# Unit ed Sta tes Cou rt of Appeals
For the Seventh Circui t Chic ago, I lli nois 60604 Arg ued November 20, 2013 Deci ded February 12, 2014

Before
DANIEL A. MANIO N, Circ uit Judge
ILANA DIAM OND ROVNER, Circ uit Judge
ANN CLAIRE WI LLIAMS , Circ uit Judge

No. 13-2256
ADNAN HAIRIC, Petitioner ,

v. ERIC H. HOLDER, JR., Att or ney General of t he Uni ted S tate s, Responden t

. Peti tion for Rev i ew of an Order of the Board o f Immi gr ation Appeals

. No. A079 842 088

O R D E R
Adnan Hai ric, a lawfu l permanent residen t, petiti ons for r eview of the Board of Immi gr ation Appeals ’ deci si on fi nding hi m remov able bec ause hi s convi cti on for t hi rddegr ee sexual ass ault i n Wi scons i n quali fi es as a c rim e of violence, and h ence, an aggr avat ed felony. See 8 U.S.C. §§ 1227(a)(2)(A)( i i i ), 1101(a) (43)( F). We deny the pet i tion. Twenty-si x-year -old Hai rici s a nati ve and ci tizen of Bosn i a-Herzego vina. H e becam e a lawfu l permanent residen t of t he U.S. in 2004. In 2010 he w as ch arg ed wi th NON PRECEDENTIAL DISPOSITION To be ci ted only i n acc or dance w i th Fed. R. App. P. 32.1No. 13-2256 Page 2

one count of second-degree sexual assau lt, see W I S

. S TAT . § 940.225(2)( a), for hav i ng 1 sexual intercour se wi th a woman wi thout her consent and b y use of force. In 2011 he pleaded gui lty t o a lesser charge o f thi rd-degr ee sexual ass ault (for sexual i ntercour se wi thout consent) i n violati on of Wis consin Stat ute § 940.225(3). The judge sentenced 2 Hai ricto t hree y ears’ im pris onment followed by thr ee year s of extended supervisi on but then sus pended the pris on sentence and plac ed hi m on three y ears’ pro bati on on condi tion that he serve o ne year i n jail ( wi th release pr i vileges for jo b-related activi ties, sch ool, and sex-offender tr eatment). After DHS put a hold on hi s release privi leges, the judge g ranted Hairi c’s request for go od-tim e credi t. In 2012, DHS sent Hai rica Notice to Appear, charg i ng that his convic tion for thi rd-degr ee sexual ass ault made hi m remov able und er 8 U.S .C. § 1227(a)(2) (A)(i i i ) as an ali en who had b een convic ted of an agg rav ated felony—a “crime of vi olence,” defined in 18 U.S.C. § 16, for whi ch the pri son term is at least one y ear, see 8 3 U.S.C. § 1101(a)(43)(F). D uri ng remo val pro ceedings, Hai ricdeni ed that he had been convic ted of an agg rav ated felony. He ar gued that t hi rd-degr ee sexual ass ault i s not a cri me of violenc e under 18 U.S.C . § 16 becau se i t does not i nclu de as an elemen t the use, atte mpted use, or thr eat o f force as requi red by § 16(a), and does not present a sub stanti al ris k of the use of physi cal force as requi red by § 16(b). Hai ricalso maintai ned that hi s pri son term was less than one year becau se he was serving a year in jail as part o f hi s probation and w as allowed to leave dur i ng the day t o wor k and go to

Under t hi s statute, a person is gui lty o f a Class C felony if he “[h] as sexual 1 contact or sexual intercour se wi th another person wi thout consent of t hat person by use
or threatof force or violence.” W I S

. S TAT

. § 940.225(2)( a). A person commi ts thi rd-degr ee sexual ass ault, a Class G felony, by either 2 “ha[vi ng] sexual intercour se wi th a person wi thout t he consent of that person” o r “ha[vi ng] sexual contact in the manner described in sub. (5) (b) 2. or 3. wi th a person wi thout t he consent of that person.” W I S

. S TAT

. § 940.225(3).
“Crime of vi olence” has two defini tions under 18 U.S.C. § 16. S ecti on 16(a) 3 defines i t as “an offens e that has an element the use, attempted use, or threat ened use of physi cal force agai nst the person or proper ty o f another,” and § 16(b) defines i t as “any other offense that i s a felony and that, by its n ature, involves a subs tantial ri sk that physi cal force agai nst the person or proper ty o f another may be used i n the course of commi tting the offense.” 18 U.S.C. § 16.No. 13-2256 Page 3

sch ool, and also becaus e the state judge g ranted g ood-time c redit, reducing hi s term of i mpri sonment to less than one year

. The IJ deci ded that Hairi c was remov able as anaggr avat ed felon, reasonin g that sexual intercour se wi thout consent is a cri me of violenc e under 18 U.S.C . § 16(b) becau se “by i ts nature” it involv es a substanti al ris k thatphysi cal force may be us ed i n the course of commi tting the offense. The IJ reasoned that t he Wi scons i n statute under whi ch Hai ricwas c onvicted, W I S

. S TAT

. § 940.225(3), c rim inali zed two ty pes of conduc t—sexual i ntercour se and s exual contact—and that t herefor e a modi fi ed catego ric al approach should b e used to deter mine whether Hai richad been c onvicted 4 of a cri me of violenc e. The IJ found that Hai richad sti pulated that t he origi nal cri minal complaint agains t hi m was the factual bas i s for hi s gui lty plea. The IJ then loo ked to the cri minal complaint, found that Hai richad pleaded gui lty t o “sexual i ntercour se wi th a person wi thout t he consent of that person,” and concluded that there was a sub stanti al ris k that physi cal force would b e used to commi t this offense.( DHS conceded an d the IJ agr eed that t hi rd-degr ee sexual ass ault i s not a crim e of violence un der § 16(a) becau se the use of force i s not an element of the o ffens e.) The IJ als o concluded that the year Hai ricwas s erv i ng i n jail as part o f hi s probation wasa “ter m of i mpri sonment of at least one year ” (as requi red by t he defini tion of “aggr avat ed felony” in8 U.S.C. § 1101(a)( 43)(F)) b ecaus e the r elease pri vileges w ere irrelev ant and the state j udge’s gr ant of go od-tim e credi t did not modify the sentence.
The Board affi rmed. Trackin g much of the IJ’s anal ysi s, the Board assumed that thi rd-degr ee sexual ass ault was n ot cate gor i cally a cri me of violenc e but nonetheless

The modi fi ed catego ric al approach i s appli ed when a s tatut e describes m ulti ple 4 offenses, some that quali fy as a cri me of violenc e and other s that do not . Under t hi s approach, courts may loo k at t he convi cti on’s judi ci al recor d—e.g., charging documents, p lea colloquy—“for the li mi ted purpose o f determin i ng whi ch part of the offense the pri or convic tion w as for,” but the courtsti ll does not ex amine the “part i cular facts u nderlying the convic tion.” United S tat es v. Taylor , 630 F.3d 629, 633 (7th Cir. 2010); see Un ited States v. Curtis , 645 F.3d 937, 940 (7th Cir. 2013). In c ontr ast, under the catego ric al approach gener ally used to deter mine whether an offense i s a cri me of violence u nder 18 U.S .C. § 16, courts loo k only “to t he elements of the offense and the nature o f the offense of c onvicti on, rat her than to the part i cular fac ts relat i ng to the petiti oner’ s cri me.” Zivkovic v. Holder, 724 F.3d 894, 904 (7th Cir. 2013) ( quoting Leocal v. Ashcroft, 543 U.S. 1, 7 (2004)).No. 13-2256 Page 4

conclu ded that Hairi c had b een convic ted of a crime of vi olence under the modi fi ed catego ric al approach. Relying on the plea colloquy’s tr ansc ript, the Board det ermin ed that Hairi c had s exual i ntercour se wi thout t he vic tim ’s consen t and wi th the k nowledge that he lacked her consent. The Boar d conclu ded that Hairi c had b een convic ted of a cri me of violenc e becaus e “whenever sexual in ter course wi thout t he vic tim ’s consen t is commi tte d i n violati on of 940.225(3) of the Wi scons i n Stat utes, there is al ways an i nherent ‘substanti al ris k’ t hat i ts consu mmati on wi ll requi re t he i ntentional us e of violent physi cal force against the vic timto o ver come the vic tim ’s wi ll and c omplete t he act of i ntercour se.” The Board also agre ed wi th the IJ t hat the g ood-time c redit Hai ric received di d not alte r his sentence to a ter m of less than one year of i mpri sonment.
Hai ric ’s main argument inhi s peti tion for rev i ew i s that the Wis consin felony of thi rd-degr ee sexual ass ault, W I S

. S TAT . § 940.225(3), i s not an aggr avat ed felony becaus e nei ther mo de of commi tting the offense—noncons ensualsexual intercour se nor nonconsens ual sexual c ontact—is catego ric ally a “crim e of violence” as that t erm is defined in 18 U.S.C. § 16(b). An offense i s a cri me of violenc e under § 16(b) i f i t is a 5 felony that, “by i ts nature, involves a subs tantial ri sk that physic al force agains t the person or proper ty o f another may be used i n the course of commi tting the offense.” 18 U.S.C. § 16(b). Hai ricdoes not dis pute that t hi rd-degr ee sexual ass ault i s a felony, but he maintai ns that i t does not present a subs tantial ri sk that physic al force wi ll be us ed by the perpet rat or
. We conclu de that t he Wi scons i n offens e of third-degree sexual assau lt is a cri me of violence. Three ci rcui ts have r eferr ed to lack o f cons ent as the “to uch stone” for deter mining whether a sexual crim e i nvolv es a substanti al ris k that physi cal force wi ll be us ed. See Agui lar v. Att ’y Gen. of U.S

. , 663 F.3d 692, 701–04 (3d Ci r. 2011) (conclu di ng that sexual in ter course wi thout consent is a cri me of violenc e); Zaidi v. Ashcroft, 374 F.3d 357, 360–61 (5th Ci r. 2004) (conclu di ng that sex ual battery , defined as intentional touchi ng, mauling, or feeling of anot her per son’s body parts wi thout consent, is a cri me of violence) ; Sutherl and v. Reno , 228 F.3d 171, 175–77 (2d Ci r. 2000) (Sot omayo r, J.) (conc luding that indec ent assaul t and batter y, defi ned as i mmodest, i mmoral, or i mproper touchi ng wi thout consent, is a cri me of violenc e). The Wi scons i n offens e of thi rd-degr ee sexual ass ault has as an element the nonconsent of the victi m. The offense
Only § 16(b) i s at i ssu e here. The part i es and the BIA agr ee that t hi rd-degr ee 5 sexual ass ault i s not a crim e of violence un der § 16(a) becau se the offense does not i nclu de as an elemen t the use, att empted use, or thr eatened use of physi cal force agai nst the person o r pr oper ty o f another.No. 13-2256 Page 5

i s therefor e a cri me of violenc e becaus e a nonconsenting victi m wi ll most li kely r esi st the uninvited sexual c ontact, creat i ng a subs tantial ri sk that t he perpetr ator wi ll us e force inor der t o complete t he sexual act. See Agui lar , 663 F.3d at 701; Zaidi, 347 F.3d at 361; Sutherl and, 228 F.3d at 177. Co mmi tting a nonconsens ual sexual ac t thus resembles a burglary , see Aguil ar

, 663 F.3d at 701; Sutherl and, 228 F.3d at 176–77, whi ch, “b y its nature, involves a subs tantial ri sk that t he burglar wi ll us e force agains t a v i cti m in completi ng the crime,” Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).

Hai ricnext ar gues that it was i mproper for t he Board t o assum e that t hi rd-degr ee sexual ass ault i s not catego ric ally a crim e of violence and to li mi t its an alysi s to only the part o f the statute t hat he was c onvicted of vi olating (s exual i ntercour se wi thout consent). Bu t whether t he offense i s examined under the catego ric al or mo di fi ed catego ric al approach i s i rr elevant her e becaus e both ways of commi tting the offense (sexual c ontact and sexual i ntercour se) have nonconsen t as an element. Even assu ming that t he Board should have employed t he pure catego ric al approach and looke d at both modes of commi tting the offense, i t would have re ached the sam e conclu si on.
Fin ally, Hai ricarg ues that he was not conv i cted of an aggr avat ed felony becaus e hi s term of im pris onment was les s than the one year required by 8 U.S.C. § 1101(a)( 43)(F). Bu t Hai ric ’s su spended three-year sentence—inexpli cably i gnor ed by the IJ, the Bo ard, and both part i es—counts as a ter m of i mpri sonment. See 8 U.S.C. § 1101(a)(48)(B) ; United S tat es v. Palomino-Rivera , 258 F.3d 656, 660 n.5 (7th Ci r. 2001); United S tat es v. Echavarria-Escob ar , 270 F.3d 1265, 1270 (9th Cir. 2001).
Accordi ngly, t he petiti on for r eview i s DENIED

.