* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-61002

ANTONIO FERNANDO DE PINA TEIXEIRA FORTES, also known as

Antonio Fortes Fernandes

Petitioner

v.

MICHAEL B MUKASEY, US ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A43 385 987

Before KING, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

On October 11, 2006, the Board of Immigration Appeals (“BIA”) held that

Antonio Fernando De Pina Teixeira Fortes, also known as Antonio Fortes

Fernandes (“Fortes”), was deportable from the United States as an alien

convicted of an aggravated felony because his previous Massachusetts conviction

for assault and battery was a crime of violence under 18 U.S.C. § 16(a). Fortes

petitions this court to set aside that ruling. He argues that his past conviction

United States Court of Appeals

Fifth Circuit

F I L E D

December 5, 2007

Charles R. Fulbruge III

Clerk
No. 06-61002

2

was not a crime of violence because: (1) Massachusetts’s assault and battery

statute is over-inclusive and nothing proves that he was convicted of the type of

crime that would be a crime of violence; and (2) Massachusetts does not classify

his crime as a felony. Because we agree that Fortes’ prior conviction was not a

crime of violence under § 16(a), we do not address his second argument.

I. FACTUAL AND PROCEDURAL BACKGROUND

Fortes, a citizen of Cape Verde, was admitted to the United States as a

lawful permanent resident on March 4, 1995. On September 6, 2001, Fortes was

convicted in a Massachusetts state court of simple assault and battery. The

charging papers, submitted on August 21, 2001, alleged that Fortes “did assault

and beat” the victim in violation of MASS. GEN. LAWS ch. 265, § 13A. Fortes

tendered an admission of facts sufficient for a finding of guilty and was

sentenced to one year’s imprisonment. Three years later, in September 2004,

Fortes was convicted in another Massachusetts court of assault and battery with

a dangerous weapon under MASS. GEN. LAWS ch. 265, § 15A.

On June 20, 2005, Immigrations and Customs Enforcement (“ICE”) opened

removal proceedings against Fortes under § 237 of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii). ICE charged that Fortes

was previously convicted of an aggravated felony—a crime of violence—based on

his conviction in 2004 for assault and battery with a dangerous weapon. On

November 7, 2005, ICE amended the allegations against Fortes. Rather than

seeking his deportation due to his 2004 conviction under § 15A, ICE alleged that

Fortes was removable as a result of his 2001 conviction under § 13A. 

On October 31, 2005, the immigration judge (“IJ”) held a hearing to

consider whether Fortes was deportable. The hearing was continued in order to

afford Fortes an opportunity to hire counsel. After a total of three continuances,

Fortes represented himself at a removal hearing on December 14, 2005. The IJ

ordered that Fortes be deported because he admitted that he was convicted for
No. 06-61002

3

assault and battery with a dangerous weapon. On April 25, 2006, the BIA

reversed the IJ’s decision because the IJ considered the alleged 2004 conviction,

even though ICE had withdrawn that allegation. It instructed the IJ to

determine whether the alleged 2001 conviction could be proven and, if so,

whether it constituted a crime of violence.

A removal hearing was held on May 22, 2006, where Fortes admitted that

he was convicted in 2001, and the IJ found that Fortes was removable. The IJ

continued the proceedings, however, to permit Fortes to file a claim for

withholding. On June 12, 2006, Fortes conceded that such relief was not

available to him. He also renewed his objection to the order of removal, arguing

that his conviction was not a crime of violence because: (1) the Massachusetts

statute he was convicted under includes both forceful and non-forceful types of

assault and battery; and (2) his conviction did not involve the use of physical

force.

On June 12, 2006, the IJ again ruled that Fortes committed a crime of

violence. The IJ stated that, under Massachusetts common law, an assault

includes an attempted or threatened use of physical force, and a battery includes

an assault. The IJ reasoned, therefore, that every Massachusetts assault and

battery conviction is a crime of violence ifthe alien receives a sentence of at least

one year. Since Fortes received a one-year sentence, he was removable as an

aggravated felon.

Fortes filed a timely appeal to the BIA. He argued that his conviction was

not a crime of violence because: (1) Massachusetts common law prohibits nonforceful and non-harmful touching; and (2) assault and battery is only a

misdemeanor in Massachusetts. On October 11, 2006, the BIA found that Fortes

was removable as an alien convicted of an aggravated felony under § 16(a).

While recognizing thatthe Massachusetts law was over-inclusive,the BIA ruled

that Fortes was convicted of an assault and battery that included harmful
No. 06-61002

4

physical force. It reached this conclusion because the August 21, 2001, charging

papers alleged that Fortes did “assault and beat” the victim.

Fortes filed a timely petition for review on October 30, 2006.

II. JURISDICTION AND STANDARD OF REVIEW

Under the REAL ID Act § 106, a petition for review is “the sole and

exclusive means for judicial review of an order of removal entered or issued

under any provision of [the INA].” 8 U.S.C. § 1252(a)(5). While the REAL ID

Act generally prohibits review of “any final order of removal against an alien

who is removable by reason of having committed [an aggravated felony,]” id. at

§ 1252(a)(2)(c), we may review “constitutional claims or questions of law,” id. at

§ 1252(a)(2)(D). Whether a past conviction constitutes an aggravated felony is

a pure question of law. Larin-Ulloa v. Gonzales, 462 F.3d 456, 461 (5th Cir.

2006) (citing Rodriguez-Castro v. Gonzales, 427 F.3d 316, 319 (5th Cir. 2005)).

We review the issue de novo. Id.

III. DISCUSSION

A. A Crime of Violence Under § 16(a)

Under § 237 of the INA, “[a]ny alien who is convicted of an aggravated

felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii).

An “aggravated felony” includes “a crime of violence . . . for which the term of

imprisonment [is] at least one year . . . .” 8 U.S.C. § 1101(a)(43)(F). A “crime of

violence,” as used in that statute, is defined in 18 U.S.C. § 16(a) as “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) (emphasis

added). The “physical force” required by § 16 is “destructive or violent force.”

United States v. Rodriguez-Guzman, 56 F.3d 18, 20 n.8 (5th Cir. 1995); United

States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir. 2006). It does not

encompass indirect acts, such as luring a poor swimmer into a strong undertow
No. 06-61002

5

or otherwise causing a person harm through subterfuge. Villegas-Hernandez,

468 F.3d at 879 n.6 (citation omitted).

To determine whether a past conviction satisfies § 16, we apply the

“categorical approach” originally developed in Taylor v. United States, 495 U.S.

575 (1990). Larin-Ulloa, 462 F.3d at 463-64; see also United States v. ChapaGarza, 243 F.3d 921, 924 (5th Cir. 2001). We look to the statutory definition of

the underlying crime and “ask whether that legislatively-defined offense

necessarily fits within the INA definition of [a crime of violence].” Larin-Ulloa,

462 F.3d at 463 (citations omitted). We do not consider the underlying facts that

resulted in the alien’s conviction. Id. (citations omitted); see also Leocal v.

Ashcroft, 543 U.S. 1, 7 (2004) (“[The] language [of § 16] requires us to look to the

elements and the nature of the offense of conviction, rather than to the

particular facts relating to petitioner’s crime.”). As such, a prior offense

“satisfies subsection 16(a)’s definition of a crime of violence only if a conviction

for that offense could not be sustained without proof of the use of ‘destructive or

violent’ force.” Villegas-Hernandez, 468 F.3d at 879 (holding that a conviction

for causing bodily injury to another was not a predicate offense because a

number of non-forceful acts could cause bodily injury).

If the necessary force element cannot be ascertained because the statute

of conviction defines more than one offense, we may look to certain limited

documents to ask whether the alien was necessarily convicted under a section

prohibiting a crime of violence. Larin-Ulloa, 462 F.3d at 464 (citations omitted).

Where an alien pleaded guilty to the prior offense, we consider documents like

the “‘charging document, written plea agreement,transcript of plea colloquy, and

any explicit factual finding by the trial judge to which the defendant assented.’”

Omari v. Gonzales, 419 F.3d 303, 308 (5th Cir. 2005) (quoting Shepard v. United

States, 544 U.S. 13, 16 (2005)). However, if these documents are “insufficient to

establish that the petitioner was necessarily convicted of an aggravated felony,
No. 06-61002

1 Respondent doesnot argue that Fortes’ convictionconstitutes a crime of violenceunder

§ 16(b), which includes “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(b). Indeed, Respondent states that we

need not consider § 16(b) because the BIA did not rely on that subsection.

6

we must find that ‘the government has not met its burden of proving that the

conduct for which the petitioner was convicted constitutes a predicate offense,

and the conviction may not be used as a basis for removal.’” Larin-Ulloa, 462

F.3d at 464 (quoting Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004)).

B. Analysis

Fortes argues that his prior conviction was not a crime of violence because

§ 13A prohibits non-forceful acts, and there was insufficient evidence to show

that he was convicted for an assault and battery offense predicated on the use

of physical force. He asserts that the underlying indictment, which alleged that

he “assault[ed] and beat” the victim, proves nothing because it used language

standard to all § 13A indictments. Fortes finds support for this argument in

United States v. Jones, 235 F.3d 342, 347 (7th Cir. 2000), where the Seventh

Circuit found that a § 13A conviction was not a crime of violence as defined by

§ 4B1.2 of the United States Sentencing Guidelines, despite an allegation that

the defendant did “assault and beat” the victim.

On the other hand, Respondent argues that the charging papers prove

Fortes was prosecuted for an offense that included the use of force as an

element.1 Respondent points to First Circuit case law holding that a § 13A

conviction is a crime of violence, under the sentencing guidelines at least, if it is

charged that the defendant did “assault and beat” the victim. See, e.g., United

States v. Mangos, 134 F.3d 460, 464 (1st Cir. 1998). The First Circuit disagrees

“with the Seventh Circuit’s basic premise that ‘boilerplate language’ alleging an

assault and battery under Massachusetts criminal law is insufficient to deem a
No. 06-61002

2 Section 13A(a) merely sets forth the sentence for committing a simple assault and

battery. Section 13A(b), meanwhile, sets forth penalties for more serious forms of assault and

battery, including those that: (i) result in serious bodily injury; (ii) are committed upon

pregnant women; and (iii) are committed in violation of restraining orders. Respondent does

not argue that Fortes was convicted under § 13A(b), and we find nothing in the record to

indicate otherwise.

7

subsequent conviction a crime of violence under § 4B1.2.” United States v.

Santos, 363 F.3d 19, 24 (1st Cir. 2004).

Notwithstanding the parties’ focus on the charging papers, we find that a

§ 13A conviction for simple assault and battery never has as an element “the

use, attempted use, or threatened use of physical force.” The definition of simple

assault and battery, which is not set forth in § 13A, is provided by

Massachusetts common law.2 Mangos, 134 F.3d at 463. It “is the intentional

and unjustified use of force upon the person of another, however slight, or the

intentional doing of a wanton or grossly negligent act causing personal injury to

another.” Commonwealth v. McCan, 178 N.E. 633, 634 (Mass. 1931) (emphasis

added). Intentional assault and battery encompasses two different types of

offenses: harmful batteries and offensive batteries. Mangos, 134 F.3d 460, 463-

64 (citing Commonwealth v. Burke, 457 N.E.2d 622, 624 (Mass. 1983)). The first

involves actual or potential physical harm, while the latter involves nonconsensual, but un-harmful, touching. United States v. Harris, 964 F.2d 1234,

1236 (1st Cir. 1992) (citations omitted). While “force” is necessary to commit a

harmful battery, the force may “be indirect, as by setting in motion some force

or instrumentality with the intent to cause injury.” Commonwealth v. Dixon,

614 N.E.2d 1027, 1029 (Mass. App. Ct. 1993) (citing Commonwealth v. Stratton,

114 Mass. 303 (1873)).

Respondent assumes that any conviction for a “harmful battery” must

include an element of force. But “slight” force is inconsistent with “violent or

destructive force,” even if it sometimes results in physical harm. And “indirect
No. 06-61002

8

force” is not “physical force.” See United States v. Vargas-Duran, 356 F.3d 598,

606 (5th Cir. 2004) (“There is . . . a difference between a defendant’s causation

of an injury and the defendant’s use of force.”). To illustrate, in Massachusetts,

“[o]ne is guilty of an assault and battery who delivers to another a thing to be

eaten, knowing that it contains a foreign substance and concealing the fact, if

the other, in ignorance of the fact, eats it and is injured in health.” Stratton, 114

Mass. at 303. On the other hand, we have stated that § 16(a)’s definition of force

does not include “making available to the victim a poisoned drink while

reassuring him the drink is safe . . . [because] the government would not need

to show the defendant used physical force against the person . . . of another.”

Villegas-Hernandez, 468 F.3d at 879.

We pause to address one of our previous cases that may have caused

Respondent to assume that Massachusetts’s simple assault and battery statute

includes force as an element. In Andrade v. Gonzales, 459 F.3d 538, 544-45 (5th

Cir. 2006), we recognized that § 13A is a divisible statute, and concluded that

a conviction under § 13A was not a per se aggravated felony. We also held that

the underlying statute had as “an elementthe use, attempted use, or threatened

use of physical force against the person or property of another . . . .” Id. at 545

(internal quotations omitted). That was so because “the 1996 conviction for

which [the petitioner] was ordered removed also concerned a violation of a

domestic abuse protective order.” Id. at 544-45.

Andrade, however, does not mandate the same conclusion in this case

because there is no allegation that Fortes violated a domestic restraining order.

This is not a mere difference between the two petitioners’ conduct. Cf. VillegasHernandez, 468 F.3d at 883 (stating thatthe means of violating a statute are not

relevant). Rather, Fortes was charged under a separate and distinct subsection

of § 13A. Simple assault and battery, for which Fortes was convicted, is

governed by § 13A(a); assault and battery, in conjunction with a violation of a
No. 06-61002

9

restraining order, is governed by § 13A(b). Obviously, the elements of the

offense are not the same, and it is unsurprising that one offense in a divisible

statute constitutes a crime of violence under § 16(a), while another offense under

a separate subsection does not.

Lastly, we note that our decision is consistent with both the First and

Seventh Circuits’ interpretation of § 13A. Those two circuits agree that

Massachusetts’s simple assault and battery crime does not have as an element

the use of force. See United States v. Fernandez, 121 F.3d 777, 780 (1st Cir.

1997) (“Neither violence, nor the use of force, is an essential element ofthe crime

. . . .”); Jones, 235 F.3d at 347 (“[Defendant’s] conviction does not qualify . . .

since actual, attempted or threatened physical force is not a necessary element

of the offense.”). While they disagree about the effect of allegations in the

charging papers under U.S.S.G § 4B1.2(a)(1)(ii), the question is meaningless in

this context. See United States v. Charles, 301 F.3d 309, 314 (5th Cir. 2002) (en

banc) (holding that is error to conflate a § 16 crime of violence with § 4B1.2(a)

crime of violence). We may not analyze the indictment or other like documents

to see if Fortes violated § 13A by using physical force once we conclude that the

element of force is not necessary to a conviction. See Villegas-Hernandez, 468

F.3d at 883.

IV. CONCLUSION

For the foregoing reasons, we GRANT the petition for review and remand

for any further consideration consistent with this opinion.