Simple battery under Ga. Code Ann. §16-5-23(a)(2) is an aggravated felony "crime of violence" under INA §101(a)(43)(F).

Petitioner, a lawful permanent resident, was convicted of one count of simple battery in violation of Ga. Code Ann. §16-5-23(a)(2) and was sentenced to 12 months imprisonment. The state court credited Petitioner with six days of time served and ordered him to complete the remainder of the sentence on probation. In December 2005, the state court revoked Petitioner's probation, ordered him to serve 22 days in county jail, continued the remainder of his probation, and required Petitioner to enroll in anger management courses. In October 2006, Petitioner was charged with removability for having been convicted of an aggravated felony "crime of violence" for which the term of imprisonment imposed was at least one year. INA §101(a)(43)(F). The immigration judge ordered Petitioner removed to Mexico and the BIA affirmed.

On review, the court considered whether a conviction for simple battery under Ga. Code Ann. §16-5-23(a)(2) constitutes an aggravated felony "crime of violence" as defined by 18 USC §16. Under 18 USC §16(a), a crime of violence is "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Georgia's simple battery statute provides that, "[a] person commits the offense of simple battery when he or she either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another." Ga. Code Ann. §16-5-23(a)(1)-(2). Georgia courts have held that to sustain a conviction under either prong, actual physical contact is required. See Hammonds v. State, 263 Ga. App. 5 (Ga. Ct. App. 2003); McKinney v. State, 218 Ga. App. 633 (Ga. Ct. App. 1995).

In United States v. Griffith, 455 F.3d 1339 (11th Cir. 2006), the court held that a conviction under the first prong, §16-5-23(a)(1), constitutes a "crime of violence" under 18 USC §922(g), which makes it unlawful for any person who has been convicted of a "misdemeanor crime of domestic violence" to possess a firearm or ammunition. Similar to 18 USC §16(a), a "crime of domestic violence" for purposes of 18 USC §922(g)(9) includes an offense that "(ii) has, as an element, the use or attempted use of physical force." 18 USC §921(a)(33)(A). In Griffiths, the court concluded that the "simple physical contact" made illegal by §16-5-23(a)(1) satisfied the "use of physical force" definition. In the present case, Petitioner's simple battery conviction under the second prong, §16-5-23(a)(2), required more than simple contact; it required intentionally causing physical harm to the victim through physical contact. Therefore, the court concluded, Petitioner's conviction under §16-5-23(a)(2) constituted a "crime of violence." The court's decision was bolstered by its prior decisions in United States v. Llanos-Agostadero, 486 F.3d 1194 (11th Cir. 2007) (holding that aggravated battery under Fla. Stat. §784.03(1)(a)(2), the language of which is virtually identical to Ga. Code Ann. §16-5-23(a)(2), constitutes a "crime of violence" for purposes of sentencing enhancement, which is defined the same as 18 USC §16(a)) and Hicks v. Moore, 422 F.3d 1246 (11th Cir. 2005) (holding that a strip search of a plaintiff who was arrested and charged with "family violence battery" in violation of Ga. Code Ann. §16-5-23.I, was not unconstitutional because the crime with which she was charged was "obviously one of violence").

The court also rejected Petitioner's argument that he was not convicted of an aggravated felony because his original 12 month sentence was revoked when he violated probation, and he was "resentenced" to only 22 days in jail. The court disagreed, noting that the order revoking Petitioner's probation states that the probation was "continued, under supervision, subject to the further provision[s]" enumerated. The petition for review was denied.