Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

Nos. 07-1514

07-1916

JOSE YIMI CAMPOS-GOMEZ,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF ORDERS OF 

THE BOARD OF IMMIGRATION APPEALS

Before

 Boudin, Lipez and Howard,

Circuit Judges.

William A. Hahn and Hahn & Matkov on brief for petitioner.

Corey L. Farrell, Office of Immigration Litigation, Peter D.

Keisler, Assistant Attorney General, and Terri J. Scadron,

Assistant Director, on motion for summary affirmance.

November 5, 2008
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Per Curiam. At issue in this immigration case is whether

a Rhode Island conviction for simple assault is a "crime of

violence" under 18 U.S.C. § 16 and is thus an "aggravated felony"

under 8 U.S.C. § 1101(a)(43)(F). In an unrelated case, we recently

answered this question in the affirmative. See Lopes v. Keisler,

505 F.3d 58 (1 Cir. 2007). Finding Lopes dispositive, we grant st

respondent's motion for summary affirmance and deny the petition

for review.

Petitioner has been found removable based on his 2005

conviction for misdemeanor assault under R.I. Gen. Laws § 11-5-3.

That enactment, entitled "Simple assault or battery," provides that

"every person who shall make an assault or battery or both shall be

imprisoned not exceeding one year or fined." Id. § 11-5-3(a). As

reported in the criminal complaint and docket sheet, petitioner

pled guilty to the charge of assaulting a police officer (and to a

second, related charge) and received a one-year suspended sentence.

According to respondent, that conviction for simple assault is a

crime of violence and thus an aggravated felony, which renders him

ineligible for discretionary relief.

Three statutory provisions are implicated. "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). The term

"aggravated felony" includes "a crime of violence (as defined in

section 16 of Title 18 ...) for which the term of imprisonment [is]
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at least one year." Id. § 1101(a)(43)(F). And 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.

18 U.S.C. § 16. Because petitioner's assault conviction is a

misdemeanor (under both state and federal law), § 16(b) is not at

issue here. Accordingly, the question is whether use of physical

force is an "element" of Rhode Island simple assault--i.e., "a

constituent part of the offense which must be proved by the

prosecution in every case to sustain a conviction." Singh v.

Ashcroft, 386 F.3d 1228, 1231 (9 Cir. 2004) (internal quotation th

marks and emphasis deleted).

As explained in State v. Jeremiah, 546 A.2d 183, 186

(R.I. 1988), the "standard definition of criminal assault" in Rhode

Island is set forth in State v. Baker, 38 A. 653 (R.I. 1897), as

follows: 

An assault, as ordinarily defined, is any

unlawful attempt or offer with force or

violence to do a corporal hurt to another,

whether from malice or wantonness. The

offense may consist also in putting another in

fear of violence.

Id. at 654 (emphasis added); accord, e.g., State v. Coningford, 901

A.2d 623, 630 (R.I. 2006); State v. McLaughlin, 621 A.2d 170, 177
 Battery is a separate offense. It "refers to an act that 1

was intended to cause, and does cause, an offensive contact with or

unconsented touching of or trauma upon the body of another, thereby

generally resulting in the consummation of the assault."

Coningford, 901 A.2d at 630 (internal quotation marks omitted);

accord, e.g., State v. Davis, 384 A.2d 1061, 1064 (R.I. 1978)

("battery ... is the intentional and unlawful application of the

slightest force to the person of another"). 

 The alien in Lopes was convicted under both § 11-5-3 and 2

the state's Domestic Violence Prevention Act, R.I. Gen. Laws § 12-

29-5. The latter is not a separate offense, but rather imposes

enhanced penalties for assault (and related crimes) when committed

against family or household members. That § 12-29-5 was involved

in Lopes does not affect the analysis of whether simple assault

constitutes a crime of violence. 

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(R.I. 1993). Relying on the emphasized portions of this 1

definition, we concluded in Lopes that under Rhode Island law

"there can be no assault without the presence of physical force."

505 F.3d at 63. We thus held that a conviction for simple assault

under § 11-5-3 "satisfies the statutory definition of a crime of

violence because it has as an element the 'attempted use, or

threatened use of physical force against the person or property of

another.'" Id. (quoting 18 U.S.C. § 16(a)).2

Petitioner's attempts to challenge or distinguish the

reasoning in Lopes fall short. His main argument is that simple

assault in Rhode Island can include "reckless" conduct--which,

under the case law applying Leocal v. Ashcroft, 543 U.S. 1 (2004),

is a mens rea that does not satisfy the "use of physical force"

requirement in 18 U.S.C. § 16. See, e.g., United States v. ZunigaSoto, 527 F.3d 1110, 1123-24 (10 Cir. 2008). We rejected a th
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Leocal-based argument in Lopes, albeit without addressing

recklessness. See 505 F.3d at 63. In any event, petitioner's

expansive definition of assault proves mistaken. He relies solely

on the 1897 Baker decision and two references contained therein to

recklessness. See 38 A. at 654. Yet the court did not there hold,

and has not since held, that reckless as opposed to intentional

conduct could suffice for an assault conviction; to the contrary,

it noted that "[t]here must be an intent to commit an assault, or

else there can be no assault." Id. at 653 (quoting jury charge

with approval). Moreover, petitioner's view is at odds with

general descriptions of the common law. See, e.g., Popal v.

Gonzales, 416 F.3d 249, 255 n.5 (3d Cir. 2005) ("The common law ...

required 'willfulness,' i.e., intent, in order to find a defendant

guilty of simple assault."); 2 Wayne R. LaFave, Substantive

Criminal Law, § 16.3, at 566 & 569 (2d ed. 2003 & '08 Supp.)

(explaining that recklessness does not suffice to establish

assault).

To be sure, some statutory "assault" provisions contain

a recklessness element. See, e.g., Fernandez-Ruiz v. Gonzales, 466

F.3d 1121, 1125 (9 Cir. 2006) (en banc). Yet these are actually th

"battery-type statutes." See 2 LaFave, supra, § 16.2(c), at 557

("In the modern codes, a substantial majority of the battery-type

statutes expressly state that the crime may be committed by

recklessness--that is, where there is subjective awareness of the
 For example, petitioner never objected to the BIA's 3

observation that "[w]hile [§ 11-5-3(a)] proscribes the commission

of both simple assault and battery, the parties appear to agree

that [petitioner] was only convicted of simple assault." As a

result, petitioner's reliance on cases such as Chrzanoski v.

Ashcroft, 327 F.3d 188 (2d Cir. 2003), and United States v. Bayes,

210 F.3d 64 (1 Cir. 2000), is misplaced. The offense in st

Chrzanoski, for example, although denominated as "third degree

assault," required a showing of physical injury and thus was in

fact a form of battery. 

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high risk of physical injury.") (footnotes omitted). And just as

in Lopes, see 505 F.3d at 62, it is clear that petitioner here was

convicted of assault rather than battery.3

Petitioner also alleges that the assault definition

applied by Lopes was drawn from cases involving offenses more

serious than simple assault. See, e.g., McLaughlin, 621 A.2d at

177 (misdemeanor manslaughter); Baker, 38 A. at 653 (assault with

a dangerous weapon). Yet nothing more than simple assault was

involved in State v. Tabele, 621 A.2d 185 (R.I. 1993), which

enunciated a similar definition. In a related vein, petitioner

insists that Congress never intended that the term "crime of

violence" would encompass such a relatively insignificant offense.

Yet the legislative history contains a specific reference to simple

assault suggesting otherwise. See, e.g., Popal, 416 F.3d at 254

n.5. 

The motion for summary affirmance is granted, and the

petition for review is denied.