                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                           FOR THE TENTH CIRCUIT                              June 2, 2020
                       _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
 JUAN M. CERVANTES-AGUILAR,

       Petitioner,

 v.                                                         No. 19-9566
                                                        (Petition for Review)
 WILLIAM P. BARR, United States
 Attorney General,

       Respondent.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before BRISCOE, LUCERO, and HARTZ, Circuit Judges.
                   _________________________________

      Petitioner Juan M. Cervantes-Aguilar seeks review of a final order of removal.

He challenges the holding of the Board of Immigration Appeals (BIA) that he is

removable because he was convicted of an offense that constitutes a crime of

domestic violence under the Immigration and Naturalization Act (INA). Exercising

jurisdiction under 8 U.S.C. § 1252(a), we deny the petition for review.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.    Background

      Petitioner, a native and citizen of Mexico, was admitted to the United States as

a lawful permanent resident in 2014. In 2017 he pleaded no contest in Utah state

court to assault, a Class B misdemeanor, in violation of Utah Code § 76-5-102.

Based on that conviction, Petitioner was charged as removable under 8 U.S.C.

§ 1227(a)(2)(E)(i) for having been convicted of a crime of domestic violence. An

immigration judge (IJ) sustained that charge. The BIA agreed with the IJ and

dismissed the appeal.

II.   Discussion

      Petitioner argues that the BIA erred in holding that his Utah simple-assault

conviction under § 76-5-102 is a crime of domestic violence under

§ 1227(a)(2)(E)(i). We review de novo whether an alien has been convicted of a

removable offense. See Bedolla-Zarate v. Sessions, 892 F.3d 1137, 1139 (10th Cir.

2018).1

      A.     The Categorical Approach

      Aliens convicted of certain criminal offenses are removable. See 8 U.S.C.

§ 1227(a)(2). To determine whether an alien’s state conviction constitutes a

removable offense, we apply a categorical approach comparing the elements of the


      1
        Petitioner repeatedly emphasizes that the government has the burden to
demonstrate by clear and convincing evidence that he is removable based upon his
conviction for Utah simple assault. But he does not challenge the evidence
supporting the fact of his conviction. He argues that it does not constitute a
removable offense. Thus, he raises only a legal issue that we review de novo.

                                          2
state statute with the elements of the generic federal offense as defined in the INA.

See Bedolla-Zarate, 892 F.3d at 1139-40. Any act criminalized by the state statute

must fall within the definition of the removable offense. See id. at 1140.

       Petitioner was convicted of misdemeanor simple assault in violation of Utah

Code § 76-5-102. That section provides, in relevant part:

       (1) Assault is:
              (a) an attempt, with unlawful force or violence, to do bodily injury to
              another; or
              (b) an act, committed with unlawful force or violence, that causes
              bodily injury to another or creates a substantial risk of bodily injury
              to another.
Id. § 76-5-102(1).2 The removable offense in this case is a “crime of domestic

violence,” which the INA defines as “any crime of violence,” as defined in 18 U.S.C.

§ 16, against a person in a qualified domestic relationship with the perpetrator.

8 U.S.C. § 1227(a)(2)(E)(i). Section 16(a) defines crime of violence 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 In applying the


       2
        If a state statute is divisible, meaning that it lists elements in the alternative,
we modify our categorical approach by looking at certain documents in the criminal
record to determine which elements of the statute formed the basis of the alien’s
conviction. See Jimenez v. Sessions, 893 F.3d 704, 709 (10th Cir. 2018). The
government does not dispute Petitioner’s contention that § 76-5-102(1) is not
divisible. We therefore assume for purposes of the petition for review that the statute
of conviction is indivisible and apply only the categorical approach.
       3
        We consider only the definition of a crime of violence in § 16(a). See
Sessions v. Dimaya, 138 S. Ct. 1204, 1215-16 (2018) (invalidating § 16(b) as
unconstitutionally vague).

                                             3
categorical approach, we construe the elements of § 1227(a)(2)(E)(i) according to

federal law and the elements of § 76-5-102 according to state law. See United States

v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017).

       To conclude that a state statute is not categorically a removable offense, there

must be “a realistic probability, not a theoretical possibility, that the State would

apply its statute to conduct that falls outside” the generic federal offense as defined in

the INA. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). To show such a

realistic probability, an alien “must at least point to his own case or other cases in

which the state courts in fact did apply the statute in the special (nongeneric) manner

for which he argues.” Id. But where a state statute’s plain language applies more

broadly than the federally defined offense, it requires no legal imagination to hold

there is a realistic probability that the State will apply the statute to conduct that falls

outside the generic definition of the crime. See United States v. Titties, 852 F.3d

1257, 1274-75 (10th Cir. 2017). Here, relying on both the plain language of the

statute and Utah cases applying it, Petitioner argues that simple assault under

§ 76-5-102(1) is not categorically a crime of domestic violence. (He does not dispute

that he had a qualified domestic relationship with the victim of his offense.)

       B.     Utah Simple Assault is Categorically “Against a Person”

       Petitioner first contends that while a “crime of domestic violence” must be

“against a person,” § 1227(a)(2)(E)(i), a conviction for Utah simple assault can be

based upon an act committed against property. For this proposition, he relies on

State v. Wareham, 143 P.3d 302, 308 (Utah. Ct. App. 2006), in which the court held

                                             4
that the defendant’s act of violently ransacking the victim’s house in her presence

was sufficient to sustain an assault conviction under § 76-5-102(1). But Petitioner

ignores the court’s explicit statement that the defendant, by his act of vandalizing the

victim’s house in her presence, had “committed an assault against [the victim].” Id.

See United States v. Pam, 867 F.3d 1191, 1209-10 (10th Cir. 2017) (holding that a

criminal statute (1) intended to protect persons rather than property and (2) construed

as requiring the creation of a risk of harm to the person of another necessarily

involved at least the attempted or threatened use of physical force against another

person). Based upon the plain meaning of the statutory elements, Utah simple assault

must be “against a person,” as § 1227(a)(2)(E)(i) requires.

      Nor does “physical force against the person . . . of another,” as used in § 16(a),

require that force be exerted directly against a person. Rather, “use of physical force

includes force applied directly or indirectly.” United States v. Melgar-Cabrera,

892 F.3d 1053, 1066 (10th Cir.) (internal quotation marks omitted), cert. denied,

139 S. Ct. 494 (2018). “That the harm occurs indirectly, rather than directly (as with

a kick or punch), does not matter.” Id. at 1065 (internal quotation marks omitted). In

arguing that indirect force must actually cause an injury to a person, Petitioner

ignores that § 16(a) applies broadly to “the use, attempted use, or threatened use of

physical force” against a person. See United States v. Fagatele, 944 F.3d 1230, 1233

(10th Cir. 2019) (construing nearly identical elements-clause language in the

sentencing guidelines), petition for cert. filed, No. 19-8221 (U.S. Apr. 3, 2020).

Thus, the assault conviction in Wareham based upon the defendant’s violently

                                           5
ransacking the victim’s home in her presence, thereby committing an assault against

her, see 143 P.3d at 308, does not demonstrate a categorical difference between

§ 76-5-102(1) and § 16(a).

      C.     Utah Simple Assault Categorically Requires Force that is Capable
             of Causing Physical Pain or Injury

      Petitioner also argues that § 76-5-102(1)(b) is not categorically a crime of

violence because it does not require the level of “force” that is necessary under

§ 16(a). The parties agree that “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. 133, 140 (2010) (construing the term physical force in the

definition of violent felony in the ACCA). In Johnson the Court declined to construe

the term force in the ACCA as having the “specialized meaning that it bore in the

common-law definition of battery,” under which the element of force could “be

satisfied by the slightest offensive touching.” Id. at 139. But Johnson’s definition of

physical force “does not require any particular degree of likelihood or probability

that the force used will cause physical pain or injury; only potentiality.” Stokeling v.

United States, 139 S. Ct. 544, 554 (2019).4

      Petitioner does not dispute that to the extent a conviction under

§ 76-5-102(1)(b) is based upon an act that actually causes bodily injury, it is


      4
         Petitioner asserts in his reply brief that Stokeling’s construction of “physical
force” applies only to robbery statutes. But we have applied it in holding that an
assault-type statute required the use, attempted use, or threatened use of physical
force. See United States v. Winder, 926 F.3d 1251, 1254, 1256 (10th Cir.), cert.
denied, 140 S. Ct. 559 (2019). Citing Johnson and Stokeling, we stated that “this
                                            6
categorically a crime of violence because it is not possible to cause bodily injury

without using force that is capable of producing that result. But he contends that a

conviction under § 76-5-102(1)(b) based on the elements of “unlawful force . . .

that . . . creates a substantial risk of bodily injury to another” is not categorically a

“crime of violence” under § 16(a). He argues that because § 76-5-102(1)(b) refers to

unlawful force “or” violence, these terms must have different meanings to avoid

either term being superfluous. See Hall v. Utah State Dep’t of Corr., 24 P.3d 958,

963 (Utah 2001). And while he agrees that “violence” involves a level of force

sufficient to cause bodily injury, Petitioner asserts that “unlawful force” clearly must

be a lower level of force that includes mere offensive touching, which is insufficient

to satisfy the physical-force element in § 16(a). He maintains that even if this

conclusion is not evident based upon the plain meaning of the statutory terms, there

is still a realistic probability that a person could be convicted of Utah simple assault

based upon mere offensive touching. We are not persuaded.

       To begin with, regardless whether unlawful force and violence have different

meanings in the Utah statute, the statute requires the defendant to “attempt . . . to do

bodily injury” or to perform an act “that causes bodily injury” or “creates a

substantial risk of bodily injury.” Bodily injury, as used in § 76-5-102, “means

physical pain, illness, or any impairment of physical condition.” Utah Code

§ 76-1-601(3). While substantial risk is not defined by statute, risk commonly means


force does not need to be particularly strong or likely to cause pain or injury.” Id. at
1254.
                                             7
“the chance of injury, damage, or loss; [especially], the existence and extent of the

possibility of harm.” Risk, Black’s Law Dictionary (11th ed. 2019). And in this

context, substantial means “[c]onsiderable in extent [or] amount.” Substantial,

Black’s Law Dictionary (11th ed. 2019). Thus, to result in a conviction, the

“unlawful force” must suffice to create a considerable possibility of physical pain,

illness, or any impairment of physical condition.

      This is enough force to satisfy the requirement of “physical force” in § 16(a).

Physical force means “force capable of causing physical pain or injury.” Johnson,

559 U.S. at 140 (emphasis added). And all that is required is the “potentiality” of

causing physical pain or injury. Stokeling, 139 S. Ct. at 554. Thus, Utah simple

assault is categorically a crime of violence under § 16(a).

      Petitioner’s arguments to the contrary are not persuasive. He points to Utah

Court of Appeals decisions stating that assault under § 76-5-102 “involve[s]

offensive touching.” State v. Jones, 878 P.2d 1175, 1177 (Utah Ct. App. 1994); see

also State v. Ricks, 436 P.3d 350, 352 (Utah Ct. App. 2018), cert. denied, 437 P.3d

1250 (Utah 2019); State v. Atkin, 135 P.3d 894, 898 (Utah Ct. App. 2006). But none

of these cases had occasion to address the minimum amount of force necessary for an

assault conviction, nor did they involve acts that would constitute mere offensive

touching. See Jones, 878 P.2d at 1175 (defendant grabbed the victim’s arm, pulled

her, squeezed her buttocks, swung her around, poked her in the chest, and squeezed

her breasts through her shirt); Ricks, 436 P.3d at 351 (defendant lacerated the

victim’s nipple, hit her head, face, and thigh, and split her cheek open); Atkin,

                                            8
135 P.3d at 896 (defendant “terrorized the victim,” beat her face and neck, choked

her, and twisted her breast, causing significant pain). We do not think any of those

opinions read “bodily injury” out of the Utah statute.

       Petitioner next refers us to Justice Scalia’s concurring opinion in United States

v. Castleman, 572 U.S. 157, 177-78 & n.4 (2014) (Scalia, J., concurring), which cited

§ 76-5-102 as an example of a statute that prohibits both infliction of bodily injury

and offensive touching. “Although a concurring opinion is not binding on us, we

may consider it for its persuasive value.” United States v. Jefferson, 911 F.3d 1290,

1300 n.10 (10th Cir. 2018), vacated on other grounds, 140 S. Ct. 861 (2020). And

few jurists have devoted more careful attention to statutory language than did Justice

Scalia. But the Justice gave the reader no explanation for why he catalogued the

Utah statute as he did; and his analysis of the issue before the Court would have been

the same if he had read the statute as we do.

       Petitioner’s final contention is that even if the plain meaning of § 76-5-102(1)

does not establish that it is broader than the definition of a crime of violence in

§ 16(a), there is still a realistic probability that Utah would apply that section to

conduct that amounts to mere offensive touching. To establish such a realistic

probability, “he must at least point to his own case or other cases in which the state

courts in fact did apply the statute in the special (nongeneric) manner for which he

argues.” Duenas-Alvarez, 549 U.S. at 193.

       Petitioner cites two Utah Court of Appeals decisions, but neither involved a

mere offensive touching. See In re J.W., 30 P.3d 1232, 1234 (Utah Ct. App. 2001)

                                             9
(defendant threw snowballs at victim in what “was clearly an attempt to do bodily

injury to another” (internal quotation marks omitted)); State v. Wright, 442 P.3d

1185, 1195-96 (Utah Ct. App.), cert. denied, 456 P.3d 391 (Utah 2019) (defendant

pushed mother into chair). He also points to two plea agreements entered in Utah

municipal courts that describe the conduct underlying the defendants’ simple assault

convictions under § 76-5-102(1) as involving offensive touching. See Admin. R. at

166, 183. But trial courts do not create law; their decisions do not even bind

themselves. And informality reigns in municipal courts. We therefore have

restricted our reasonable-probability review to decisions from appellate courts. See

Harris, 844 F.3d at 1264.5

III.   Conclusion

       The petition for review is denied.


                                             Entered for the Court


                                             Harris L Hartz
                                             Circuit Judge




       5
        We recognize that this general rule may not apply to trial-court proceedings
in the petitioner’s own case.
                                            10
