Singh v. Ashcroft

• Decision Date: 21 October 2004
• Docket Number: No. 03-70217.,03-70217.
• Citation: 386 F.3d 1228
• Parties: Dalip SINGH, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

386 F.3d 1228

Dalip SINGH, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-70217.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 14, 2004.

Filed October 21, 2004.

Tilman Hasche and Dagmar Butte, Parker, Bush & Lane, Portland, OR, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division; Richard M. Evans, Assistant Director; and James A. Hunolt, Office of Immigration Litigation, United States Department of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-092-204.

Before: GRABER, GOULD, and BERZON, Circuit Judges.

GOULD, Circuit Judge:

Dalip Singh petitions for review of a decision of the Board of Immigration Appeals (BIA), affirming without opinion the order of the immigration judge (IJ). The IJ ordered Singh removed to India pursuant to 8 U.S.C. § 1227(a)(2)(E)(i) on the ground that Singh committed a "crime of domestic violence" when he committed the Oregon crime of harassment, Or.Rev.Stat. § 166.065(1)(a)(A), against his spouse. We must decide whether Oregon's harassment law, which outlaws intentionally harassing or annoying another person by subjecting that person to offensive physical contact, is a "crime of violence" as defined by 18 U.S.C. § 16(a). We have jurisdiction under 8 U.S.C. § 1252(a)(1). We grant Singh's petition and vacate the IJ's order of removal.

I

Singh, a native and citizen of India, entered the United States in 1990. In May of 1993, Singh was granted lawful permanent resident status based on his marriage to United States citizen Linda Olson. In June of 1998, Singh pleaded guilty to the Oregon state law crime of harassment, a class B misdemeanor. Or.Rev.Stat. § 166.065. As a result of that conviction, in February of 1999, the Immigration and Naturalization Service (INS)¹ issued to Singh a Notice to Appear, charging that Singh was subject to removal under 8 U.S.C. § 1227(a)(2)(E)(i) because he had been convicted of a "crime of domestic violence."

A hearing was held in December of 1999. The IJ held that Singh's conviction under Oregon's harassment law was a predicate offense for removal under federal law because, as the IJ saw it, the harassment statute "necessarily encompasses by its elements that requirement of force for a crime of violence under 18 U.S.C. § 16(a)." On December 20, 1999, the IJ ordered Singh removed to India. On December 17, 2002, the BIA affirmed without opinion the IJ's order, so "we review the IJ's opinion as the final agency decision." Tokatly v. Ashcroft, 371 F.3d 613, 618 (9th Cir.2004). Singh timely filed a petition for review on January 14, 2003, arguing that he was not removable under 8 U.S.C. § 1227(a)(2)(E)(i) because Oregon's harassment offense was not a "crime of violence" as defined by 18 U.S.C. § 16(a). Singh's theory was that the Oregon offense to which he pleaded guilty, and for which he was convicted, does not have as an element the use of physical force against the person of another.

II

We review de novo an IJ's interpretation of a statute. El Himri v. Ashcroft, 378 F.3d 932, 936 (9th Cir.2004). We reject the respondent Attorney General's assertion that we owe "substantial deference" to the Attorney General's interpretations of general state and federal criminal statutes.

Respondent cites the Supreme Court's decision in INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999), and our decision in Lara-Chacon, 345 F.3d 1148, 1151 (9th Cir.2003), to support its assertion that we owe "substantial deference" to the Attorney General's statutory interpretation. We reject this argument. Aguirre-Aguirre concerned an interpretation of a statute that the Attorney General was charged with administering and enforcing. 526 U.S. at 424, 119 S.Ct. 1439. Here, we address interpretations of a state and a federal criminal statute, and so Aguirre-Aguirre is inapposite. See United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (observing that Chevron deference applies only when "it appears that Congress delegated authority to the agency generally to make rules carrying the force of law"). Likewise, Lara-Chacon, while recognizing that the BIA's interpretation of immigration laws is entitled to deference, reviewed de novo the question of whether a conviction under state law is a deportable offense. 345 F.3d at 1151. We reject the respondent Attorney General's contention that an interpretation of state and federal criminal law by the respondent in the context of this case warrants deference. The Seventh Circuit has similarly so held. Flores v. Ashcroft, 350 F.3d 666, 671 (7th Cir.2003) ("[J]ust as courts do not defer to the Attorney General or United States Attorney when § 16 must be interpreted in a criminal prosecution, so there is no reason for deference when the same statute must be construed in a removal proceeding. Any delegation of interpretive authority runs to the Judicial Branch rather than the Executive Branch.").

III

Singh is removable for having committed a "crime of domestic violence" if he committed a "crime of violence" against a domestic partner. 8 U.S.C. § 1227(a)(2)(E)(i).² A "crime of violence" is defined by federal law 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).³ An element of a crime is "a constituent part of the offense which must be proved by the prosecution in every case to sustain a conviction under a given statute." United States v. Innie, 7 F.3d 840, 850 (9th Cir.1993) (quoting United States v. Sherbondy, 865 F.2d 996, 1010 (9th Cir.1988)) (internal quotation marks omitted). Thus, in assessing whether Singh is removable for committing a "crime of domestic violence," the dispositive issue becomes whether his state law conviction for harassment is a "crime of violence" under 18 U.S.C. § 16(a), when we look only at the necessary elements of the state law offense of conviction. See Innie, 7 F.3d at 850; cf. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).⁴

Singh pleaded guilty to the Oregon offense of harassment. The relevant portion of the harassment statute reads: "A person commits the crime of harassment if the person intentionally: Harasses or annoys another person by [s]ubjecting such other person to offensive physical contact." Or.Rev.Stat. § 166.065(1)(a)(A). Oregon's harassment law, by its terms, has three elements: (1) an intent to harass or annoy another person; (2) physical contact with that person, whether direct or indirect; and (3) offensiveness of the contact, judged by an objective standard. See State v. Keller, 40 Or.App. 143, 594 P.2d 1250, 1251-52 (1979) (en banc).

If Oregon's offense of harassment does not have "as an element the use, attempted use, or threatened use of physical force against the person or property of another," then the offense does not constitute a "crime of violence" within the meaning of the removal statute, and Singh may not be removed for committing a "crime of domestic violence." Of the three elements that the prosecution must prove in every case to secure a conviction for harassment, only the latter two bear a logical relationship to physical force.⁵ We will examine Oregon and federal law to assess whether objectively offensive physical contact necessarily entails proof of the use of physical force sufficient to constitute a "crime of violence."

In State v. Sallinger, 11 Or.App. 592, 504 P.2d 1383, 1386 (1972), the Oregon Court of Appeals defined the lower limit of Oregon's harassment statute to include "striking, slapping, shoving, kicking, grabbing, and similar acts that are an interference with the `contactee,' regardless of whether they produce any pain or discomfort." The Oregon Court of Appeals, in consistent terms, elaborated on the laxity of this standard in State v. Keller, 40 Or.App. 143, 594 P.2d 1250. There, the appellate court clarified the lower limit of Oregon's harassment statute, holding that "spitting on another can be an interference with the physical integrity of the victim" sufficient to sustain a conviction for harassment. Id. at 1252. Indirect physical contacts such as "hitting another with a thrown missile, poking another with a stick or ... striking the clothing rather than the flesh of the victim," all are cognizable under Oregon's harassment law. Id. at 1252.⁶

The necessary elements of the Oregon crime of harassment, as defined by the statute and case law, do not require sufficient "force" to constitute a "crime of violence" under 18 U.S.C. § 16(a). We have squarely held "that the force necessary to constitute a crime of violence [] must actually be violent in nature." United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir.2000) (quoting Ye v. INS, 214 F.3d 1128, 1133 (9th Cir.2000)) (alteration in original) (internal quotation marks omitted); see also Black's Law Dictionary 673 (8th ed.2004) (defining actual or physical force as"[f]orce consisting in a physical act, esp. a violent act directed against a ... victim"). Yet the Oregon harassment offense, harkening back to the ancient common law of battery,⁷ can be made out based on an ephemeral touching, so long as it is offensive.

Respondent relies on the BIA's decision in In re Martin, 23 I. & N. Dec. 491, 493 (BIA 2002) (en banc), arguing that it holds that the legislative history of 18 U.S.C. § 16 supports the conclusion that an assault involving the intentional infliction of physical injury has as an element the use of physical force. This argument, however, misses the point. We find In re Martin unpersuasive because it dealt with a state statute that required intent to inflict physical injury. 23 I. & N. Dec. at 493-95. By contrast, as we have explained, the Oregon harassment statute will routinely embrace within its...