the
appeal, ruling that Patino-Madge was properly found removable for having been
convicted of an aggravated felony. Patino-Madge timely petitioned this Court for review
of the BIA’s decision. We will deny the petition.
I
We have jurisdiction over this petition for review under 8 U.S.C. § 1252(a). The IJ
held that Patino-Madge’s assault conviction is both an aggravated felony and a crime
involving moral turpitude, but the BIA affirmed only on the basis that the assault
conviction is an aggravated felony. “Where the BIA affirms and partially reiterates the
IJ’s discussions and determinations, we look to both decisions. If the Board relies only
on some of the grounds given for denying relief, we review only these grounds.” Myrie v.
Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017) (citations omitted). Our review is thus
limited to whether Patino-Madge’s assault conviction is an aggravated felony, which is a
2 legal question that we review de novo. See Restrepo v. Att’y Gen., 617 F.3d 787, 790 (3d
Cir. 2010). We write for the parties, who are familiar with the record.
II
“Any alien who is convicted of an aggravated felony at any time after admission is
deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). Congress defined “aggravated felony” with a
list of offenses. See id. § 1101(a)(43). The list includes “crime[s] of violence” for which
the term of imprisonment is at least one year. Id. § 1101(a)(43)(F). A “crime of violence”
is in turn defined 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). Patino-Madge was sentenced to four to twelve months’ imprisonment for her
simple-assault conviction under 18 Pa. Cons. Stat. § 2701(a)(3). See Bovkun v. Ashcroft,
283 F.3d 166, 170–71 (3d Cir. 2002) (noting that we must “determine what is the term of
imprisonment actually imposed” and concluding that “a sentence with both a minimum
and a maximum term is treated comparably with a functionally equivalent sentence with
only a maximum term”). To resolve this case, then, we need only decide whether simple
assault under section 2701(a)(3) “has as an element the . . . threatened use of physical
force against the person or property of another.” 18 U.S.C. § 16(a).
We have already answered that question. In Singh v. Gonzales, 432 F.3d 533 (3d
Cir. 2006), we held that “simple assault as defined by 18 Pa. Cons. Stat. Ann.
§ 2701(a)(3) requires specific intent to use, threaten to use, or attempt to use force
against an individual, and is therefore a crime of violence within 18 U.S.C. § 16(a).”
Singh, 432 F.3d at 540. We thus held that the alien was “removable under 8 U.S.C.
3 § 1227(a)(2)(A)(iii) as an aggravated felon” and denied the petition for review. Id. at
542. Patino-Madge argues that Johnson v. United States, 559 U.S. 133 (2010), abrogated
our decision, so we “should now reverse [our] prior holding from Singh.” Pet’r Br. 11.
We disagree. Singh is still good law, and nothing in Johnson is to the contrary.
In Johnson, the Supreme Court clarified the meaning of “physical force” in 18
U.S.C. § 924. The Court reasoned that, “in the context of a statutory definition of ‘violent
felony,’ the phrase ‘physical force’ means violent force.” Johnson, 559 U.S. at 140
(quoting 18 U.S.C. § 924(e)(2)(B)(i)). Johnson did not concern § 16(a), the provision at
issue here. But the Court noted that § 924 and § 16 contain “very similar” provisions, and
it looked to cases interpreting § 16 to guide its interpretation of § 924. Id. Specifically,
the Court applied Leocal v. Ashcroft, 543 U.S. 1 (2004), which employed similar
contextual reasoning: in interpreting “physical force” in § 16(a), “we cannot forget that
we ultimately are determining the meaning of the term ‘crime of violence.’” Id. at 11
(quoting 18 U.S.C. § 16(a)); see also Johnson, 559 U.S. at 140. In both cases, the Court
reasoned that the meaning of “physical force” was informed by the context of what it
defined: a violent crime. Leocal, 543 U.S. at 11; Johnson, 559 U.S. at 140. The defendant
in Johnson had been convicted of battery in Florida. Johnson, 559 U.S. at 136. The
physical element of battery under Florida law could be satisfied by any intentional
contact, however minimal. Id. at 138. Because battery under Florida law did not require
violent force, it fell short of the federal statutory definition of a “violent felony.” 18
U.S.C. § 924(e)(2)(B); see Johnson, 559 U.S. at 145.
4 Singh and Johnson are compatible. In Pennsylvania, a person is guilty of simple
assault if she “attempts by physical menace to put another in fear of imminent serious
bodily injury.” 18 Pa. Cons. Stat. § 2701(a)(3). In Singh, we interpreted “physical
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 20-3404 ______________
LISBELL MARIONE PATINO MADGE, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ______________
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A043-660-315) Immigration Judge: Matthew Watters ______________
Submitted Under Third Circuit L.A.R. 34.1(a) September 23, 2021 ______________
Before: JORDAN, PORTER, and RENDELL, Circuit Judges.
(Filed: September 28, 2021) ______________
OPINION ______________
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge.
Lisbell Patino-Madge is a native and citizen of Peru and a lawful permanent
resident of the United States. In 2012, she was convicted of retail theft and conspiracy
under Pennsylvania law, for which she received twelve months’ probation. In 2017,
Patino-Madge was convicted of simple assault under Pennsylvania law, for which she
received four to twelve months’ imprisonment. Based on the assault conviction, the
Department of Homeland Security charged her with removability for having been
convicted of (1) two or more crimes involving moral turpitude and (2) an aggravated
felony. The Immigration Judge (“IJ”) sustained the charges, and Patino-Madge appealed
the decision to the Board of Immigration Appeals (“BIA”). The BIA dismissed the
appeal, ruling that Patino-Madge was properly found removable for having been
convicted of an aggravated felony. Patino-Madge timely petitioned this Court for review
of the BIA’s decision. We will deny the petition.
I
We have jurisdiction over this petition for review under 8 U.S.C. § 1252(a). The IJ
held that Patino-Madge’s assault conviction is both an aggravated felony and a crime
involving moral turpitude, but the BIA affirmed only on the basis that the assault
conviction is an aggravated felony. “Where the BIA affirms and partially reiterates the
IJ’s discussions and determinations, we look to both decisions. If the Board relies only
on some of the grounds given for denying relief, we review only these grounds.” Myrie v.
Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017) (citations omitted). Our review is thus
limited to whether Patino-Madge’s assault conviction is an aggravated felony, which is a
2 legal question that we review de novo. See Restrepo v. Att’y Gen., 617 F.3d 787, 790 (3d
Cir. 2010). We write for the parties, who are familiar with the record.
II
“Any alien who is convicted of an aggravated felony at any time after admission is
deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). Congress defined “aggravated felony” with a
list of offenses. See id. § 1101(a)(43). The list includes “crime[s] of violence” for which
the term of imprisonment is at least one year. Id. § 1101(a)(43)(F). A “crime of violence”
is in turn defined 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). Patino-Madge was sentenced to four to twelve months’ imprisonment for her
simple-assault conviction under 18 Pa. Cons. Stat. § 2701(a)(3). See Bovkun v. Ashcroft,
283 F.3d 166, 170–71 (3d Cir. 2002) (noting that we must “determine what is the term of
imprisonment actually imposed” and concluding that “a sentence with both a minimum
and a maximum term is treated comparably with a functionally equivalent sentence with
only a maximum term”). To resolve this case, then, we need only decide whether simple
assault under section 2701(a)(3) “has as an element the . . . threatened use of physical
force against the person or property of another.” 18 U.S.C. § 16(a).
We have already answered that question. In Singh v. Gonzales, 432 F.3d 533 (3d
Cir. 2006), we held that “simple assault as defined by 18 Pa. Cons. Stat. Ann.
§ 2701(a)(3) requires specific intent to use, threaten to use, or attempt to use force
against an individual, and is therefore a crime of violence within 18 U.S.C. § 16(a).”
Singh, 432 F.3d at 540. We thus held that the alien was “removable under 8 U.S.C.
3 § 1227(a)(2)(A)(iii) as an aggravated felon” and denied the petition for review. Id. at
542. Patino-Madge argues that Johnson v. United States, 559 U.S. 133 (2010), abrogated
our decision, so we “should now reverse [our] prior holding from Singh.” Pet’r Br. 11.
We disagree. Singh is still good law, and nothing in Johnson is to the contrary.
In Johnson, the Supreme Court clarified the meaning of “physical force” in 18
U.S.C. § 924. The Court reasoned that, “in the context of a statutory definition of ‘violent
felony,’ the phrase ‘physical force’ means violent force.” Johnson, 559 U.S. at 140
(quoting 18 U.S.C. § 924(e)(2)(B)(i)). Johnson did not concern § 16(a), the provision at
issue here. But the Court noted that § 924 and § 16 contain “very similar” provisions, and
it looked to cases interpreting § 16 to guide its interpretation of § 924. Id. Specifically,
the Court applied Leocal v. Ashcroft, 543 U.S. 1 (2004), which employed similar
contextual reasoning: in interpreting “physical force” in § 16(a), “we cannot forget that
we ultimately are determining the meaning of the term ‘crime of violence.’” Id. at 11
(quoting 18 U.S.C. § 16(a)); see also Johnson, 559 U.S. at 140. In both cases, the Court
reasoned that the meaning of “physical force” was informed by the context of what it
defined: a violent crime. Leocal, 543 U.S. at 11; Johnson, 559 U.S. at 140. The defendant
in Johnson had been convicted of battery in Florida. Johnson, 559 U.S. at 136. The
physical element of battery under Florida law could be satisfied by any intentional
contact, however minimal. Id. at 138. Because battery under Florida law did not require
violent force, it fell short of the federal statutory definition of a “violent felony.” 18
U.S.C. § 924(e)(2)(B); see Johnson, 559 U.S. at 145.
4 Singh and Johnson are compatible. In Pennsylvania, a person is guilty of simple
assault if she “attempts by physical menace to put another in fear of imminent serious
bodily injury.” 18 Pa. Cons. Stat. § 2701(a)(3). In Singh, we interpreted “physical
menace” as requiring “some physical act by the perpetrator intended to cause ‘fear of
imminent serious bodily injury’ in the victim.” Singh, 432 F.3d at 539 (quoting 18 Pa.
Cons. Stat. § 2701(a)(3)). Violent force is “force capable of causing physical pain or
injury to another person.” Johnson, 559 U.S. at 140. A threat of “imminent serious
bodily injury” is, therefore, a threat of violent physical force. 18 Pa. Cons. Stat.
§ 2701(a)(3); see Singh, 432 F.3d at 540. Simple assault under § 2701(a)(3) requires a
threat of violent force, so Singh’s analysis is consistent with Johnson.
Patino-Madge argues that Johnson’s violent-force requirement applies to the
physical-act element of simple assault. She suggests that assault could be a crime of
violence only if it required a violent physical act threatening violent physical force. But
neither § 16(a) nor Johnson imposes such a requirement. Rather, a physical act that
threatens violent force is itself a “threatened use of [violent] physical force.” 18 U.S.C.
§ 16(a); see Johnson, 559 U.S. at 140. As we said in Singh, it is “meaningless” to
distinguish between “physical acts committed to threaten another with corporeal harm”
and the concept of the “‘threatened use of physical force’ employed by § 16(a).” Singh,
432 F.3d at 539–40.
Simple assault under Pennsylvania law is thus a crime of violence, as we have
already held. Id. at 540. No subsequent case or statute requires us to overturn Singh.
Patino-Madge’s conviction under 18 Pa. Cons. Stat. § 2701(a)(3) is thus a conviction for
5 an aggravated felony and a removable offense. See 8 U.S.C. § 1101(a)(43)(F); 8 U.S.C.
§ 1227(a)(2)(A)(iii).
* * *
We will deny the petition for review.