                               UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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

                                      2
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.



                                         3
             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 court-

appointed 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

                                              4
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




                                      5
