UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1403

JASON THURL WINSTON,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals

Submitted: July 8, 2011 Decided: July 18, 2011

Before WILKINSON, DAVIS, and WYNN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Jason Thurl Winston, Petitioner Pro Se. Rosanne Perry, Trial 

Attorney, Tyrone Sojourner, Office of Immigration Litigation, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Respondent.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Jason Thurl Winston, a native and citizen of Dominica, 

petitions for review of an order of the Board of Immigration 

Appeals (“Board”) dismissing his appeal from the immigration 

judge’s order finding him removable for committing a crime of 

domestic violence and for violating an order of protection. See

8 U.S.C. § 1227(a)(2)(E)(i), (ii) (2006). We deny the petition 

for review.

Winston entered the United States on a K-3 

nonimmigrant visa on March 14, 2010. On May 10, 2010, he pled 

guilty to assault and battery under Va. Code Ann. § 18.2–57.2, 

following an altercation with his wife in which he grabbed her, 

attempted to choke her, and punched a wall. On the same day, he 

pled guilty to violation of a protective order under Va. Code 

Ann. § 16.1-253.2 for sending his wife a letter from prison in 

which he told her that he loved her and asked her to drop the 

protective order and post bond for him. In removal proceedings, 

the immigration judge and the Board found that the Government 

properly met its burden of establishing by clear and convincing 

evidence that Winston was removable as charged. See 8 U.S.C. 

§ 1229a(c)(3)(A) (2006). Winston did not seek relief from 

removability. 

We have reviewed the record and find that Winston’s 

conviction for assault and battery against a family member was a 
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crime of domestic violence. Under 8 U.S.C. § 1227(a)(2)(E)(i), 

an alien who commits a crime of domestic violence is deportable. 

A “crime of domestic violence” is any crime of violence, as 

defined by 18 U.S.C. § 16, committed against a specified group 

of persons, including a current spouse. A “crime of violence” 

is defined in § 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.”

Winston’s conviction for assault and battery against 

his wife under Va. Code Ann. § 18.2–57.2 is not categorically a 

“crime of violence” because Virginia’s common law conception of 

battery includes any offensive touching, not only the use of 

physical force. United States v. White, 606 F.3d 144, 153-55 

(4th Cir. 2010). However, where the elements of a crime are 

ambiguous, this Court uses a “modified categorical approach” and 

examines the charging documents to determine whether the crime 

was violent. United States v. Kirksey, 138 F.3d 120, 124 (4th 

Cir. 1998). In this case, the immigration judge examined the 

charging documents and found that Winston pled guilty to 

grabbing his wife during an argument, attempting to choke her,

and punching a wall. This meets the definition of a “crime of 

violence,” and thus Winston’s guilty plea renders him 

deportable.
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The Board of Immigration Appeals further found Winston 

deportable on an alternative ground, namely for violating “the 

portion of a protection order that involves protection against 

credible threats of violence, repeated harassment, or bodily 

injury to the person or persons for whom the protection order 

was issued[.]” See 8 U.S.C. § 1227(a)(2)(E)(ii). Winston 

argues that his sending his wife a letter from jail in which he 

told her that he loved her and asked her to drop the protective 

order and post bond for him did not constitute either a threat 

of violence, repeated harassment or bodily injury. The 

Government responds that even if Winston’s actions did not rise 

to that level, the no-contact portion of the protective order 

“involves protection against” violence and harassment, and §

1227(a)(2)(E)(ii) does not require that the violation actually 

constitute violence or harassment. See Alanis-Alvarado v. 

Holder, 558 F.3d 833, 839-40 (9th Cir. 2009). This Circuit has 

not decided this issue, and does not do so here, because

Winston’s conviction for assault and battery against his wife is 

sufficient to find him deportable under 8 U.S.C. §

1227(a)(2)(E)(i).

Appellant also argues in his brief that his courtappointed attorney did not advise him of possible immigration 

consequences to his pleading guilty to the charges of assault 

and battery and violation of the protective order. The Sixth 
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Amendment right to effective assistance of counsel includes the 

right to be informed of potential immigration consequences to a 

guilty plea. Padilla v. Kentucky, 130 S.Ct. 1473, 1486 (2010). 

However, if Appellant wishes to make a case based on ineffective 

assistance of counsel, he must file for post-conviction relief 

in his state criminal case. Ugwu v. Gonzalez, 242 Fed. App’x. 

917, 918 (4th Cir. 2007) (citing Abiodun v. Gonzales, 461 F.3d 

1210, 1217 (10th Cir. 2006); Olivera-Garcia v. INS, 328 F.3d 

1083, 1087 (9th Cir. 2003); Trench v. INS, 783 F.2d 181, 184 

(10th Cir. 1986); Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir.

1981)). “[T]he immigration judge and the Board cannot go behind 

the criminal judgment and consider an alien's collateral attack 

on his conviction”—and neither can we. Id.

Accordingly, we deny the petition for review. We deny 

Winston’s motion to strike the Attorney General’s brief. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

PETITION DENIED