Hon. John R. Gibson, of the Eighth Circuit, sitting by * designation. 

# U nit edStates C ou rt o f App eal s

For t h e Firs t C ircu it

No. 07-1655 FELIPE RAMIREZ, Petitioner,

v . MICHAEL MUKASEY, Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before Lynch, Circuit Judge, John R. Gibson, Senior Circuit Judge, * and Howard, Circuit Judge.

Matt Cameron for petitioner. Peter D. Keisler, Assistant Attorney General, Civil Division, Mark C. Walters, Assistant Director, and W . Manning Evans, Attorney, Office of Immigration Litigation, Civil Division, U. S. Department of Justice, for respondent.

March 14, 2008-2- JOHN R. GIBSON, Senior Circuit Judge. Felipe Ramirez, a native and citizen of El Salvador, p e t i tions for review of the Board of Immigration Appeals' order of removal. The BIA found that Ramirez's 1999 conviction for indecent assault a n d battery on a person fourteen years or older, Mass. Gen. Laws ch. 265, § 13H, was an aggravated felony, 8 U.S.C. § 1101(a)(43)(F), which rendered
Ram i r e z r e m o v a b l e a n di n e l i g i b l e f o r a n yf o r mo f r e l i e f f r om removal. Ramirez contends that the crime for which he was convicted includes battery by merely offensive--not harmful-- touching, and therefore should not be classified as a crime of violence under 18 U.S.C. § 16, or , i t f o l l ows, as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Although this precise question has not been d e c ided by this Circuit, earlier cases foreshadowing the question persuade us to reject Ramirez's argument. We deny the petition for review.

Ramirez was a lawful pe r m a nent resident on February 4, 1999, when he pleaded guilty to indecent assault and battery on a person fourteen yea r s o r o l d er under Mass. Gen. Laws ch. 265, § 13H, and received a sentence of two years, which was suspended. On September 27, 2000, the Immig r a t i on and Naturalization Service charged him with removability on the ground that he had been convicted of an aggravated felony. The charging papers a l leged that his crime was an aggravated felony because it was a crime of violence, as defined in 18 U.S.C. § 16, for which he had been-3-

sentenced to a term of imprisonment of at least one year. An Immigration Judge ordered Ramirez removed to El Salvador.

Ramirez appealed to the BIA, which affirmed in a reasoned opinion on March 27, 2007. Ramirez argued that the crime for which he was convicted, Mass. Gen. L a w s ch. 265, § 13H, was not categorically a "crime of violence" within the meaning of 18 U.S.C. § 16 because assault and battery can be of two types--harmful touching or merely o f fensive touching. See United States v. Harris, 964 F.2d 1234, 1236 (1st Cir. 1992), overruled on other grounds, Shepard v. United States, 125 S. Ct. 1254, 1258 (2005). Ramirez contended that the merely offensive type of touching would not qualify as a crime of violence. Th e BIA rejected that argument, r e a s oning that the Massachusetts crime of indecent assault and battery on a person f o u r t e e n or older by its nature presented a substantial risk that the perpetrator would use force to overcome the victim's lack of consent. Accordingly, the BIA affirmed. On petition for review, Ramirez contends that the BIA committed a legal error in holding that Mass. Gen. Laws ch. 265, § 13H by its nature involves a substant i a l r i s k of the use of physical force against the victim. The question of whether a state crime is an aggravated felony is a question of law that we review de novo. Conteh v. Gonzales, 461 F.3d 45, 52 (1st Cir. 2006), cert. denied, 127 S. Ct. 3003 (2007).The omission of the verb from the statute makes i t u nclear 1 whether the statute refers to the sentence actually imposed or the authorized sentence. The Third Circuit has interpreted the statute to refer to the sentence actually imposed. Bovkun v. Ashcroft, 283 F.3d 166, 170 (3d Cir. 2002) (Alito, J.). In this case, the sentence imposed exceeds one year. -4- Deciding which specific convictio n s a re covered by 8 U.S.C. § 1227(a)(2)(A)(iii) requires a look at a chain of federal definitional statutes. Section 1227(a)(2)(A)(iii) itself provides, "Any alien who is convicted of an a g g r a v a t ed felony at any time after admission is deportable." (Emphasis added.) To find out what an "aggravated felony" is, we must turn to 8 U.S.C. § 1101(a)(43), which contains a long list of crimes and types of crimes that are aggravated f e l o nies. Only one item in that list concerns us here: "(F) a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [sic] at least one year." 1 (Emphasis added.) The search continues to 18 U.S.C
. § 16, which defines "crime of violence" in two clauses: (a) an offense that has as an element the use, attempted use , o r t h r e a t e n e du s e o f p h y s i c a l f o r c e a g a i n s t 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. (Emphasis added.) The BIA relied on subsection (b) only, and so it focused o n t h e r i sk of the use of physical force, rather than whether the crime required actual, attempted, or threatened use of-5-

such force.

Next, we must decide whether Ramirez's c r ime of conviction, Mass. Gen. Laws ch. 265, § 13H, falls within the
cat e g o r yof crimes described in subsection 16(b), i.e., a felony that by its nature involves a substan t i al risk of the use of physical force. Ramirez does not dispute that his conviction was a felony. Section 13H does not define "indecent assault and battery on a person who has attained age fourteen," but only states that whoever commits that off e n se shall be punished. The definition of indecent assault and battery is supplied by judicial construction. The e l ements of indecent assault and battery are "intentional, unprivileged, and indecent touching of the victim." Commonwealth v. Oliveira, 760 N.E.2d 308, 310 n.4 (Mass. App. Ct. 2002); Commonwealth v. Lavigne, 676 N.E.2d 1170, 1172 (Mass. App.
Ct. 1997). L a c ko f c o n s e n t i s a l s o a n e l e m e n t o f t h e c r i m e of indecent assault and battery on a person aged fourteen or older. Maghsoudi v. INS, 181 F.3d 8, 15 (1st Cir. 1999); Commonwealth v. Burke, 457 N.E.2d 622, 625 n.4 (Mass. 1983), abrogated in part by 1986 Mass. Acts ch. 187.

In Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000), the Second Circuit considered the very question of whet h e r the Massachusetts crime of indecent assault and battery on a person who has attained the age of fourteen is a "crime of violence" under 18 U.S.C. § 16(b). The Second Circuit reviewed the elements of § 13H,-6-

in particular the elements of indecency and lack of consent by the victim to the touching. Id. at 176-77. The court in Sutherland concluded, "Like the BIA, we are persuaded that any violation of Mass. Gen. Laws ch. 265, § 13H, by its nat u r e , p resents a substantial risk that for c e m ay be used in order to overcome the victim's lack of consent and accomplish the indecent touching." Id. at 176. The Second Circuit held that a conviction under § 13H was a "crime of violence" that rendered an alien removable. Id. at 177; accord United States v. Lepore, 304 F. Supp.2d 183, 185-89 (D. Mass. 2004); Sango-Dema v. Dist. Director, INS, 122 F. Supp.2d 213, 218-19 (D. Mass. 2000).

In United States v. Leahy, 473 F.3d 401 (1st Cir.), cert. denied, 128 S. Ct. 374 (2007), this Court considered the similar question of whether a violation o f § 1 3 H was a "violent felony" within the meaning of the Armed Career Criminal Act, 1 8 U .S.C. § 924(e)(2)(B)(ii). Instead of a substantial risk of use of physical force, as is required by § 16(b), the Armed C a r e e r C riminal Act requi r e s that a felony "involve conduct that presents a serious potential r i s kof physical injury to another." Id. (Emphasis added.) In Leahy, we followed the reasoning of Sutherland to conclude that in violations of § 13H, the n e e dto overcome the victim's lack o f c o nsent would lead to a substantial risk of the use of physical force, as Sutherland held. From there, we further deduced that such use of physical force created a substantial risk-7-

of physical injury. 473 F.3d at 411-12. We therefore held that a conviction under § 13H was for a "violent felony." Id.; see also United States v. Cadieux, 500 F.3d 37, 45-47 (1st Cir. 2007) (relying on Leahy and acknowledging its reliance on Sutherland; holding that conviction of Massachusetts crime of indecent assault and battery of a person under fourteen is for a "violent felony"), cert. denied, 2008 WL 423722 (Feb. 19, 2008); United States v. Holloway, 499 F.3d 114, 118 (1st Cir. 2007) ("violent felony" and "crime of violence" under U.S.S.G. § 4B1.1 are so similar that decisions interpreting one of the terms are relevant in construing the other).

Because the reaso n i n g of Leahy includes the conclusion that Suth e r l a n d was correctly decided, we could not reverse this case without contradicting Leahy. Moreover, we see no reason to disagree with Sutherland.

Therefore, in accordance with our reasoning in Leahy, 473 F.3d at 412, we DENY Ramirez's petition for review.