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 violence. 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 violence, see 8 U.S.C. § 1229b(b)(1)(C), which is “any crime of violence ... against a person committed by” a current or former 

domestic partner, 8 U.S.C. § 1227(a)(2)(E)(i). A “crime of violence” 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 categorically involve physical force or they don’t; the elements of 

the crime for which a defendant was convicted, not his underlying 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. Precedent says otherwise. 

The Supreme Court held in Curtis Johnson v. United States

that “‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” 559 

U.S. 133, 140 (2010). Though the Court was interpreting a different 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 felony 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, BeltranAguilar provides a number of hypotheticals that he thinks 

could be prosecuted as Wisconsin batteries that would not involve physical force under Curtis Johnson: a blowhorn that impairs someone’s hearing, smelling salts that impair someone’s 

sense of smell, and a substance in a drink that impairs someone’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 determining whether the offense as defined qualifies as a predicate offense for adverse federal action.” United States v. Jennings, 860 F.3d 450, 460 (2017) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). There must be “a realistic probability, 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 argues.” 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 satisfy 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 under discussion, did—cause pain to the guard’s eyes or nose. 

842 F.3d at 1053. In Jennings we considered a variety of methods of subtly exposing a victim to a harmful agent—for example, 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.