Eliseo Beltran-Aguilar v. Matthew G. Whitaker ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1799
ELISEO BELTRAN-AGUILAR,
Petitioner,
v.
MATTHEW G. WHITAKER,
Acting Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A089-856-143
____________________
ARGUED OCTOBER 25, 2018 — DECIDED JANUARY 2, 2019
____________________
Before ROVNER, HAMILTON, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. Eliseo Beltran-Aguilar, a native and
citizen of Mexico, applied for cancellation of removal from the
United States. An immigration judge denied his application,
and the Board of Immigration Appeals affirmed the denial on
the ground that Beltran-Aguilar’s conviction for Wisconsin
battery involving domestic abuse was a crime of domestic vi-
olence. Beltran-Aguilar now petitions this court for review,
2 No. 18-1799
arguing that the Wisconsin offense is not categorically a crime
of violence. It is, so we deny his petition.
Federal law makes an alien ineligible for cancellation of
removal if he has been convicted of a crime of domestic vio-
lence, see 8 U.S.C. § 1229b(b)(1)(C), which is “any crime of vi-
olence … against a person committed by” a current or former
domestic partner, 8 U.S.C. § 1227(a)(2)(E)(i). A “crime of vio-
lence” is “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). Offenses either cate-
gorically involve physical force or they don’t; the elements of
the crime for which a defendant was convicted, not his under-
lying conduct, are what matters. See Leocal v. Ashcroft, 543 U.S.
1, 7 (2004).
Beltran-Aguilar was convicted of battery under Wisconsin
Statute 940.19(1), which prohibits “caus[ing] bodily harm to
another by an act done with intent to cause bodily harm to
that person or another without the consent of the person so
harmed.” In Wisconsin, “bodily harm” means “physical pain
or injury, illness, or any impairment of physical condition.”
Wis. Stat. § 939.22(4). Beltran-Aguilar argues that Wisconsin
battery is not a crime of violence because it can be satisfied by
causing only illness or impairment of physical condition,
which he says do not necessarily require physical force. Prec-
edent says otherwise.
The Supreme Court held in Curtis Johnson v. United States
that “‘physical force’ means violent force—that is, force capa-
ble of causing physical pain or injury to another person.” 559
U.S. 133, 140 (2010). Though the Court was interpreting a dif-
ferent statute—18 U.S.C. § 924(e)—than the one at issue here,
we’ve confirmed that “[t]he definition of a crime of violence
No. 18-1799 3
in § 924(e) mirrors the language found in 18 U.S.C. § 16(a),
and the statutes are interpreted in the same way.” De Leon
Castellanos v. Holder, 652 F.3d 762, 765 (7th Cir. 2011).
We have already held that Wisconsin’s definition of bodily
harm “tracks what Curtis Johnson said would suffice.” Yates v.
United States, 842 F.3d 1051, 1053 (7th Cir. 2016) (holding that
the Wisconsin offense of battery by a prisoner is a crime of
violence under § 924(e)). And we reached a similar conclusion
in United States v. Yang, where we held that the Minnesota fel-
ony of domestic assault—an offense premised on the same
definition of bodily harm as Wisconsin battery—was a crime
of violence. 799 F.3d 750, 756 (7th Cir. 2015); see also Minn. Stat.
§ 609.02 Subd. 7. Notwithstanding these authorities, Beltran-
Aguilar provides a number of hypotheticals that he thinks
could be prosecuted as Wisconsin batteries that would not in-
volve physical force under Curtis Johnson: a blowhorn that im-
pairs someone’s hearing, smelling salts that impair someone’s
sense of smell, and a substance in a drink that impairs some-
one’s health or ability to walk.
Even if Beltran-Aguilar is right that these examples don’t
involve physical force, he fails to show that Wisconsin would
actually prosecute them as battery. “[T]he Supreme Court has
cautioned us not to allow our ‘legal imagination[s]’ to roam
too freely in postulating what types of conduct theoretically
might be prosecuted under a state statute for purposes of de-
termining whether the offense as defined qualifies as a predi-
cate offense for adverse federal action.” United States v. Jen-
nings, 860 F.3d 450, 460 (2017) (quoting Gonzales v. Duenas-Al-
varez, 549 U.S. 183, 193 (2007)). There must be “a realistic prob-
ability, not a theoretical possibility, that the State would apply
its statute to conduct that falls outside the generic definition
4 No. 18-1799
of a crime.” Gonzales, 549 U.S. at 193. To show that realistic
probability, an offender “must at least point to his own case
or other cases in which the state courts in fact did apply the
statute in the special (nongeneric) manner for which he ar-
gues.” Id. Beltran-Aguilar has not identified any case in which
Wisconsin’s definition of “bodily harm” has been applied in
a way that does not accord with Curtis Johnson. Accordingly,
Wisconsin battery is a crime of violence.
It’s worth noting that Beltran-Aguilar would have had an
uphill battle to show that his hypotheticals don’t involve
physical force. In both Yates and Jennings, we concluded that
actions similar to those hypothesized by Beltran-Aguilar sat-
isfy Curtis Johnson’s definition. In Yates we explained that a
prisoner throwing a cup of urine at a guard involved physical
force because urine can—and in the actual state court case un-
der discussion, did—cause pain to the guard’s eyes or nose.
842 F.3d at 1053. In Jennings we considered a variety of meth-
ods of subtly exposing a victim to a harmful agent—for exam-
ple, exposing a victim to a toxin, biological agent, or hidden
explosive by means of secrecy or deception—and concluded
that they all would involve physical force because “the agent
itself will, through a physical process, work a concrete harm
on the victim.” 860 F.3d at 459. Like the actions considered in
Yates and Jennings, Beltran-Aguilar’s hypotheticals all seem
capable of causing physical pain or injury. But because he
could not identify any Wisconsin conviction on similar facts,
we need not decide the issue.
The petition for review is DENIED.