Cancellation of Removal

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7^th Circuit Court of Appeals

Case Name: Jose De Jesus Caldera-Torres v. Merrick B. Garland

Case No.: 22-2282

Officials: Easterbrook, Wood, and St. Eve, Circuit Judges.

Focus: Cancellation of Removal

Jose De Jesus Caldera-Torres, a citizen of Mexico, is in the United States without permission. He conceded this but sought cancellation of removal under 8 U.S.C. §§ 1229a(c)(4), 1229b(b)(1). To be eligible for that relief an alien must show, among other things, that he has not been convicted of a crime of domestic violence. Caldera-Torres has on his record a conviction for battery, in violation of Wis. Stat. §940.19(1), arising from an attack on the mother of his daughter. An immigration judge concluded that this conviction makes Caldera-Torres ineligible, and the Board of Immigration Appeals agreed. Caldera-Torres asks us to set aside that order on the ground that, although Wis. Stat. §940.19(1) is a “crime of violence” for federal purposes, it is not a crime of domestic violence, because the victim’s identity is not an element of the offense.

Caldera-Torres is right about the elements of the offense under Wisconsin law. Section 940.19(1) reads: “Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.” The Seventh Circuit held in Beltran-Aguilar v. Whitaker, 912 F.3d 420 (7th Cir. 2019) (Barrett, J.), that this statute names a “crime of violence” under the elements clause of 18 U.S.C. §16(a). But the victim’s identity is irrelevant to the state’s law, so, if a “domestic” element is essential, then Caldera-Torres is not disqualified.

Caldera-Torres has not established the absence of a disqualifying conviction.

DENIED

Decided 04/27/23

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