LaGuerre, Gary v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4164
GARY LAGUERRE,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A40-131-638
____________
ARGUED JANUARY 29, 2008—DECIDED MAY 20, 2008
____________
Before BAUER, KANNE and ROVNER, Circuit Judges.
PER CURIAM. After an Illinois court convicted Gary
LaGuerre of domestic battery in 2005, the Department of
Homeland Security initiated deportation proceedings
on the ground that his conviction rendered him deport-
able. LaGuerre applied for protection under the Conven-
tion Against Torture. An Immigration Judge rejected
LaGuerre’s CAT claim and determined that his domestic
battery conviction was a “crime of violence,” and there-
fore an “aggravated felony” under the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16,
2 No. 06-4164
justifying deportation. The BIA affirmed, and LaGuerre
now petitions for review. Because domestic battery, as
Illinois defines it, is a crime of violence under 18 U.S.C.
§ 16(a), we deny the petition for review.
In 1985 when LaGuerre was eleven years old, he fled
from Haiti to America with his parents. Since coming to
America, LaGuerre secured employment, married, and
fathered a daughter. Unfortunately, he also had several
run-ins with the law. Among them, two convictions for
domestic battery, the second of which occurred in 2005
after LaGuerre punched his ex-girlfriend in the face.
Because this was LaGuerre’s second conviction for do-
mestic battery in Illinois, the court imposed a two-year
sentence.
In 2006, DHS charged that LaGuerre’s second convic-
tion for domestic battery was a “crime of violence,” and
therefore LaGuerre was a deportable aggravated felon.
LaGuerre denied that his conviction was a crime of vio-
lence, and also sought CAT protection. LaGuerre con-
tended that, if he returned to Haiti, he would be killed
because of (1) his uncle’s association with the Ton Ton
Macoutes, the death squad of former dictator “Papa Doc”
Duvalier, and (2) his father’s status as a landowner. The
IJ concluded that LaGuerre’s domestic battery con-
viction constituted a “crime of violence” pursuant to 18
U.S.C. § 16(a) and § 16(b) and therefore warranted deporta-
tion as an aggravated felony. Additionally, the IJ denied
LaGuerre’s request for CAT protection, finding that
LaGuerre failed to establish it was more likely than not
that he would be tortured if he returned to Haiti.
LaGuerre appealed to the BIA. Affirming the IJ, the BIA
examined the charging documents and found that
LaGuerre’s offense constituted a crime of violence under
No. 06-4164 3
§ 16(a). The BIA also affirmed the IJ’s determination
that LaGuerre did not qualify for relief under the CAT.
LaGuerre first argues that the BIA erred when it deter-
mined that domestic battery in Illinois is an offense that
justifies deportation. An offense warrants deportation
if it is as an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(F). That statute states that an aggravated
felony is a conviction for a “crime of violence,” itself
defined in 18 U.S.C. § 16(a), that is punishable for more
than a year. This court reviews the determination that
LaGuerre committed a crime of violence de novo. See Eke
v. Mukasey, 512 F.3d 372, 378 (7th Cir. 2008).
Section 16(a) defines a crime of violence as an offense
that has as an element the “use, attempted use, or threat-
ened use of physical force against the person or property of
another.” LaGuerre argues that his Illinois domestic battery
conviction does not qualify as a crime of violence because,
though punishable for more than a year, domestic battery
does not have “use, attempted use, or threatened use
of physical force” as an element of the crime.
When we examine whether an offense is a crime of
violence under § 16(a), “the inquiry begins and ends with
the elements of the crime.” Flores v. Ashcroft, 350 F.3d
666, 669-71 (7th Cir. 2003). The government argues that
this court should look beyond the plain language of the
statute to the underlying facts of the offense when de-
ciding if a conviction is a crime of violence. This is called
the “modified” approach to evaluating the nature of an
offense. But we have consistently held that the plain
language of § 16(a) limits our review to the elements of
the offense. See United States v. Franco-Fernandez, 511 F.3d
768, 770-71 (7th Cir. 2008); but see Flores, 350 F.3d at 669-
71 (citing United States v. Howze, 343 F.3d 919, 923 (7th
4 No. 06-4164
Cir. 2003)) (noting a limited exception, not applicable
here, for laws that define two different acts as the same
crime, and just one contains the elements of a crime of
violence).
In this case, the elements of LaGuerre’s crime of do-
mestic battery establish that it is a crime of violence.
LaGuerre was charged under one subsection of the bat-
tery statute: 720 ILCS 5/1-3.2(a)(1). This subsection pro-
vides that “[a] person commits domestic battery if he
intentionally or knowingly without legal justification by
any means: (1) Causes bodily harm to any family or
household member.” See 720 ILCS 5/12-3.2(a)(1). We
have recently held that domestic violence, as defined
by this Illinois statute, qualifies as a crime of violence
because, as § 16(a) requires, it has as an element the use
of physical force. United States v. Upton, 512 F.3d 394,
405 (7th Cir. 2008). Our reasoning was definitive and
controls the outcome here:
This provision of the statute unambiguously requires
proving ‘physical force’: to sustain his conviction for
domestic battery, the state had to prove that he
‘[c]ause[d] bodily harm,’ which means that it had as
an element ‘the use . . . of physical force against the
person of another.’
Id. Therefore, we concur with the IJ that LaGuerre’s
domestic battery conviction is an aggravated felony
that subjects LaGuerre to deportation. See 8 U.S.C.
§ 1101(a)(43)(F).
Finally, LaGuerre argues that the BIA applied an incor-
rect legal standard when it determined that he did not
qualify for CAT relief. To qualify for protection under
the CAT, LaGuerre bore the burden of proving to the IJ
No. 06-4164 5
that it is “more likely than not” that he would be tortured
if removed to Haiti. See 8 C.F.R. § 1208.16(c)(2). Our re-
view is limited to only constitutional claims and ques-
tions of law related to LaGuerre’s CAT claim. 8 U.S.C.
§§ 1252(a)(2)(C) & (D); Valere v. Gonzales, 473 F.3d 757,
761 (7th Cir. 2007). LaGuerre does not raise any constitu-
tional claims and his only purported question of law is
a request that we review the correctness of the BIA’s
factual findings that he did not satisfy his burden of
proving likely torture. But we do not have jurisdiction
to review for substantial evidence those conclusions. See
Hamid v. Gonzales, 417 F.3d 642, 647-48 (7th Cir. 2005).
Accordingly, we deny the petition for review.
USCA-02-C-0072—5-20-08