Jaime A. De Leon Castellanos v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-2807
JAIME A. DE LEON CASTELLANOS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petition to Review an Order of the
Board of Immigration Appeals.
No. A090-925-315
ARGUED NOVEMBER 10, 2010—DECIDED JULY 20, 2011
Before CUDAHY, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Jaime De Leon Castellanos, a
lawful permanent resident, asks this court to review the
denial of his application for cancellation of removal. At
issue is whether his second conviction for domestic
battery qualifies as a “crime of violence” under 18 U.S.C.
§ 16(a) and thus is an aggravated felony prohibiting him
from applying for cancellation. We hold that it is and
therefore deny the petition.

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2 No. 06-2807
I. Background
The facts are straightforward: In 1981 De Leon left
Guatemala for the United States and in 1988 became a
lawful permanent resident (the Department of Homeland
Security pegs the date as 1990). Since coming to the
United States, De Leon has worked several jobs, married,
and fathered three children. He also twice pleaded guilty
to domestic battery. In Illinois domestic battery is com-
mitted by (1) intentionally causing bodily harm to any
family or household member, 720 ILL. COMP. STAT. 5/12-
3.2(a)(1); or (2) making physical contact of an insulting
or provoking nature with any family or household mem-
ber, id. § 5/12-3.2(a)(2). In 2004 De Leon pleaded guilty
to the “insulting or provoking contact” form of domestic
battery after he grabbed his wife by the neck, held a knife
to her, struck her, and prevented her from calling the
police. A year later in 2005, De Leon struck his wife and
was convicted of a second domestic-battery charge, this
time for causing bodily harm to a family member in
violation of section 5/12-3.2(a)(1). Because of De Leon’s
prior domestic-battery conviction, this misdemeanor
was upgraded to a felony, and he was sentenced to one
year in prison. See id. § 5/12-3.2(b).
The Department of Homeland Security initiated removal
(deportation) proceedings charging that De Leon was
removable on a number of grounds: He had been
convicted of two crimes involving moral turpitude, see
8 U.S.C. § 1227(a)(2)(A)(ii); he had committed an aggra-
vated felony in the form of a crime of violence, see id.
§ 1227(a)(2)(A)(iii); and he had committed a crime of

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No. 06-2807 3
domestic violence, see id. § 1227(a)(2)(E)(i). De Leon
denied that he committed an aggravated felony or a
crime of domestic violence, but conceded that he was
removable as an alien convicted of two crimes involving
moral turpitude. Although this concession effectively
rendered De Leon removable, an otherwise removable
alien who has been admitted as a permanent resident, as
De Leon has, may seek cancellation of removal if the
alien can show, among other things, that he has never
been convicted of an aggravated felony. Id. § 1229b(a)(3).
De Leon accordingly sought cancellation of removal
because, in his view, he had not been not convicted of
an aggravated felony.
An Immigration Judge disagreed, concluding that
De Leon did not qualify for cancellation of removal
because his 2005 domestic-battery conviction for inten-
tionally causing bodily harm to his wife was a crime of
violence under either 18 U.S.C. § 16(a) or (b) and there-
fore an aggravated felony. See 8 U.S.C. § 1101(a)(43)(f).
The Board of Immigration Appeals agreed, but on a
more limited basis; the Board determined that De Leon’s
conviction was a crime of violence under 18 U.S.C. § 16(a)
because the crime involved “an offense that has as an
element the use, attempted use, or threatened use of
physical force against the person or property of another.”
This question is the sole point of contention on appeal.
II. Discussion
The Board did not adopt the Immigration Judge’s
findings, and thus, we review only the Board’s determina-

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4 No. 06-2807
tion that a conviction for domestic battery under
720 Ill. Comp. Stat. 5/12-3.2(a)(1) for intentionally
causing bodily harm to a family member is a crime of
violence under 18 U.S.C. § 16(a). See Vahora v. Holder, 626
F.3d 907, 912 (7th Cir. 2010). We have jurisdiction
because the issue is a pure question of law. See 8 U.S.C.
§ 1252(a)(2)(D); Alvarado-Fonseca v. Holder, 631 F.3d 385,
389 (7th Cir. 2011).
De Leon argues that his 2005 domestic-battery convic-
tion for causing bodily harm to a family member is not
a crime of violence under 18 U.S.C. § 16(a) because the
“use, attempted use, or threatened use of physical force”
is not an element of this crime. To determine whether
an offense qualifies as a crime of violence, we look to the
statutory definition, not the specific facts of the crime.
See Sykes v. United States, 131 S. Ct. 2267, 2272 (2011);
James v. United States, 550 U.S. 192, 202 (2007). We have
twice addressed whether domestic battery under sec-
tion 5/12-3.2(a)(1) is a crime of violence under 18 U.S.C.
§ 16(a) and have held that it is. See LaGuerre v. Mukasey,
526 F.3d 1037, 1039 (7th Cir. 2008); United States v. Upton,
512 F.3d 394, 405 (7th Cir. 2008). In LaGuerre and Upton,
we explained that section 5/12-3.2(a)(1) “unambiguously
requires proving ‘physical force’: to sustain [a] convic-
tion for domestic battery, the [S]tate had to prove that
[the defendant] caused bodily harm, which means that
it had as an element the use of physical force against
the person of another.” Upton, 512 F.3d at 45 (internal
quotation marks and alterations omitted); accord
LaGuerre, 526 F.3d at 1039. Similarly, we have recognized
that causing bodily harm to a police officer (aggravated

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No. 06-2807 5
battery, see 720 ILL. COMP. STAT. 5/12-4(b)(18)) is a crime
of violence under U.S.S.G. § 2L1.2, which contains a
similar definition of a crime of violence as that under
18 U.S.C. § 16. United States v. Rodriguez-Gomez, 608
F.3d 969, 973-74 (7th Cir. 2010).
Is there cause to revisit these holdings? Challenging
LaGuerre and Upton, as De Leon did in the first round
of briefing, does not get very far in the face of stare decisis.
[I]f the fact that a court considers one of its previous
decisions to be incorrect is a sufficient ground for
overruling it, then stare decisis is out the window,
because no doctrine of deference to precedent is
needed to induce a court to follow the precedents
that it agrees with; a court has no incentive to over-
rule them even if it is completely free to do so.
Tate v. Showboat Marina Casino P’ship, 431 F.3d 580, 582-
83 (7th Cir. 2005); see United States v. Mitchell, 635 F.3d 990,
993 (7th Cir. 2011). Stare decisis “imparts authority to
a decision, depending on the court that rendered it,
merely by virtue of the authority of the rendering court
and independently of the quality of its reasoning,” and
“the mere existence of certain decisions becomes a
reason for adhering to their holdings in subsequent
cases.” Tate, 431 F.3d at 583 (internal quotation marks
omitted); accord United States v. Reyes-Hernandez, 624
F.3d 405, 412 (7th Cir. 2010).
Accordingly, it would take compelling circumstances,
or an intervening on-point Supreme Court decision, to
disturb LaGuerre and Upton. See United States v. Capler, 636

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6 No. 06-2807
F.3d 321, 324 (7th Cir. 2011); Glaser v. Wound Care Consul-
tants, Inc., 570 F.3d 907, 915 (7th Cir. 2009). At oral argu-
ment we ordered supplemental briefing in light of the
Supreme Court’s decision in Johnson v. United States, 130
S. Ct. 1265 (2010), which held that a form of battery
defined as intentionally touching another against his
will is not a crime of violence under 18 U.S.C.
§ 924(e)(2)(B). The definition of a crime of violence
in § 924(e) mirrors the language found in 18 U.S.C. § 16(a),
and the statutes are interpreted in the same way. See
United States v. Gear, 577 F.3d 810, 812 (7th Cir. 2009).
In supplemental briefing De Leon disclaims any
reliance on Johnson, but we nevertheless take this op-
portunity to consider whether that decision requires us
to reconsider LaGuerre and Upton; if Johnson controls, we
are obviously bound to follow it. See, e.g., Rodriguez
de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989). We conclude that Johnson does not undermine
LaGuerre and Upton.
In Johnson the Supreme Court interpreted a Florida
statute that defined battery as “actually and intention-
ally” touching another against his will. See FLA. STAT.
§ 784.03(1)(a). The Court held that this form of battery was
not categorically a crime of violence because it does not
have as an element the use of physical force. Johnson, 130
S. Ct. at 1270. Johnson echoed our position in Flores v.
Ashcroft, 350 F.3d 666, 669-70 (7th Cir. 2003), which held
that battery under Indiana law for “touch[ing] . . . in a
rude, insolent, or angry manner,” IND. CODE § 35-42-2-1,
was not a crime of violence under 18 U.S.C. § 16(a) because

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No. 06-2807 7
a person could be convicted based on slight offensive
physical contact, such as tossing a paper airplane that
inflicts a paper cut or a snowball that causes minor pain.
This, we said, “is hard to describe . . . as ‘violence.’ ” Flores,
350 F.3d at 670.
Flores came before both LaGuerre and Upton, and yet
it did not mandate a different outcome in those cases.
That is because Flores—and Johnson for that matter—
addressed a form of battery akin to physical contact
of an insulting or provoking nature under Illinois law.
See 720 ILL. COMP. STAT. § 5/12.3(a)(2). Battery under
section 5/12.3(a)(2) may be offensive, but it does not
require violent physical force as an element. See United
States v. Aviles-Solarzano, 623 F.3d 470, 472 (7th Cir. 2010);
United States v. Evans, 576 F.3d 766, 767-68 (7th Cir.
2009); Garcia-Meza v. Mukasey, 516 F.3d 535, 537 (7th
Cir. 2008). For instance, one common way to violate
section 5/12.3(a)(2) is by spitting on another. See Alcorn v.
Mitchell, 63 Ill. 553 (Ill. 1872); People v. Wrencher, 929
N.E.2d 1124, 1135-36 (Ill. App. Ct. 2009) (spitting on
police officer was physical contact of an insulting or
provoking nature).
Here, in contrast, De Leon’s relevant conviction was
for intentionally causing bodily harm to his wife in viola-
tion of section 5/12.3(a)(1). Battery causing bodily harm
entails physical force because “some sort of physical pain
or damage to the body, like lacerations, bruises or abra-
sions, whether temporary or permanent, is required” to
convict. People v. Mays, 437 N.E.2d 633, 635-36 (Ill. 1982);
see People v. Kyles, 708 N.E.2d 391, 401 (Ill. App. Ct. 1998).

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8 No. 06-2807
The degree of injury has “a logical relation to the ‘use
of physical force’ under § 16(a).” Flores, 350 F.3d at 669.
Johnson held that so long as the force involved is “capable
of causing physical pain or injury to another person,”—as
battery under section 5/12.3(a)(1) requires—the “physical
force” requirement of the crime-of-violence definition
is satisfied. 130 S. Ct. at 1271. Intent is an element of
battery as well. People v. Phillips, 911 N.E.2d 462, 478 (Ill.
App. Ct. 2009); People v. Lovelace, 622 N.E.2d 859, 867
(Ill. App. Ct. 1993). In Flores we recognized that crimes
of violence are those “intended to cause bodily injury.”
350 F.3d at 672; see also Leocal v. Ashcroft, 543 U.S. 1, 9-10
(2004) (stating that to “use” physical force under § 16(a)
requires intent higher than negligent or accidental con-
duct).
De Leon argues that because bodily harm can result from
“ ‘intellectual force’ like guile or deception,” a bodily
harm battery under section 5/12.3(a)(1) does not have as
an element the use, threat, or attempted use of physical
force. De Leon notes that a person could trick another
into drinking poison and be found guilty of battery for
causing bodily harm. Illinois courts have not had to
consider whether guile or deception resulting in bodily
harm is the equivalent of force; we note, however, that
Illinois punishes poisoning in a separate statute. See 720
ILL. COMP. STAT. 5/12-4(c). Other courts have said that
this kind of battery entails force:
[A] battery is committed where one person ad-
ministers a drug to another by inducing the other
voluntarily to take the drug in the belief that he is

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No. 06-2807 9
taking some other substance, or by placing the
drug in some otherwise harmless substance and
inducing the other to take such substance without
knowledge that it contains a drug. The deceit prac-
ticed in such a case by means of which the person
is induced to take the drug, is a fraud on his will
equivalent to force.
Smith v. Smith, 9 S.E.2d 584, 589-90 (S.C. 1940); see also
Commonwealth v. Gregory, 1 A.2d 501, 505 (Pa. Super. Ct.
1938) (tricking patient to consent to medical examination
was fraud on the will of the victim equivalent to
force); Carr v. State, 34 N.E. 533, 534 (Ind. 1893) (in-
ducing victim to take explosives by misrepresenting
their dangerousness is battery as defendant sets in
motion that which causes injury); Commonwealth v.
Stratton, 114 Mass. 303, 305-06 (1873) (same). We see no
reason to think Illinois would treat the matter differently.
Accordingly, Johnson does not call into question our
earlier decisions in LaGuerre and Upton, and we follow
them here. De Leon’s conviction of domestic battery for
causing bodily harm to his wife is a crime of violence,
and he is therefore ineligible for cancellation of removal.
The petition for review is DENIED.
7-20-11

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