FRANCISCO-ALONZO

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Matter of Mario FRANCISCO-ALONZO, Respondent
Decided June 2, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In determining whether a conviction is for an aggravated felony crime of violence
under 18 U.S.C. § 16(b) (2012), the proper inquiry is whether the conduct encompassed
by the elements of the offense presents a substantial risk that physical force may be used
in the course of committing the offense in the “ordinary case.”
FOR RESPONDENT: Juan C. Gomez, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Andrew Brown, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.
PAULEY, Board Member:
In a decision dated October 4, 2010, an Immigration Judge determined
that the respondent was not removable as an alien convicted of an
aggravated felony under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), and granted a motion
to terminate removal proceedings. On October 27, 2011, we sustained an
appeal by the Department of Homeland Security (“DHS”) and remanded
the record to allow the respondent to apply for relief from removal.
On remand, the respondent filed two motions to terminate, which the
Immigration Judge denied. However, in a decision dated April 2, 2014, she
granted the respondent’s motion to reconsider the denial of the motions,
agreed with his arguments, and ordered the proceedings terminated.
Because of our prior remand order, the Immigration Judge certified the
case for our review. The DHS has challenged the Immigration Judge’s
termination of proceedings, and the respondent has requested summary
affirmance of her decision. The Immigration Judge’s decision will be
vacated and the record will be remanded for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala and a
lawful permanent resident of the United States. He admits that on

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February 10, 2009, he was convicted of felony battery in violation of
section 784.041(1) of the Florida Statutes, for which he was sentenced to a
term of imprisonment of 24 months.1 Based on this conviction, the DHS
issued a notice to appear charging that the respondent is removable as
an alien convicted of an aggravated felony—specifically, a “crime of
violence” for which the term of imprisonment is at least 1 year, as defined
in section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2006).2
In her initial decision, the Immigration Judge granted the respondent’s
motion to terminate proceedings, finding that his felony battery conviction
was not categorically for a crime of violence under 18 U.S.C. § 16(b)
(2006).3 We reversed, concluding that because the Florida felony battery
statute required that any intentional touching or striking must cause “great
bodily harm, permanent disability, or permanent disfigurement,” to commit
the offense in the ordinary case, the assailant would necessarily use
sufficient physical force to meet the definition of a “crime of violence”
under 18 U.S.C. § 16(b).
In so ruling, we rejected the Immigration Judge’s consideration of
the “eggshell plaintiff” circumstance, in which a relatively mild touching
causes great bodily harm to the victim because of his rare fragility. We
referred to our decision in Matter of Ramon Martinez, 25 I&N Dec. 571
(BIA 2011), which cited James v. United States, 550 U.S. 192, 208 (2007),
for the proposition that, in § 16(b) cases, we look to the risk of violent force
that is present in the “ordinary case” arising under the statute of conviction.
After reviewing Florida case law on felony battery, we determined that the
1 Section 784.041(1) of the Florida Statutes provides, as follows:
A person commits felony battery if he or she:
(a) Actually and intentionally touches or strikes another person against the will of
the other; and
(b) Causes great bodily harm, permanent disability, or permanent disfigurement.
2 For purposes of section 101(a)(43)(F) of the Act, a “crime of violence” is defined in
18 U.S.C. § 16 (2012) as
(a) an offense that has as an element the use, attempted use, or threatened use of
physical force against 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.
3 The Immigration Judge found that the DHS abandoned any argument that the offense
was a crime of violence under 18 U.S.C. § 16(a).

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“ordinary” prosecution of a battery offense did not involve an eggshell
victim.
The Immigration Judge subsequently granted the respondent’s motion
to reconsider because of the intervening issuance of the United States
Supreme Court’s decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).
She concluded that in determining whether an offense is an aggravated
felony under the categorical approach, the Court had moved from
employing the “ordinary case” analysis to the “least culpable conduct” test.
Applying this interpretation of Moncrieffe, the Immigration Judge found
that the “least culpable conduct” prosecuted as a felony battery in Florida
could be a mere touching where the requisite harm resulted because, for
example, the victim had a “preexisting health condition.”
II. ANALYSIS
The issue before us is whether, in determining if the offense of felony
battery in violation of section 784.041(1) of the Florida Statutes is a
categorical crime of violence under 18 U.S.C. § 16(b), we should employ
the “ordinary case” analysis of James or the “least culpable conduct” test of
Moncrieffe.4 We review this question of law under a de novo standard.
8 C.F.R. § 1003.1(d)(3)(ii) (2014).
A. Categorical Approach
“To determine whether a state law offense qualifies as a crime of
violence for immigration purposes, we employ a categorical approach,
looking to the ‘elements and the nature of the offense of conviction, rather
than to the particular facts relating to [the alien’s] crime.’” Cole v. U.S.
Att’y Gen., 712 F.3d 517, 527 (11th Cir. 2014) (quoting Leocal v. Ashcroft,
543 U.S. 1, 7 (2004)); see also Dixon v. U.S. Att’y Gen., 768 F.3d 1339,
1343 (11th Cir. 2014); Matter of U. Singh, 25 I&N Dec. 670, 677−78
(BIA 2012). In applying the categorical approach, we must therefore
compare the language of the Florida felony battery statute with the
definition of a “crime of violence” under 18 U.S.C. § 16.
In determining whether a State statute is a categorical match to § 16(a)
or other similar “elements-based” offenses in the Act, we consider whether
4 It is undisputed that we may use only the categorical approach in this case and that the
modified categorical approach is inapplicable because the Florida felony battery statute is
not divisible. See United States v. Eady, 591 F. App’x 711, 720 (11th Cir. 2014) (stating
that the modified categorical approach cannot be applied to felony battery under section
784.041(1) because it “has a single, indivisible set of elements”).

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the elements of the statute of conviction are the same or narrower than
those of the generic offense. Descamps v. United States, 133 S. Ct. 2276,
2281 (2013). More precisely, with regard to § 16(a), the question is
whether the “use, attempted use, or threatened use of physical force against
the person or property of another” is an element of the State offense.
See, e.g., Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1336 (11th Cir. 2011);
see also United States v. Estrella, 758 F.3d 1239, 1244−45 (11th Cir. 2014)
(stating that when determining whether a State statute qualifies under the
“elements-based” definition of a “crime of violence” in the U.S. Sentencing
Guidelines, the central question is “whether the crime of conviction ‘has’
the element” of the generic offense). In deciding whether the State statute
creates a crime that lies outside of the generic offense, we consider whether
there is “a realistic probability” that the State would apply its statute
to conduct that falls outside the generic definition of the offense.
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); see also Ramos
v. U.S. Att’y Gen., 709 F.3d 1066, 1072 (11th Cir. 2013). To demonstrate a
“realistic probability,” the offender may point to his own case, if applicable,
or to “other cases” in which the State court did, in fact, apply the statute in
the “special (nongeneric) manner for which he argues.” Gonzales
v. Duenas-Alvarez, 549 U.S. at 193.
However, we have applied a different approach in considering whether a
State offense qualifies as a crime of violence under § 16(b). Matter of
Ramon Martinez, 25 I&N Dec. at 574. In analyzing such cases, we have
looked to the Supreme Court’s guidance in Leocal v. Ashcroft, 543 U.S.
at 10, where the Court instructed that § 16(b) covers offenses that involve a
person acting in reckless disregard of the risk that physical force might be
used against another. This reckless disregard refers not to “the general
conduct or to the possibility that harm will result from a person’s conduct,
but to the risk that the use of physical force against another might be
required in committing a crime.” Id.; see also Dixon v. U.S. Att’y Gen., 768
F.3d at 1344. Moreover, the Court stated that in considering whether an
offense qualifies as a crime of violence “by its nature” under § 16(b), we
should focus on the “ordinary” meaning of the term “crime of violence.”
Leocal v. Ashcroft, 543 U.S. at 11 (stating that the “ordinary meaning of
this term, combined with § 16’s emphasis on the use of physical force
against another person (or the risk of having to use such force in
committing a crime), suggests a category of violent, active crimes”);
see also Matter of Ramon Martinez, 25 I&N Dec. at 574.
We have also relied on James v. United States, 550 U.S. 192, where the
Court compared a State criminal offense under Florida law to a provision
similar to § 16(b) in the Armed Career Criminal Act at 18 U.S.C.
§ 924(e)(2)(B) (2006), which relates to convictions for a “violent felony.”

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See, e.g., Matter of U. Singh, 25 I&N Dec. at 677−78; see also Johnson
v. United States, 559 U.S. 133, 140 (2010) (recognizing the similarity in the
two statutes).5 In its “residual clause,” § 924(e)(2)(B)(ii) includes in the
definition of a “violent felony” any felony that “otherwise involves conduct
that presents a serious potential risk of physical injury to another.”
In concluding that the Florida offense of attempted burglary qualified as
a “violent felony,” the Court noted in James that the residual clause “speaks
in terms of a ‘potential risk,’” which involves “inherently probabilistic
concepts.” James v. United States, 550 U.S. at 207 (emphasis added).
Thus, the Court held that it is not necessary to determine whether all
prosecutions of the State crime must create a risk of injury to others in
order for the State statute to be a categorical match with § 924(e)(2)(B)(ii).
See id. at 208 (stating that the categorical approach does not require that
“every conceivable factual offense covered by a statute must necessarily
present a serious potential risk of injury”). Instead, “the proper inquiry is
whether the conduct encompassed by the elements of the [State] offense, in
the ordinary case, presents a serious potential risk of injury to another.” Id.
(emphasis added).
Because § 16(b) defines the term “crime of violence” in “probabilistic”
terms similar to the residual clause in § 924(e)(2)(B)(ii), we have applied
James in § 16(b) cases and considered “the risk of violent force that is
present in the ‘ordinary’ case arising under the statute of conviction.”
Matter of Ramon Martinez, 25 I&N Dec. at 574; see also Matter of
Chavez-Alvarez, 26 I&N Dec. 274, 282 (BIA 2014), rev’d on other
5 The term “violent felony” is defined in 18 U.S.C. § 924(e)(2)(B) in pertinent part as
any crime . . . that—
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another . . . .
(Emphasis added.) Noting that § 924(e)(2)(B)(i) is “very similar” to § 16(a), the
Supreme Court stated that “in the context of a statutory definition of ‘violent felony,’ the
phrase ‘physical force’ means violent force—that is, force capable of causing physical
pain or injury to another person.” Johnson v. United States, 559 U.S. at 140. The Court
held that battery under section 784.03 of the Florida Statutes―which is similar to section
784.041(1) but does not require “great” bodily harm―is not a “violent felony” under
§ 924(e)(2)(B)(i). However, the Court did not decide whether the offense “involves
conduct that presents a serious potential risk of physical injury to another” within the
meaning of the residual clause of § 924(e)(2)(B)(ii), which is similar to § 16(b) in terms
of the “risk” involved.

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grounds, Chavez-Alvarez v. Att’y Gen. of U.S., 783 F.3d 478 (3d Cir. 2015);
Matter of U. Singh, 25 I&N Dec. at 678.
Subsequent to James, the Supreme Court restated the method for
determining whether a State offense qualifies as a predicate
“element-based” aggravated felony under the categorical approach, namely,
that when comparing a State offense to a generic Federal offense, we must
examine “what the state conviction necessarily involved.” Moncrieffe
v. Holder, 133 S. Ct. at 1684 (citing Shepard v. United States, 544 U.S. 13,
24 (2005)). In so doing, the Court also ruled that it must presume that the
conviction rested on nothing more than the least of the acts criminalized
and then determine whether those acts are encompassed by the generic
Federal offense. Id. (citing Johnson v. United States, 559 U.S. at 137).
Moncrieffe has therefore changed how we consider the State offense in both
the context of the “elements-based” Federal offenses and the broadly
descriptive class of offenses in the Act, such as “sexual abuse of a minor”
under section 101(a)(43)(A). In cases involving such offenses, we must
now “look only to the minimum conduct that has a realistic probability of
being prosecuted” under the State statute. Matter of Esquivel-Quintana,
26 I&N Dec. 469, 472 (BIA 2015) (emphasis added) (citing Moncrieffe
v. Holder, 133 S. Ct. at 1684−85).
The question presented by the Immigration Judge’s decision in this case
is whether the “ordinary case” analysis in James, as applied to risk-based
offenses, has been discarded or superseded by Moncrieffe. We conclude
that it has not. Nothing in Moncrieffe purports to cast doubt on James,
much less overrule it. See Agostini v. Felton, 521 U.S. 203, 237 (1997)
(stating that lower courts should not conclude that more recent cases
have overruled an earlier precedent by implication); see also Descamps
v. United States, 133 S. Ct. at 2293 n.6 (expressing no view on whether the
State conviction qualified as a predicate offense under the “residual clause”
of § 924(e)(2)(B)(ii)).
The United States Court of Appeals for the Eleventh Circuit, in whose
jurisdiction this case arises, continues to apply the “ordinary case” analysis
in cases where the Federal offense (or category of offense) is defined in
probabilistic terms. See United States v. Keelan, No. 13-11878, 2015 WL
2215388, at *4 (11th Cir. May 13, 2015) (noting that “[a]ll other circuits to
have examined the issue have held the proper inquiry under § 16(b) is
whether the conduct encompassed by the elements of the offense raises a
substantial risk the defendant may use physical force in the ‘ordinary case’,
even though, at the margin, some violations of the statute may not raise
such a risk”); United States v. Travis, 747 F.3d 1312, 1314−15 (11th Cir.
2014); United States v. Eady, 591 F. App’x 711, 720 (11th Cir. 2014);
see also United States v. Avila, 770 F.3d 1100, 1107 (4th Cir. 2014);

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United States v. Fish, 758 F.3d 1, 10 (1st Cir. 2014); Rodriguez-Castellon
v. Holder, 733 F.3d 847, 854 (9th Cir. 2013). We therefore find it
appropriate to continue to employ the James “ordinary case” analysis in
considering whether a State offense is categorically a crime of violence
under § 16(b).
B. Application to Section 784.041(1) of the Florida Statutes
Under section 784.041(1) of the Florida Statutes a person commits
felony battery if he “[a]ctually and intentionally touches or strikes another
person against the will of the other” and in committing that act “[c]auses
great bodily harm, permanent disability, or permanent disfigurement.” We
conclude that such conduct, “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).
Our review of Florida case law reveals that in the “ordinary case,”
felony battery under section 784.041(1) is a “violent” crime because the
conduct required by the statute involves a substantial risk of physical
force being used in the course of committing the offense. Leocal
v. United States, 543 U.S. at 11. For example, in T.S. v. State, 965 So. 2d
1288 (Fla. Dist. Ct. App. 2007), the court agreed that there was sufficient
evidence to support a conviction where the perpetrator punched a
co-worker in the eye, causing her to suffer a fracture of the eye socket that
required reparative surgery. See also, e.g., Lewis v. State, 817 So. 2d 933
(Fla. Dist. Ct. App. 2002) (upholding the conviction where a punch to the
victim’s face required stitches and left a scar); Gaines v. State, 800 So. 2d
732 (Fla. Dist. Ct. App. 2001) (finding sufficient evidence for a felony
battery conviction where the victim was knocked to the ground and
sustained injuries that included a “busted” lip and loose tooth).
The Eleventh Circuit has determined that Florida felony battery under
section 784.041(1) meets the “risk of injury” requirement of similar Federal
statutes. See United States v. Eady, 591 F. App’x at 719−20 (ruling that
felony battery met the definition of a violent felony under the residual
clause of § 924(e)(2)(B)(ii)); United States v. Eugene, 423 F. App’x 908,
911 (11th Cir. 2011) (finding that felony battery was a crime of violence
under section 4B1.2(a) of the U.S. Sentencing Guidelines). We recognize
that the risk of injury is not the same as the risk of the use of violent
physical force. Leocal v. United States, 543 U.S. at 10 n.7. However, in
both Eady and Eugene, the analysis went beyond the consequences of the
conduct to the conduct itself, namely, the force used. See United States
v. Eugene, 423 F. App’x at 911 (stating that it was “impossible for one to
be convicted of felony battery in Florida without having used ‘physical

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force’”). Furthermore, because the felony battery statute requires “not just
a ‘potential risk’ of physical injury, but also that the physical injury actually
occur,” such a battery will “ordinarily” be committed “by conduct that is
purposeful, violent, and aggressive.” United States v. Eady, 591 F. App’x
at 720.
The Immigration Judge concluded that “it appears that mere touching
not amounting to force could be punished” under section 784.041(1).
However, she did not provide examples of any such prosecutions in
Florida. Instead, she cited to another alien’s bond decision, which was not
entered into the record. That decision is not relevant because it addressed
whether the alien’s conviction under section 784.041(1) was for a crime of
violence under 18 U.S.C. § 16(a).
In any case, it does not support the conclusion that section 784.041(1)
could be successfully applied to conduct that would not constitute a § 16(b)
crime of violence in the “ordinary case.” The “realistic probability”
doctrine in Moncrieffe differs from the “ordinary case” analysis in James.
Therefore even if a successful “eggshell” victim prosecution for felony
battery would arguably satisfy the “realistic probability” test for § 16(a), the
existence of such rare prosecutions would not suffice to show that they
represented the “ordinary” prosecution for purposes of a “substantial risk”
analysis under § 16(b).
Like the Immigration Judge, we can imagine the possibility of a State
prosecution for felony battery where violent physical force was not
involved but the victim suffered great bodily injury because of a preexisting
physical condition or frailty. However, we are not aware of any such
successful prosecutions under this Florida statute. Nor are we convinced
that they would constitute the “ordinary case.”
III. CONCLUSION
We conclude that in determining whether a conviction is for an
aggravated felony crime of violence under 18 U.S.C. § 16(b), the proper
inquiry is whether the conduct encompassed by the elements of the offense
presents a substantial risk that physical force may be used in the course of
committing the offense in the “ordinary case.” Applying this “ordinary
case” analysis, we determine that felony battery under section 784.041(1)
of the Florida Statutes is categorically a crime of violence under § 16(b).
The respondent is therefore removable as charged. Accordingly, we will
remand the record for the Immigration Judge to designate a country of
removal and enter an appropriate order. Although the respondent does not
appear to have sought any relief from removal since our prior remand for
that purpose, the Immigration Judge may determine whether to give the

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respondent another opportunity to request any relief for which he may be
eligible.
ORDER: The Immigration Judge’s April 2, 2014, decision is vacated
and the removal proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.