author: PRISCILLA R. OWEN, Circuit Judge:

text:
    Howard ZERINGUE, Plaintiff-Appellee, v. CRANE COMPANY, Defendant-Appellant.
    No. 16-30058
    United States Court of Appeals, Fifth Circuit.
    Filed January 20, 2017

      Scott Michael Galante, Galante & Biva-lacqua, L.L.C., Jennifer C. Deasy, Margaret E. Woodward, New Orleans, LA, Damon R. Pourciau, Esq., Pourciau Law Firm, L.L.C., Kenner, LA, for Plaintiff-Appellee.
    Nicholas P. Vari, Esq., Michael James Ross, K & L Gates, L.L.P., Pittsburgh, PA, Barry Clayton Campbell, Dogan & Wilkinson, P.L.L.C., Metairie, LA, for Defendant-Appellant.
    Before CLEMENT, PRADO, and OWEN, Circuit Judges.
   PRISCILLA R. OWEN, Circuit Judge:

Howard Zeringue sued Crane Co. (Crane) and twenty other defendants in state court, asserting strict liability, negligence, and failure to warn claims to recover for injuries allegedly caused by asbestos exposure. Crane removed the case to federal court pursuant to the federal-officer removal statute. After the district court remanded the case to state court, Crane appealed. We reverse and remand.

I

Zeringue asserts that he was first exposed to asbestos in 1952 while deployed with the United States Navy, in which he served in various capacities as an active duty sailor aboard three Navy vessels until 1956. He alleges that he was then exposed to asbestos at two other jobs, including one in which he sold insurance in Avondale Shipyard near ships that contained asbestos, but he does not provide the time period during which this exposure allegedly occurred. At no point does Zeringue specify which defendants allegedly exposed Zeringue during which jobs nor which specific objects contained asbestos at these various jobsites. Instead, Zeringue maintains that “[a]t all times relevant” thirteen of the twenty-one defendants, including Crane, “designed, evaluated, manufactured, packaged, furnished, stored, handled, transported, installed, distributed, sold and/or supplied asbestos-containing products to Plaintiffs jobsites where he was exposed.”

Crane removed the case to the Eastern District of Louisiana pursuant to the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). Crane’s involvement in this litigation stems from contracts it obtained to manufacture and provide parts, predominately valves, for the Navy. In its removal petition, Crane asserted that “any product that [Zeringue] alleges Crane Co. manufactured for or supplied to the Navy (and any product literature, labeling, or warnings that accompanied that product) would be subject to Navy specifications and requirements” and that, accordingly, “[f]ed-eral officers exercised their discretion regarding whether (1) asbestos was used in the product, and (2) whether a warning would accompany the product.” To bolster this claim, Crane provided affidavits and sample military specifications. Crane maintains that this evidence establishes that all products provided to the Navy required compliance with Navy specifications, some of which required asbestos use, and could not be installed on Navy ships unless the Navy Machinery Inspectors first determined that the products did in fact comply with the detailed specifications.

Zeringue moved to remand the case to state court. The district court determined that although Crane had “allege[d] all of the elements for ... federal officer removal” and had provided evidence that permitted a “plausible] assum[ption] that any equipment that Crane built for the Navy was indeed subject to detailed specifications,” Crane had not established that the “government exercised its discretion, with respect to the specific design and warning problems that are implicated by Zeringue’s claims.” Based on this deficiency, the district court granted Zeringue’s motion. Crane appealed.

II

We review a district court’s decision on a motion to remand de novo. We have recently observed with regard to 28 U.S.C. § 1442 that “[although the principle of limited federal court jurisdiction ordinarily compels us to resolve any doubts about removal in favor of remand, ... courts have not applied that tiebreaker when it comes to the federal officer removal statute in light of its broad reach.”

Section 1442 permits, in pertinent part, “any person acting under [an officer] of the United States or of any agency thereof’ to remove a state suit to federal court if any of the plaintiffs claims are “for or relating to any act under color of such office.” We have interpreted this part of the statute to require a defendant to show (1) that it is a person within the meaning of the statute, (2) that it has “a colorable federal defense,” (3) that it “acted pursuant to a federal officer’s directions,” and (4) “that a causal nexus exists between [its] actions under color of federal office and the plaintiffs claims.”

A

Although Crane is a corporation, “the Supreme Court has long recognized that the removal statute also applies to private persons and corporate entities “who lawfully assist the federal officer in the performance of his official duty.’ ” Crane is a “person” for purposes of § 1442.

B

Section 1442 “is a pure jurisdictional statute” in which “the raising of a federal question in the officer’s removal petition ... constitutes the federal law under which the action against the federal officer arises for [Article] III purposes.” It permits a federal defense, which is generally statutorily impotent to establish subject matter jurisdiction, to serve as the federal question that endues the court with jurisdiction. As with a federal claim that creates federal question jurisdiction, a federal defense fulfilling this same function does not need to be “clearly sustainable,” as § 1442 does not require a federal official, or a person acting under an official, to “win his case before he can have it removed,” but rather the defense needs only to be “colorable.” Although neither we nor the Supreme Court has defined “color-able” in the context of § 1442, the Supreme Court has clarified that a non-color-able federal claim, for the purposes of federal question jurisdiction, is a claim that is “‘immaterial and made solely for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and frivolous.’ ” Because § 1442 allows the assertion of a col-orable federal defense to serve the function typically reserved for the assertion of a colorable federal claim, it follows that a non-colorable federal defense is a defense that is immaterial and made solely for the purpose of obtaining jurisdiction or that is wholly insubstantial and frivolous.

Crane asserts government-contractor immunity, originally articulated in Boyle v. United, Technologies Corp., as its federal defense. This defense is an extension of the immunity afforded to the federal government for the performance of discretionary actions pursuant to 28 U.S.C. § 2680(a). The logic is that because a contractor will pass any added costs from litigation risk exposure to the government, “[i]t makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production.” Accordingly, government contractors are also immune from suit for design defects if “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.”

The first two conditions ensure that the government exercised its discretion, as required by the statutory source from which government-contractor immunity derives, by considering “the design feature in question,” which the government can do by “evaluat[ing] th[at] design feature.” The government contractor can then prove that it conformed to the government specifications by showing “[ajcceptance and use of an item following its production.”

The gravamen of Crane’s claim of government-contractor immunity is that “any product that [Zeringue] alleges Crane Co. manufactured for or supplied to the Navy (and any product literature, labeling, or warnings that accompanied that product) would be subject to Navy specifications and requirements,” with which Crane would have complied. To support this claim, Crane supplied sample military specifications and three affidavits. These documents establish that Crane’s claim to government-contractor immunity is color-able.

Two of Crane’s provided military specifications, one from 1938 and one from 1978, required asbestos in the packing used in certain valves. Crane also provided a military specification from 1966 that required asbestos use for pipe covering, insulation, and millboard. Although Zeringue correctly recognizes that these specifications do not cover the specific period during which he served upon Navy vessels, he admitted in his briefing before the district court that “it is a bit of a stretch to even conclude that Crane Co.’s affiants” (and, logically, Crane itself) “have personal knowledge of the products and warnings at issue in this case, as allegations regarding specific products simply were not made [in the petition for damages].” Certainly, a specific contract that establishes that the government required asbestos for the parts with which Zeringue came into contact would be ideal, but to require that level of specificity to establish a colorable federal defense would equate to requiring Crane to “win his case before he can have it removed,” a requirement which we cannot impose.

The three submitted affidavits bolster Crane’s defense. Anthony Pantaleoni, Crane’s Vice-President of Environment, Health and Safety, stipulated that “[a]ll equipment supplied by Crane Co. to the Navy was built in accordance with [military] specifications” and that the military specifications “governed all aspects of a piece of equipment ... including materials.” Retired Rear Admiral David Sargent, whose assignments in the Navy primarily involved the operation and maintenance of Navy ships, echoed these claims, noting that the uniformity necessary “to ensure commonality across systems” meant that “[equipment could not have been installed aboard Navy vessels unless it was first determined by the Navy to be in conformity with all applicable Navy specifications.”

The final affidavit is from Dr. Samuel Forman, a former Navy physician tasked with investigating the Navy’s “historical handling and knowledge of various industrial hygiene issues, including asbestos disease.” Dr. Forman’s affidavit' supports Crane’s assertion that the Navy knew as much or more than Crane did’ about the dangers of asbestos exposure. Specifically, Dr. Forman stated that the Navy’s knowledge of asbestos dangers “has been quite complete when compared to available knowledge over time, and at least by the early 1940s, the Navy had become a leader in the field of occupational medicine relating to, among other things, asbestos dust inhalation exposure.” Dr. Forman’s affidavit demonstrates that by at least 1939, the Navy had learned that exposure to asbestos dust for prolonged periods could result in “an industrial disease of the lungs.”

These sample military specifications and affidavits are not definitive proof that Ze-ringue’s asbestos exposure resulted from the Navy’s—not Crane’s—discretionary decision, nor are they definitive proof that Crane did not need to supply the Navy with information regarding the dangers of asbestos because of the Navy’s existing knowledge. But definitive proof is not necessary for removal, and the military specifications and affidavits do suffice as a not-insubstantial and non-frivolous basis upon which Crane may assert government-contractor immunity.

C

Section 1442 also requires a government contractor seeking removal to establish that it was “acting under” an officer of the United States or an agency when the acts giving rise to the complaint occurred. Although the words “acting under” are undoubtedly broad, the Supreme Court has clarified that they “must refer to ... a relationship that involves ‘acting in a certain capacity, considered in relation to one holding a superior position or office.’ ” This relationship “typically involves ‘subjection, guidance, or control,’ ” but, at a minimum, it “must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior.”

Direct oversight of the specific acts that give rise to a plaintiffs complaint is not required to satisfy this part of § 1442. In Wilde v. Huntington Ingalls, Inc., an unpublished decision, this court held that, based on a government contractor’s averment that “when it allegedly exposed [the plaintiff] to asbestos, it was producing ships pursuant to the direction of the United States Maritime Commission,” the contractor was acting under a federal officer. The court noted that the mere fact that “the federal government would have had to build those ships had [the defendant] not done so” satisfied this requirement. This reasoning is persuasive.

Crane’s provision of parts in an effort to assist the Navy’s construction of vessels satisfies the “acting under” requirement. The military specifications and affidavits that Crane provided suggest that the Navy exercised a significant degree of guidance and control over Crane. These affidavits, as noted above, state that “[a]ll equipment supplied by Crane Co. to the Navy was built in accordance with [military] specifications,” which “governed all aspects of a piece of equipment ... including materials,” and “[equipment could not have been installed aboard Navy vessels unless it was first determined by the Navy to be in conformity with all applicable Navy specifications.” Even absent this significant degree of oversight, the Navy directed Crane to build parts, and, had Crane not done so, the Navy would have had to build those parts instead. In accordance with our duty to avoid “a narrow, grudging interpretation of § 1442(a)(1),” we conclude that the facts in the record before us are sufficient to establish that Crane was “acting under” the Navy.

D

-Before 2011, § 1442 allowed the removal of a state suit against a federal officer, or a person acting under a federal officer, only when the state suit was “for any act under color of such office.” In 2011 Congress extended § 1442 to allow the removal of a state suit “for or relating to any act under color of such office.” The plain meaning of the added language broadens the scope of the statute as “the ordinary meaning of [relating to] is a broad one—‘to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.’ ”

This element of § 1442, both before and after the 2011 amendment, requires the removing party to establish “a nexus, a ‘causal connection’ between the charged conduct and asserted official authority.” This causal nexus requirement ensures that removal “only arises when ‘a federal interest in the matter’ exists.” Even before the 2011 amendment, the causal connection did not need to be “airtight,” because such a requirement would “defeat the purpose of the removal statute.” This reasoning led the Supreme Court to remark in Willingham v. Morgan that “it [is] sufficient” for a federal officer in a civil suit to establish the requisite causal connection by showing that the officer’s “relationship to [the plaintiff] derived solely from [the officer’s] official duties.” This court, in rejecting the argument that negligent acts are not within a person’s official authority, clarified that an act is within an officer’s authority, and within the scope of § 1442, “so long as he does not depart from the course of his duty so that it becomes his personal act.” The 2011 amendment expanded the breadth of acts sufficient to establish a causal nexus even further. It remains, however, that the causal nexus inquiry “must ... be tailored to fit the facts of each case.”

Despite the relatively broad reach of the causal nexus requirement, Zeringue contends that Crane has not established the existence of a causal nexus because “the causal connection must depend upon a showing of precise federal direction,” which Zeringue argues Crane has not established. However, the plain language of § 1442 cannot bear Zeringue’s construction.

Crane has established the requisite causal nexus between the charged conduct and its official authority. Crane’s relationship with Zeringue derives solely from its official authority to provide parts to the Navy, and that official authority relates to Crane’s allegedly improper actions, namely its use of asbestos in those parts. Although the court cannot attenuate the causal nexus requirement “to the point of irrelevance,” the plain import of the phrase “relating to” is that some attenuation is permissible, attenuation which is irreconcilable with Zeringue’s proposed requirement of precise federal direction.

Moreover, were we to require the level of precision requested by Zeringue, we also would unduly undermine the purpose of § 1442 by impermissibly requiring defendants seeking removal, like Crane, to establish more than a colorable claim that a purported design defect was the result of a federal officer’s discretion. Requiring “precise federal direction” to show a causal nexus, as Zeringue urges us to do, would not only render the “colorable” federal defense requirement a nullity, as the causal nexus requirement would hold the removing party to a heightened burden, but also would be contrary to the Supreme Court’s admonishment that “the test for removal should be broader, not narrower, than the test for official immunity.”

Our recent holding in Bartel v. Alcoa Steamship Co. is not to the contrary. In Bartel, the Navy—not the contractors— supplied ships that contained asbestos to the defendants. The defendants argued that there was a causal nexus between their authority to operate the ships, derived simply from the Navy providing the ships, and the charged conduct of failing “to warn of the dangers of asbestos, to train their crews in using asbestos-containing products, and to adopt procedures for the safe installation and removal of asbestos.” The charged conduct was private conduct that implicated no federal interest. Because the very purpose of the causal nexus requirement is to ensure that removal “only arises when ⅛ federal interest in the matter’ exists,” an extension of § 1442 to allow those defendants to remove would have stretched the causal nexus requirement to the point of irrelevance.

Conversely, if we were to , decline to extend the protection of § 1442 to this case, in which the Navy directed Crane to provide parts, we would render irrelevant Congress’s decision to allow the removal of suits for acts “relating to” any act taken under official authority. Again, we will not follow such “a narrow, grudging interpretation of § 1442(a)(1).” Crane has established a casual nexus.

Ill

Crane has established the right to remove the suit pursuant to § 1442. Because “removal of the entire case is appropriate so long as a single claim satisfies the federal officer removal statute,” we do not determine whether Crane independently established the right to remove Zeringue’s failure to warn claim. -

For the foregoing reasons, we REVERSE the judgment of the district court and REMAND for proceedings consistent with this opinion.

      . Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016).

      . Id. (citing Watson v. Philip Morris Cos., 551 U.S. 142, 147, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007); Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000)).

      . 28 U.S.C. § 1442(a)(1).

      . Savoie, 817 F.3d at 463 (“[R]emoval of the entire case is appropriate so long as a single claim satisfies the federal officer removal statute.”).

      . § 1442(a)(1).

      . Bartel v. Alcoa S.S. Co., 805 F.3d 169, 172 (5th Cir. 2015) (internal quotation marks omitted) (quoting Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398-400 (5th Cir. 1998)).

      . Savoie, 817 F.3d at 461 (quoting Watson, 551 U.S. at 151, 127 S.Ct. 2301).

      . Mesa v. California, 489 U.S. 121, 136, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989).

      . See New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 328-29 (5th Cir. 2008).

      . Mesa, 489 U.S. at 129, 136-37, 109 S.Ct. 959.

      . Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

      . Jefferson Cty. v. Acker, 527 U.S. 423, 431, 432, 119 S.Ct, 2069, 144 L.Ed.2d 408 (1999) (internal quotation marks omitted) (quoting Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969)),

      . Arbaugh, 546 U.S. at 513 n.10, 126 S.Ct. 1235 (quoting Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946)); see also Colorado v. Symes, 286 U.S. 510, 519, 52 S.Ct. 635, 76 L.Ed. 1253 (1932) (holding that federal-officer removal requires that a claim be "not without foundation and ... made in good faith”).

      . 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988).

      . 28 U.S.C. § 2680(a) (providing the government with immunity against "[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused”).

      . Boyle, 487 U.S, at 512, 108 S.Ct. 2510.

      . Id.

      . Id.

      . Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 435 (5th Cir. 2000).

      . Miller v. Diamond Shamrock Co., 275 F.3d 414, 420 (5th Cir. 2001); see also Kerstetter, 210 F.3d at 435-36 ("Extensive government involvement in the design, review, development and testing of a product, as well as extensive acceptance and use of the product following production, is evidence that the product line generally conformed with the government-approved specifications.'.

      . See Jefferson Cty. v. Acker, 527 U.S. 423, 431, 432, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) (internal quotation marks omitted) (quoting Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969)).

      . Watson v. Philip Morris Cos., 551 U.S. 142, 147, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007).

      . Id. at 151 (quoting 18 Oxford English Dictionary 948 (2d ed. 1989)).

      . Id. (quoting Webster's New International Dictionary 2765 (2d ed. 1953)).

      . Id. at 152.

      . 616 Fed.Appx. 710, 713 (5th Cir. 2015) (per curiam).

      . Id.

      . Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969).

      . Act of June 25, 1948, ch. 646, 62 Stat. 938 (codified at 28 U.S.C. § 1442).

      . Removal Clarification Act of 2011, Pub. L. No. 112-51, § 2(b)(2), 125 Stat. 545 (codified at 28 U.S.C. § 1442) (emphasis added); see also In re Commonwealth's Motion to Appoint Counsel, 790 F.3d 457, 467 (3d Cir. 2015).

      . Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (quoting Black’s Law Dictionary 1158 (5th ed. 1979)).

      . Jefferson Cty. v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) (quoting Willingham, 395 U.S. at 409, 89 S.Ct. 1813).

      . Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th Cir. 1998) (quoting Willingham, 395 U.S. at 406, 89 S.Ct. 1813).

      . Acker, 527 U.S. at 432, 119 S.Ct. 2069.

      . 395 U.S. at 409, 89 S.Ct. 1813 (emphasis added).

      . Allman v. Hanley, 302 F.2d 559, 561 (5th Cir. 1962).

      . Willingham, 395 U.S. at 408, 89 S.Ct. 1813.

      . Wilde v. Huntington Ingalls, Inc., 616 Fed.Appx. 710, 713 (5th Cir. 2015) (per curiam).

      . Willingham, 395 U.S. at 404, 89 S.Ct. 1813.

      . 805 F.3d 169 (5th Cir. 2015).

      . Id. at 172, 174.

      . Id. at 171, 172.

      . Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th Cir. 1998) (quoting Willingham, 395 U.S. at 406, 89 S.Ct. 1813),

      . Willingham, 395 U.S, .at 407, 89 S.Ct. 1813.

      . Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 463 (5th Cir. 2016),


source: Caselaw Access Project

author: EDWARD C. PRADO, Circuit Judge:

license: Public Domain

text:
    Tom HEANEY, Plaintiff-Appellee, v. Christopher L. ROBERTS; Parish of Jefferson, Defendants-Appellants. Tom Heaney, Plaintiff-Appellant-Cross-Appellee, v. Christopher L. Roberts, Defendant-Appellee, Ronald Black, Defendant-Appellee-Cross-Appellant, City of Gretna, Defendant-Cross Appellant.
    No. 15-31088 Cons w/ 16-30189
    United States Court of Appeals, Fifth Circuit.
    Filed January 23, 2017

      Brett John Prendergast, Esq., New Orleans, LA, for Plaintiff-Appellee.
    Craig Robert Watson, Blue Williams, L.L.P., Metairie, LA, for Defendants-Appellants.
    Before CLEMENT, PRADO, and OWEN, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

This case involves consolidated appeals by multiple parties. Plaintiff Tom Heaney was silenced and then ejected at a city council meeting in Gretna, Louisiana. He alleged that the presiding official at the meeting, Defendant Christopher Roberts, violated his rights under the First and Fourth Amendments of the Constitution as well as under the Louisiana state constitution. Heaney also argued that Defendant Ronald Black, the Gretna police officer who removed him from the meeting, violated those same constitutional rights as well as state tort law. Finally, Heaney alleged that the Parish of Jefferson (“Jefferson Parish”) and the City of Gretna were vicariously liable as the employers of Roberts and Black. The district court granted in part and denied in part the Defendants’ motions for summary judgment. Because there is a genuine issue of material fact as to whether Roberts is entitled to qualified immunity on the First Amendment claim, we DISMISS his interlocutory appeal. We also DISMISS Black’s cross-appeal for lack of appellate jurisdiction. We AFFIRM the district court’s grant of summary judgment as to the other claims.

I. BACKGROUND

A. Factual Background

On September 18, 2013, Tom Heaney attended a regularly scheduled Jefferson Parish council meeting in Gretna, Louisiana. In accordance with council rules, Hea-ney registered to speak during the time allowed for public comment. The rules allowed each registered speaker five minutes to address the council. Heaney wished to speak about the legality of council members accepting campaign contributions from contractors who had applied for and received no-bid contracts from the council. Councilman Christopher Roberts was presiding as chair of the meeting.

When Heaney had been speaking for about three minutes, he was interrupted by Roberts, who asked if he would yield the floor to the Parish Attorney, Ms. Fosh-ee. Heaney believed that he would receive the balance of his time after Ms. Foshee finished speaking given that a prior speaker had been given the balance of her time after yielding. Ms. Foshee spoke for several minutes, expressing her opinion that the council’s actions were legal. After she finished speaking, Heaney asked Roberts, “May I have my time back?” and Roberts responded, ‘Tes, how much time do we have?” Heaney then expressed his wish to challenge the Parish Attorney’s opinion. At that point, he was interrupted again by Roberts:

Roberts: Let me, we’ve had this conversation before, ok?
Heaney: Are you trying to stop me from speaking?
Roberts: Well you yielded and I do have the floor ... so ... I’m not going to turn this into a circus, ok? If you don’t believe what Ms. Foshee’s comments were—
Heaney: I—
Roberts: Let me finish. Last I checked, Ms. Foshee had a law degree hanging on the wall in her office. If you’re challenging whether or not what she’s saying to be accurate or not, you can go right to the elevator downstairs. The Clerk of Court’s office is there, and you’re welcome to file suit. This is not the forum for you to challenge the opinion of the parish attorney, ok?
Heaney: Now if I can be able to speak—
Roberts: No, let me finish. Let me finish. Once again, I’m going to ask you, are you an attorney?
Heaney: I don’t have to be an attorney to read and comprehend a decision—
Roberts: But I’m not going to sit here and have you berate the parish attorney.
Heaney: I have a decision. I have a decision by HUD that contradicts what Ms. Foshee says—
Roberts: Sir, ok. Your time’s up and I’m going to ask that you be removed because you’re being hostile so if you would please exit.
Heaney: I’m not being hostile.
Roberts: If you’ve got a problem with that, you can go downstairs.... This is the third time that you’ve tried to take issue with something
Heaney: You’re trying to stop me from presenting facts that contradict Ms. Foshee. You’re taking my time, and you’re violating parish ordinance.
Roberts: If you’d please remove the gentleman.

Ronald Black, a police officer with the City of Gretna, responded to Roberts’s request to remove Heaney from the chambers. Black approached the podium where Heaney was standing and indicated that he needed to move. Heaney stopped to hand documents to another person as he walked away up the aisle, intending to sit down for the rest of the meeting. He alleges that Black “continued to force plaintiff from the Council chambers” and that Black shoved him forward, causing him to fall to the floor. After getting up, Heaney alleges that Black “seized [him] by the arms and forcibly ejected him from the chambers” into an elevator and down to the first floor. While Heaney awaited an ambulance that had been called for him, Black consulted with his supervisor about whether or not Heaney should be arrested.

B. Procedural Background

Heaney filed a complaint on September 12, 2014. He alleged that Roberts and Black violated his First and Fourth Amendment rights and sought damages pursuant to 42 U.S.C. §§ 1983 and 1988, as well as punitive damages. In addition, Hea-ney asserted that both Roberts and Black violated his right to free expression under Article I, Section 7 of the Louisiana constitution and that Black was liable in tort for false arrest, battery, and negligence under Louisiana law. Heaney also alleged that Jefferson Parish and the City of Gretna should be vicariously hable as the employers of Roberts and Black, respectively.

Black and the City of Gretna, as well as Roberts and Jefferson Parish, filed motions for summary judgment on July 28, 2015. On December 2, 2015, the district court granted in part and denied in part both motions. Specifically, the court denied Roberts’s motion for summary judgment on the First Amendment and state constitutional claims. Because the state constitutional claim remains pending, Jefferson Parish remains in the lawsuit as Roberts’s employer on that claim. The court also denied Black’s motion for summary judgment on the state law battery and negligence claims. These tort claims remain pending against the City of Gretna on a theory of respondeat superior. The court granted summary judgment on the free speech claims as to Black, the Fourth Amendment claims as to Black and Roberts, the punitive damages claim, and the false arrest claim.

Roberts filed a notice of interlocutory appeal on December 21, 2015. On February 29, 2016, the district court entered a final judgment in accordance with its order pursuant to Federal Rule of Civil Procedure 54(b), finding no just reason for delay. Heaney appealed on March 4, 2016. Black appealed the denial of summary judgment on March 7, 2016. Roberts filed another notice of appeal on March 14, 2016.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over final decisions pursuant to 28 U.S.C. § 1291. While not a final decision, “the denial of a motion for summary judgment based upon qualified immunity is a collateral order capable of immediate review.” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). We have explained that when a “district court denies an official’s motion for summary judgment predicated upon qualified immunity, the district court can be thought of as making two distinct determinations, even if only implicitly.” Id. The court is first deciding that “a certain course of conduct would, as a matter of law, be objectively unreasonable in light of clearly established law.” Id. “Second, the court decides that a genuine issue of fact exists regarding whether the defendant(s) did, in fact, engage in such conduct.” Id. We do not have jurisdiction to review the second type of determination. Id. Instead, “we review the complaint and record to determine whether, assuming that all of [the plaintiffs] factual assertions are true, those facts are materially sufficient to establish that defendants acted in an objectively unreasonable manner.” Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000). “Within this limited appellate jurisdiction, ‘[t]his court reviews a district court’s denial of a motion for summary judgment on the basis of qualified immunity in a § 1983 suit de novo.’” Good v. Curtis, 601 F.3d 393, 398 (5th Cir. 2010) (quoting Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009)).

III. DISCUSSION

“Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012). There are generally two steps in a qualified immunity analysis. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). “First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second ... the court must decide whether the right at issue was clearly established at time of [the] defendant’s alleged misconduct.” Id. (internal quotations omitted). However, we are not required to address these steps in sequential order. Id. at 242, 129 S.Ct. 808 (“Because the two-step ... procedure is often, but not always, advantageous, the judges of the district courts and the courts of appeal are in the best position to determine the order of decisionmaking that will best facilitate the fair and efficient disposition of each case.”).

In Fourth Amendment cases, determining whether an official violated clearly established law necessarily involves a reasonableness inquiry. Id. at 244-45, 129 S.Ct. 808. In Pearson, the Supreme Court explained that officer is “entitled to qualified immunity where clearly established law does not show that the [conduct] violated the Fourth Amendment,” a determination which “turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.” Id. (internal quotations omitted). However, “a reasonably competent public official should know the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In general, “the doctrine of qualified immunity protects government officials from ,.. liability when they reasonably could have believed that their conduct was not barred by law, and immunity is not denied unless existing precedent places the constitutional question beyond debate.” Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013).

A. Free Speech Claims Against Roberts

Roberts argues that he is entitled to qualified immunity on the First Amendment claim because he was acting in his official capacity as councilman for Jefferson Parish during the meeting at issue. The constitutional right at issue is the First Amendment right to be free from viewpoint discrimination in a limited public forum. See Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 346 (5th Cir. 2001) (per curiam) (explaining that limited public forums “describe forums opened for public expression of particular kinds or by particular groups”). It is beyond debate that the law prohibits viewpoint discrimination in a limited public forum. See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). The government can restrict or regulate speech in a limited public forum “as long as the regulation ‘(1) does not discriminate against speech on the basis of viewpoint and (2) is reasonable in light of the purpose served by the forum.’ ” Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 758 (5th Cir. 2010) (quoting Chiu, 260 F.3d at 346).

Here, the district court denied summary judgment because a factual dispute exists as to whether Roberts’s conduct was viewpoint-based. Viewpoint discrimination exists “when the specific motivating ideology or the' opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); see also Pahls v. Thomas, 718 F.3d 1210, 1230 (10th Cir. 2013) (noting that “a claim of viewpoint discrimination in contravention of the First Amendment requires a plaintiff to show that the defendant acted with a viewpoint-discriminatory purpose”). If Heaney were to have violated a reasonable restriction, such as a topic or time constraint, there would be no constitutional violation. See Crawford-El v. Britton, 523 U.S. 574, 593, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); Lowery v. Jefferson Cty. Bd. of Educ., 586 F.3d 427, 435 (6th Cir. 2009) (“No violation occurs when the same result would have occurred in the absence of any illegitimate motive.”). However, Heaney was speaking on an approved topic and within his allotted time.

Because Heaney was not silenced for violating a reasonable restriction, the First Amendment claim turns on Roberts’s motive or intent in silencing and ejecting Heaney from the meeting. The district court declined to grant summary judgment in favor of Roberts because the “pivotal question”—whether Roberts acted on an improper motive—is a factual dispute that should be resolved by a jury. Due to that question • of fact, the district court was unable to determine' whether Roberts is entitled to • qualified immunity. Assuming that there was viewpoint discrimination, the court found that Roberts did violate clearly established law and that the violation was objectively unreasonable. Specifically, the district court stated: “It is beyond cavil that a reasonable government official in Roberts’ position would have known that it would be impermissible under the First Amendment to prevent Hea-ney from speaking and to eject him from the meeting based on the message he wás conveying.”

We agree. If Roberts acted with improper motive, he violated Heaney’s clearly established First Amendment 'right to be free from viewpoint discrimination in a limited public forum. Because we do not have jurisdiction to review the district court’s assessment that a -factual dispute exists, we dismiss Roberts’s appeal. See Chiu, 260 F.3d at 352 (“This question regarding Defendants’ motivation creates a genuine issue of material fact that cannot be decided on this appeal.”).

B. Punitive Damages Claim Against Roberts

Although the district court denied summary judgment on the First Amendment issue, the district court granted Roberts’s motion for summary judgment as to punitive damages. Punitive damages may be awarded in § 1983 cases “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). Reckless indifference has been described by the Supreme Court as “ ‘subjective consciousness’ of a risk of injury or illegality and a ‘criminal indifference to civil obligations.’” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) (citation omitted). “[U]nlike compensatory damages, punitive damages are never available as a matter of right, no matter how egregious the defendant’s conduct may be.” Hale v. Fish, 899 F.2d 390, 404 (5th Cir. 1990). The decision to award or deny punitive damages is left to the finder of fact. Id. This Court is deferential to district court determinations regarding punitive damages. We will not necessarily reverse the district court on punitive damages, “[e]ven if a party has made a showing justifying an award of punitive damages.” Thompkins v. Belt, 828 F.2d 298, 302 (5th Cir. 1987). That is because an “award of punitive damages is a harsh remedy and normally is not favored by law” and its goal “is to punish as well as to deter the commission of similar offenses in the future.” Creamer v. Porter, 754 F.2d 1311, 1319 (5th Cir. 1985).

Here, the district court was “persuaded that while the evidence could allow a reasonable jury to infer the necessary subjective intent to support a First Amendment violation, it will not permit a reasonable jury to infer the level of ‘evil intent’ or recklessness necessary to support a claim of punitive damages.” Although in many instances a factual dispute as to a constitutional violation will preclude summary judgment on punitive damages, it will not when there is no material question of fact as to the reckless nature of the defendant’s conduct. See Kyle v. Patterson, 196 F.3d 695, 698 (7th Cir. 1999) (“While evaluations of motive and intent are generally inappropriate on a motion for summary judgment, we have recognized an exception to this rule where a plaintiff fails to produce evidence raising a material question of fact regarding aggravating circumstances or the reckless or callous nature of the defendant’s actions.” (internal citation omitted)). We agree with the district court’s assessment of these facts. Because there is no question that Roberts’s conduct did not rise to the level of reckless indifference or evil intent, we affirm.

C. First Amendment Claim Against Black

The district court did not err in granting summary judgment in favor of Black on the First Amendment claim. Hea-ney argues that Black is not entitled to qualified immunity on the First Amendment claim because Black is “the individual who actually effectuated the First Amendment violation by seizing and removing Heaney.” Black counters -that in responding to a direct order to remove an individual at a council meeting, he was not required “to make his own independent determination as to whether the individual should be removed from the meeting, whether or not [he] ha[d] knowledge of all the facts which ha[d] caused the council chair to make the request.”

Heaney relies on Cozzo v. Tangipahoa Parish Council, 279 F.3d 273 (5th Cir.2002), to argue that an officer who “blindly follow[s]” orders is not entitled to qualified immunity. But Cozzo is distinguishable. In that case, this Court denied qualified immunity to a sheriffs deputy who “was only following the orders” of a superior in evicting the plaintiff based on a temporary restraining order (“TRO”) that “on its face neither state[d] nor require[d] eviction.” Id. at 284-85. In Cozzo, we found that the deputy “was well aware of the cause of [the plaintiffs] concerns and the need for clarification” before carrying out the order. Id. at 285. This was true particularly because the plaintiff had pointed out the TRO’s inaccuracies to the deputy when he came to evict her. Id.

A “right can be said to have been clearly established only if all reasonable officials in the defendant’s position would have concluded that the challenged state action was unconstitutional.” Barrow v. Greenville Indep. Sch. Dist., 332 F.3d 844, 846 (5th Cir.2003). Unlike the deputy in Cozzo, who had ample time and reasons to conclude that he was carrying out an illegal act, Black had no reason to believe that he was violating Heaney’s First Amendment rights by following Roberts’s order. We agree with the district court' that “Black was not required to cross-examine and second-guess Roberts regarding his First Amendment motives before acting.” See Collinson v. Gott, 895 F.2d 994, 997 (4th Cir. 1990) (affirming qualified immunity for a sheriffs deputy who escorted a citizen out of a city council meeting upon receiving orders to do so from the presiding officer). Black is entitled to qualified immunity on the First Amendment claim because his actions as sergeant-at-arms were not objectively unreasonable in light of clearly established law. We affirm on that claim.

D. Fourth Amendment Claim Against Black

The district court granted summary judgment on Heaney’s Fourth Amendment claims. “Qualified immunity provides ‘ample protection to all but the plainly incompetent or those who knowingly violate the law.’ ” Wooley v. City of Baton Rouge, 211 F.3d 913, 918-19 (5th Cir. 2000) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). There is a clearly established right to be free from unreasonable seizures under the Fourth Amendment. See, e.g., Michigan v. Summers, 452 U.S. 692, 696, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). But an officer is only denied qualified immunity if his or her actions are objectively unreasonable in light of clearly established law. See, e.g., Blackwell v. Barton, 34 F.3d 298, 303-04 (5th Cir. 1994) (finding that an officer who made an arrest pursuant to a facially valid warrant acted reasonably and was therefore entitled to qualified immunity despite violating a clearly established Fourth Amendment right).

We are convinced that the interaction between Black and Heaney was a seizure under the Fourth Amendment because Heaney was forced to leave the meeting. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (explaining that a “person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave”). However, we do not need to determine whether there was probable cause. Even “[i]f there is no probable cause to arrest, the question of whether qualified immunity nonetheless applies is a separate legal and factual issue.” Mesa v. Prejean, 543 F.3d 264, 271 (5th Cir. 2008). “Even if we find that the right was clearly established at the time of the alleged violation ..., a defendant will still be entitled to qualified immunity if the defendant’s conduct was ‘objectively reasonable in light of “clearly established” law at the time of the violation.’ ” Porter v. Ascension Par. Sch. Bd., 393 F.3d 608, 614 (5th Cir. 2004) (quoting Chiu v. Plano Independent School Dist., 339 F.3d 273, 279 (2003)). We assess the reasonableness of an officer’s actions “in light of ‘the facts available to him at the time of his action.’ ” Id. (quoting Chiu, 339 F.3d at 284).

Black’s conduct was objectively reasonable in light of clearly established law. As previously discussed, Black fulfilled the role of sergeant-at-arms at the meeting. He was therefore responsible for responding to requests by the council president to address disruptions. Black also reasonably believed he had legal authority to keep the peace at meetings and in the building. He testified that “Court security has authority to make sure that everything is peaceful and quiet in thp whole building ... not just the Council chambers; so if there is a problem anywhere in the whole building, we can ... ask them to leave or take other necessary action.” It was therefore not objectively unreasonable for Black to respond to Roberts’s request and escort Heaney out of the room or to briefly detain Heaney while consulting with his supervisor. Black is entitled to qualified immunity on the Fourth Amendment claim.

E. False Arrest Claim Against Black

The district court granted summary judgment on Heaney’s false arrest claim. Under Louisiana law, “[i]n order for plaintiffs to recover for false arrest, they must prove that they were unlawfully detained by the police against their will.” Harrison v. Dep’t of Pub. Safety & Corrs., 721 So.2d 458, 461 (La. 1998). There are “two essential elements: (1) detention of the person; and (2) the unlawfulness of the detention.” Miller v. Desoto Reg’l Health Sys., 128 So.3d 649, 655-56 (La. Ct. App. 2013) (quoting Kennedy v. Sheriff of E. Baton Rouge, 935 So.2d 669, 690 (La. 2006)). Courts have also referred to false imprisonment as the “unlawful and total restraint of the liberty of the person.” Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1136 (5th Cir. 2014) (quoting Crossett v. Campbell, 122 La. 659, 48 So. 141, 143 (1908)).

The district court found that probable cause was not required because “Hea-ney was not formally arrested and the only detention that occurred as part of the removal took place after Black removed Heaney from the council chambers when Black was conferring with his supervisor to determine whether Heaney should be placed under arrest.” As an initial matter, Heaney never alleged in his complaint that he was detained by Black after leaving the chambers, and he appeared to base his false arrest claim only on the exchange during the meeting. In his deposition, Heaney admitted that he had not been arrested and was not questioned by Black. Black stated in his deposition that he had taken Heaney downstairs because he wanted to discuss with his supervisor whether Heaney should be arrested. Black explained that this was because security officers can “arrest somebody for disturbing the peace or ask him to leave. And if he doesn’t leave, then [they can] arrest him.” After removing him from the meeting, Black escorted Heaney downstairs, Hea-ney sat outside the office for a brief period while Black consulted with his supervisor, and Heaney then walked to an ambulance without being escorted.

This encounter does not amount to a detention requiring probable cause under Louisiana law. See Harrison, 721 So.2d at 461-64 (finding that officers who detained individuals at a casino to interrogate them about possible cheating were only making an investigatory stop and did not need probable cause). Black’s detention was brief and reasonable. Heaney was also free to walk to the ambulance when it arrived. We therefore affirm the district court’s grant of summary judgment on the false arrest claim.

F. Battery and Negligence Claims Against Black

This Court lacks jurisdiction to review the district court’s denial of summary judgment as to Heaney’s battery and negligence claims against Black. The district court denied summary judgment because it “agree[d] with Heaney’s assertion that the jury must determine whether Black was at fault for injuring Heaney.” Although the district court entered a final judgment pursuant to Rule 54(b), that certification does not grant appellate jurisdiction over a denial of summary judgment. See Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016) (“A district court may certify its judgment as final ... only with respect to claims that have been conclusively resolved.”), petition for cert. filed, — U.S. —, 137 S.Ct. 815, 196 L.Ed.2d 600.

IV. CONCLUSION

In conclusion, we DISMISS Roberts’s appeal on the First Amendment claim because there is a material fact issue as to whether there was viewpoint discrimination. We AFFIRM the district court’s denial of punitive damages. We AFFIRM the district court’s grant of summary judgment in favor of Black on the First Amendment claim and the Fourth Amendment claim. We AFFIRM the district court’s grant of summary judgment in favor of Black on the false arrest claim and DISMISS Black’s cross-appeal on the state tort claims for lack of jurisdiction.

      . The opinion will only refer to Roberts and Blatk, although both Jefferson Parish and the City of Gretna are parties to the appeals.

      . Louisiana’s constitutional protection of free speech mirrors that of the First Amendment, so separate determinations of the state and federal claims are unnecessary. See Winn v. New Orleans City, No. 12-1307, 2015 WL 10713690, at *5 (E.D, La. Jan. 14, 2015). Furthermore, as the district court determined, the Louisiana Supreme Court would recognize the same qualified immunity defense for claims under Article I, Section 7 that federal courts recognize for § 1983 First Amendment claims. Therefore, unless otherwise stated, references to Heaney’s First Amendment claim refer to both the state and federal claims.

      . Roberts argues that the district court was wrong to assume, as a factual matter, that Roberts acted with improper motive because the "test for the application of qualified immunity does not involve a look into the subjective intent of the official, but instead looks at what a reasonable official would know or think.” The Supreme Court addressed the issue of unconstitutional motive in Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). The Court explained that “although evidence of improper motive is irrelevant on the issue of qualified immunity, it may be an essential component of the plaintiff's affirmative case.” Id. at 589, 118 S.Ct. 1584, While Roberts is correct that qualified immunity presents a question of law to be determined by the court, "when qualified immunity depends on disputed issues of fact, those issues must be determined by the jury.” Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006), Indeed, Crawford-El recognized that there is a "wide array of different federal law claims for which an official’s motive is a necessary element” and that there should be no heightened burden on plaintiffs at the summary judgment phase to prove improper motive. Crawford-El, 523 U.S. at 585, 118 S.Ct. 1584.

      . Heaney has waived his Fourth Amendment argument as to Roberts by failing to argue in his original brief that the district court erred in granting Roberts qualified immunity on the Fourth Amendment claim. See United States v. Pompa, 434 F.3d 800, 806 n.4 (5th Cir. 2005) (citing Fed. R. App. P. 28(a)(8)(A)) ("Any issue not raised in an appellant’s opening brief is deemed waived.”). We therefore consider only the Fourth Amendment claim against Black.

      . As Heaney points out in his brief, the district court granted summary judgment on the false arrest claim in favor of both Black and Roberts, but Heaney never asserted the false arrest claim against Roberts.


author: EDITH BROWN CLEMENT, Circuit Judge:

text:
    Jose IRUEGAS-VALDEZ, also known as Jose Iruegas, Petitioner, v. Sally Q. YATES, Acting U.S. Attorney General, Respondent.
    No. 15-60532
    United States Court of Appeals, Fifth Circuit.
    Filed January 23, 2017

      Lance Edward Curtright, Esq., De Mott McChesney Curtright & Armendariz, L.L.P., San Antonio, TX, for Petitioner.

      Lisa Marie Damiano, Esq., Wendy E. Benner-Leon, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for Respondent.
    Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
   EDITH BROWN CLEMENT, Circuit Judge:

Jose Iruegas-Valdez (“Iruegas-Valdez”) appeals the Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“IJ”) denial of his application for withholding of removal and relief under the Convention Against Torture (“CAT”). For the reasons below, we VACATE the decision of the BIA and REMAND -with instructions to apply the appropriate legal standards.

I

In 1975, one-year-old Iruegas-Valdez, a Mexican national, entered the United States with his parents as a lawful permanent resident. In 1997, he was convicted of possession of a controlled substance and removed from the United States. He remained in Mexico for only two days before re-entering the country illegally. Ten years later, he was again removed after being convicted of aggravated assault with a deadly weapon and serving three years imprisonment.

Iruegas-Valdez again re-entered the United States illegally but was quickly apprehended by the Department of Homeland Security (“DHS”). He was convicted of being unlawfully present in the United States and, after completing his sentence, was returned to DHS for removal procedures. He claimed asylum and requested a reasonable fear interview. The asylum officer conducting the interview found Irue-gas-Valdez to be “credible” and to have a reasonable fear of persecution in his home country. The case was then referred to an IJ for determination.

At the hearing, Iruegas-Valdez testified that he is afraid to return to Mexico because two of his cousins, Jose Luis Garza and Hector Moreno, betrayed a drug cartel known as the Zetas. Garza is related to Iruegas-Valdez through his father, Garza’s uncle having married Iruegas-Valdez’s first cousin, Alma Perez Iruegas. Moreno is Iruegas-Valdez’s second cousin on his mother’s side. Both Garza and Moreno had been high-ranking members of the Zetas before they fled to the United States with five million dollars in cash and some of the Zetas’ ledger books and became informants for the Drug Enforcement Administration in 2011. Iruegas-Valdez claimed that the cartel retaliated by massacring members of Garza and Moreno’s family: “The Zetas ... sent 50 trunks [sic] of people to in [sic] the Coahuila, where I was born. They went to town, and they picked up a lot of my family members.” He testified that at least ten of his close family members were killed, including his first cousin Arnoldo Perez Iruegas Velasco, who was beheaded, and Arnoldo’s wife who was eight months pregnant at the time. Irue-gas-Valdez claims that at least 200 people associated with Garza’s and Moreno’s households were executed and that the cartel continues to “look for individuals, family members, as we speak.” Iruegas-Valdez also claimed that local police participated in the massacre.

Iruegas-Valdez provided the IJ with numerous newspaper articles that describe the attacks and specifically list some of his family members among the deceased. Irue-gas-Valdez’s mother, Maria Teresa Alonso Valdez (“Maria Alonso”), also testified at the hearing, and the IJ found her to be credible.

The IJ held that Iruegas-Valdez was statutorily barred from seeking asylum because he had previously been convicted of an aggravated felony. But the IJ found that Iruegas-Valdez was still “eligible to apply for withholding of. removal” because “the nature of the offense, the length of the sentence imposed ..., and the circumstances under which this particular crime occurred does not support a finding that [Iruegas-Valdez] was convicted of a particularly serious crime.”

The IJ then denied Iruegas-Valdez’s application for withholding of removal “[p]ri-marily” because “the Respondent failed to testify credibility [sic].” The IJ also denied Iruegas-Valdez’s application for withholding of removal under CAT.

On appeal, the BIA affirmed the IJ’s decision, specifically holding that Iruegas-Valdez had “not established that [the IJ’s] adverse credibility determination [was] clearly erroneous.” The BIA did not consider whether the additional evidence proffered by Iruegas-Valdez was enough to satisfy his burden of proof independent from his testimony, holding instead that became “the applicant’s testimony is not credible, he has failed to satisfy his burden of proof for withholding of removal.” Irue-gas-Valdez timely appealed.

II

We have “authority to review only an order of the BIA, not the IJ, unless the IJ’s decision has some impact on the BIA’s decision.” Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).

On a petition for review of an order of the BIA, we review factual findings “to determine if they are supported by substantial evidence in the record.” Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). “Under substantial evidence review, we may not reverse the BIA’s factual determinations unless we find not only that the evidence supports a contrary conclusion, but that the evidence compels it. In other words, the alien must show that the evidence was so compelling that no reasonable factfinder could conclude against it.” Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (per curiam) (citations omitted), The BIA’s legal determinations are reviewed de novo. Kompany v. Gonzales, 236 Fed.Appx. 33, 37 (5th Cir. 2007) (per curiam).

Ill

As an initial matter, “8 U.S.C. § 1252(a)(2)(C) limits our jurisdiction to review final removal orders against aliens who are removable by reason of having committed certain criminal offenses,” including aggravated felonies. Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 787 (5th Cir. 2016); see also 8 U.S.C. § 1227(a)(2)(A)(iii). Because Iruegas-Val-dez concedes that he is an aggravated felon, we lack jurisdiction over his challenge to the BIA’s denial of his application for withholding of removal and CAT relief, except to the extent he raises legal or constitutional questions. See 8 U.S.C. § 1252(a)(2)(D). Accordingly, we have no authority to consider Iruegas-Valdez’s argument that the BIA lacked substantial evidence to support its conclusion that his testimony was not credible.

By contrast, Iruegas-Valdez’s contention that he is more likely than not to be persecuted on account of his membership in a particular social group is a legal question we have jurisdiction to review, as is his argument that he is eligible for protection under CAT. However, because the BIA failed to apply the appropriate legal standards, we need not resolve these issues on the merits.

A

Congress has forbidden the Attorney General from removing an alien otherwise subject to deportation “to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The alien carries the burden of proof in these proceedings. Id. § 1231(b)(3)(C). Here, Iruegas-Valdez argues that he has satisfied that burden of proof.

The government contends that Iruegas-Valdez’s argument that—even ignoring the applicant’s own testimony—he has established “that it is more likely than not that he will be persecuted on account of his membership in a social group consisting of ‘family of Hector Moreno and Jose Luis Garza,’ is not properly before this Court.” We agree. The BIA based its denial of the applicant’s petition for withholding of removal solely on the IJ’s credibility determination: it did not consider the testimony of Maria Alonso or the newspaper articles submitted to the IJ. As such, it did not decide whether “family members of Moreno and Garza” constitute a particular social group or whether Iruegas-Valdez’s fear of persecution is “on account of’ his membership in that particular social group. On the contrary, the BIA explicitly held that “[g]iven the Immigration Judge’s adverse credibility finding, [it] need not address the respondent’s challenge to the Immigration Judge’s determination that the other proposed particular social group, family members of [Moreno and Garza], is not valid.”

The Supreme Court addressed an almost identical situation in INS v. Orlando Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). In that case, the BIA “determined that respondent Fredy Orlando Ventura failed to. qualify for . .•. statutory protection because any persecution that he faced when he left Guatemala ... was not ‘on account of a ‘political opinion.’ ” Id. at 13, 123 S.Ct. 353 (emphases omitted). The Ninth Circuit reversed but “went on to consider an alternative argument that the Government had made before the Immigration Judge” but which had not been considered by the BIA itself. Id.

The Supreme Court determined that this was a violation of “well-established principles of administrative law.” Id. at 16, 123 S.Ct. 353. A “ ‘judicial judgment cannot be made to do service for an administrative judgment.’ Nor can an ‘appellate court ... intrude upon the domain which Congress has exclusively entrusted to an administrative agency,’ ” Id. (alteration in original) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943)). As such, “a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” Id.

Here, as in Ventura, the BIA specifically refused to consider an alternative argument that had been raised before the IJ— namely that the evidence external to Irue-gas-Valdez’s testimony established that removal to Mexico would put his life in jeopardy because he was a family member of Moreno and Garza. Congress has explicitly delegated such determinations to the Attorney General, not the courts. 8 U.S.C. § 1231(b)(3)(A). It would therefore be a violation of “well-established principles of administrative law” for us to reach this issue. Ventura, 537 U.S. at 16, 123 S.Ct. 353.

B

We likewise decline to consider whether Iruegas-Valdez is eligible for relief under CAT because the BIA failed to apply the appropriate legal standard. An applicant for withholding of removal under CAT bears the burden of proving “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). “Torture” includes “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as ... punishing him ... for an act he ... or a third person has committed or is suspected of having committed, or intimidating or coercing him ... or a third person.” Id. § 1208.18(a)(1). It includes “intentional infliction or threatened infliction of severe physical pain or suffering,” as well as “threat[s] of imminent death.” Id. § 1208.18(a)(4).

To qualify under CAT, the pain or suffering in question must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Id. § 1208.18(a)(1). A public official acquiesces to torture when he or she has prior “awareness of such activity and thereafter breaches] his or her legal responsibility to intervene to prevent such activity.” Id. § 1208.18(a)(7). An applicant may satisfy his burden of proving acquiescence by demonstrating “a government’s willful blindness of torturous activity.” Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2010) (citing Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 354 (5th Cir. 2002)).

“Thus relief under the [CAT] requires a two part analysis—first, is it more likely than not that the alien will be tortured upon return to his homeland; and second, is there sufficient state action involved in that torture.” Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014) (citing Tamara-Gomez v. Gonzales, 447 F.3d 343, 350-51 (5th Cir. 2006)).

Failing to clearly bifurcate its CAT analysis, the BIA focused primarily on the second prong, concluding that the applicant’s evidence did not prove that the government would torture him: “while corruption and increased levels of gang criminality exists [in Mexico], the government is actively fighting the drug cartels.” In reaching this conclusion, the BIA seemed to adopt the analysis of the IJ who listed various steps the government had taken since the Allende massacre to stamp out the Zetas and their government lackeys: increasing the number of federal troops, dismissing the entire municipal police force, and arresting two local police officers for their alleged involvement in the attack. The IJ then concluded that “[t]hese kinds of actions do not indicate that the Mexican government has simply looked the other way and willfully permitted the Zetas to act with impunity.”

But “willful blindness” is not the only way to prove sufficient state action. The regulations specifically list a number of different avenues which the BIA failed to consider: torture occurs whenever severe physical or mental pain is “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). “[Government acquiescence need not necessarily be an officially sanctioned state action; instead, an act is under color of law when it constitutes a misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Garcia, 756 F.3d at 891-92. “[A]cts motivated by an officer’s personal objectives are ‘under col- or of law* when the officer uses his official capacity to further those objectives.” Id. at 892 (citing Marmorato v. Holder, 376 Fed.Appx. 380, 385 (5th Cir. 2010) (per curiam)). Nor does our precedent require that the public official in question “be the nation’s president or some other official at the upper echelons of power. Rather ... the use of official authority by low-level officials, such a[s] police officers, can work to place actions under the color of law even where they are without state sanction.” Id. (alterations in original) (quoting Ramirez-Peyro v. Holder, 574 F.3d 893, 901 (8th Cir. 2009)).

Iruegas-Valdez has provided evidence that police officers were active participants in the Allende massacre. He also provided evidence that the governor of Coahuila, Humberto Moreira, was a close ally of the Zetas and specifically allowed the attack. But neither the IJ nor the BIA considered whether this evidence established that the applicant was more likely than not to be tortured “by” or with the “consent of’ government officials. This constituted “error regarding what [Iruegas-Valdez] was required to show to obtain CAT protection.” Id. at 893. Thus, we will “vacate the BIA’s decision and remand for the agency to properly consider this evidence under the under color of law legal standard.” Id.

IV

In conclusion, we lack jurisdiction to review the BIA’s credibility determination. With respect to the remaining issues, we VACATE the decision of the BIA and REMAND for consideration pursuant to the appropriate legal standards as detailed above.


author: STEPHEN A. HIGGINSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Glay H. COLLIER, II, Defendant-Appellant
    No. 16-30523
    Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed January 24, 2017
    Carol Mignonne Griffing, Assistant U.S. Attorney, Brandon Bonaparte Brown, Cytheria Dawn Jernigan, Esq., Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Louisiana, Shreveport, LA, for Plaintiff-Appellee.
    Bradley Loy Drell, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, E.J. Hurst, II, Attorney, Law Office of E.J. Hurst, II, Durham, NC, for Defendant-Appellant.
    Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

Glay Collier, II, appeals the 34-month term of imprisonment imposed following his guilty plea conviction of bankruptcy fraud. He argues that the district court procedurally erred when it enhanced his sentence under United States Sentencing Guideline § 2Bl.l(b)(E) based on the intended loss resulting from his improper collection of and attempted improper collection of repayment for filing fees from both his clients and the Chapter 13 Trustee. The Government asserts that Collier invited the error or waived his right to challenge the error.

The presentence report (PSR) initially increased Collier’s offense level by ten levels pursuant to U.S.S.G. § 2Bl.l(b)(l)(F) based on the probation officer’s determination that the offense involved $155,112 in intended losses. Collier objected, arguing that the calculation should include only the initial payments made to the Shreveport division of the Bankruptcy Court as part of its filing fee installment plan. He asserted that the total intended loss for his offense was no more than $94,404 and that the loss warranted an eight-level adjustment.

Although the probation officer pointed out in the second addendum to the PSR that a loss of $94,404 would warrant only a six-level increase, Collier ultimately agreed with the Government and the district court at sentencing that an eight-level adjustment was appropriate for intended loss in his case. Based on that admission, the district court found that Collier’s objection regarding intended loss was moot.

On appeal, Collier again asserts that his offense involved only $94,404 in intended losses, but now contends that the loss warranted only a six-level increase in his offense level. He contends that his defense attorney erroneously referenced an older version of the Sentencing Guidelines Manual before agreeing that $94,404 in intended loss warranted an eight-level increase.

We agree with the Government that Collier has waived the right to challenge his loss calculation. “[Wjaiver is the ‘intentional relinquishment or abandonment of a known right.’ ” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); see also United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). At sentencing, Collier intentionally forwent his previously raised challenge to the loss calculation when he repeatedly conceded that the eight-level increase for intended loss was appropriate. Because Collier’s challenge is waived, it is unreviewable. United States v. Rodriguez, 602 F.3d 346, 350 (5th Cir. 2010).

In any event, Collier would not prevail even if we reviewed the district court’s sentencing decision for plain error. See Puekett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009); United States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir. 2006) (reviewing an arguably invited error for plain error “out of an abundance of caution”). He has not shown that the district court failed to make a reasonable estimate of the loss.

The judgment of the district court is AFFIRMED.


author: RONALD LEE GILMAN, Circuit Judge.

text:
    Salvatore LOVANO, Petitioner, v. Loretta LYNCH, Attorney General, Respondent.
    No. 16-3245
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: January 20, 2017
    ON BRIEF: Margaret Wong, Margaret Wong & Associates LLC, Cleveland, Ohio, for Petitioner. Jesse M. Bless, Liza S. Murcia, United States Department of Justice, Washington, D.C., for Respondent.
    Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.
   OPINION

RONALD LEE GILMAN, Circuit Judge.

Salvatore Lovano is a native and citizen of Canada who was admitted to the United States as a lawful permanent resident (LPR) in 1973. In 2015, an Immigration Judge (IJ) ordered that Lovano be removed from the United States for violating 8 U.S.C. § 1227(a)(2)(A)(ii), a statute that authorizes the deportation of “[a]ny alien ... convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.” The Board of Immigration Appeals (BIA) affirmed the IJ’s order. Lovano now petitions for review of the BIA’s opinion, arguing that his 2012 conviction for aggravated assault in Ohio is not a crime involving moral turpitude. For the reasons set forth below, we DENY Lovano’s petition for review.

I. BACKGROUND

In 1993, twenty years after Lovano was admitted to the United States as an LPR, he was convicted in Cleveland, Ohio of both attempting to pass bad checks, in violation of Ohio Revised Code §§ 2923.02 and 2913.11, and theft, in violation of Ohio Revised Code § 2913.02. What was then known as the Immigration and Naturalization Service sought to remove Lovano on the basis that he violated 8 U.S.C. § 1227(a)(2)(A)(ii). The following year, however, Lovano was granted a waiver of deportability under a now-repealed section of the Immigration and Nationality Act (INA). 8 U.S.C. § 1182(c) (repealed).

Lovano was subsequently convicted in 2012 in Cleveland of aggravated assault, in violation of Ohio Revised Code § 2903.12. The Department of Homeland Security (DHS) issued Lovano a Notice to Appear (NTA) the following year. Lovano was once again charged with violating 8 U.S.C. § 1227(a)(2)(A)(ii). In particular, DHS claimed that Lovano’s 1993 and 2012 convictions were all for crimes involving moral turpitude.

A series of protracted immigration proceedings, a detailed recounting of which is unnecessary to our decision, ensued from 2013 to 2015. After the dust settled, the BIA affirmed an IJ’s ruling that Lovano’s prior convictions for attempting to pass bad checks and for aggravated assault were for crimes involving moral turpitude. (The IJ concluded that Lovano’s conviction for theft was not for a crime involving moral turpitude for reasons neither relevant nor contested here.) In its order, the BIA concluded that Lovano’s aggravated-assault conviction was for a crime involving moral turpitude because it “require[d] proof of intent and the causing of serious physical harm.” Lovano now petitions for review of the BIA’s decision, his sole argument being that his conviction for aggravated assault in Ohio is not for a crime involving moral turpitude.

II. DISCUSSION

A. Jurisdiction

Although the INA generally deprives us of jurisdiction to review removal orders relating to aliens deemed removable for having committed a crime involving moral turpitude, we nonetheless retain “limited jurisdiction to review questions of law and constitutional claims arising from such orders.” Ruiz-Lopez v. Holder, 682 F.3d 513, 516 (6th Cir. 2012) (citing 8 U.S.C. § 1252(a)(2)(D)). The only issue raised in Lovano’s petition is that aggravated assault in Ohio is not a crime involving moral turpitude within the meaning of 8 U.S.C. § 1227(a)(2)(A)(ii), and thus may not serve as a basis for his removal. Being purely a question of law, we have jurisdiction over Lovano’s petition.

B. Standard of review

“The BIA’s construction of ambiguous statutory provisions—such as the term ‘crime involving moral turpitude’—is generally entitled to Chevron deference.” Reyes v. Lynch, 835 F.3d 556, 559 (6th Cir. 2016) (quoting Ruiz-Lopez, 682 F.3d at 516). Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we must uphold the BIA’s interpretation of an ambiguous federal statute unless the interpretation is “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 843-44,104 S.Ct. 2778. The BIA’s interpretation of a state criminal statute, on the other hand, is not entitléd to deference and is reviewed de novo. Reyes, 835 F.3d at 559.

C. Lovano’s aggravated-assault conviction

Lovano has not disputed that his conviction for attempting to pass bad checks is a crime involving moral turpitude. The single and dispositive issue in his petition, then, is whether aggravated assault in Ohio is such a crime. If it is, then Lovano has been “convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct,” making him subject to removal. See 8 U.S.C. § 1227(a)(2)(A)(ii).

“The term ‘crime involving moral turpitude’ is not defined in the INA or by agency regulations.” Reyes, 835 F.3d at 560 (quoting Yeremin v. Holder, 738 F.3d 708, 714 (6th Cir. 2013)). But the BIA has held that “a criminal offense involves ‘moral turpitude’ if the relevant statute defines the offense in such a manner that it necessarily entails conduct on the part of the offender that is inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.” In re Kochlani, 24 I. & N. Dec. 128, 129 (BIA 2007). The BIA has also held that “an offense must have two essential elements to constitute a crime involving moral turpitude: a culpable mental state and reprehensible conduct,” Matter of Medina, 26 I. & N. Dec. 79, 82 (BIA 2013). Moreover, “[c]rimes committed intentionally or knowingly have historically been found to involve moral turpitude.” In re Solon, 24 I. & N. Dec. 239, 240 (BIA 2007).

With regard to statutes prohibiting assault and battery, the BIA has observed that assault “may or may not involve moral turpitude,” In re Fualaau, 211. & N. Dec. 475, 477 (BIA 1996), and that the inquiry must focus on “an assessment of both the state of mind and the level of harm required to complete the offense,” Solon, 24 I. & N. Dec. at 242. Simple assault and battery—which typically has elements of general intent and a mere touching—is usually not considered a crime involving moral turpitude. Id. at 241-42. On the other hand, assault-and-battery offenses “that necessarily involve[ ] the intentional infliction of serious bodily injury ... have been held to involve moral turpitude because such intentionally injurious conduct reflects a level of immorality that is greater than that associated with a simple offensive touching.” In re Sanudo, 23 I. & N. Dec. 968, 971 (BIA 2006) (emphasis in original).

We apply what has become known as the “categorical approach” when determining whether a state assault-and-battery statute fits the above description of a crime involving moral turpitude. Pursuant to the categorical approach, “we consider not whether the actual conduct constitutes a crime involving moral turpitude, but whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude.” Serrato-Soto v. Holder, 570 F.3d 686, 689 (6th Cir. 2009) (internal quotation marks omitted). We must focus solely on the elements of the statute at issue, and should generally refrain from consideration of the facts underlying the conviction. See id. at 690. Consideration of the facts, under what is generally known as the “modified categorical approach,” is appropriate only if the statute is divisible (that is, effectively lists different crimes), and then solely for the limited purpose of determining which of those crimes the defendant was found guilty of committing. See, e.g., Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) (describing the operation of the modified categorical approach in the context of a burglary statute).

The parties agree that the statute at issue in this petition, Ohio Revised Code § 2903.12, is indivisible and is subject only to the categorical approach. Ohio Revised Code § 2903.12(A)(1) provides as follows:

No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly ... [c]ause serious physical harm to another or to another’s unborn[.]

The Supreme Court of Ohio has observed that a conviction under this statute requires a showing that the defendant knowingly caused serious physical harm. State v. Brown, 119 Ohio St.3d 447, 896 N.E.2d 149, 154-55 (2008). “Serious physical harm” is defined by the Ohio Revised Code as including, among other types of serious physical injury, “any physical harm that carries a substantial risk of death.” Ohio Rev. Code § 2901.01(A)(5)(b). By its very terms, Ohio Revised Code § 2903.12(A)(1) is an “assault and battery offense[] that necessarily involve[s] the intentional infliction of serious bodily injury.” See Sañudo, 23 I. & N. Dec, at 971 (emphasis in .original). It consequently is a crime involving moral turpitude.

Lovano advances three principal arguments against this conclusion. First, Lova-no attempts to draw a distinction between “serious physical harm” and “serious physical injury,” arguing that “[pjhysical harm is less severe than physical injury and ... this is a distinction ■ that makes a difference.” But Lovano cites no authority in support of this argument, instead referring to a section of the Ohio Revised Code that does not appear to exist. Our review of the Ohio Revised Code has failed to reveal any definition of “physical injury,” let alone any indication that Ohio law treats “harm” and “injury” differently in any way. Because the statutory definition of “serious physical harm” provided at Ohio Revised Code § 2901.01(A)(5)(b) appears to .us indistinguishable from serious physical injury, we reject Lovano’s argument.

Second, Lovano argues that the statute’s mens rea requirement of “knowingly” is an insufficiently culpable mental state to trigger a finding of moral turpitude. But crimes have historically involved moral turpitude if they have a mens rea element of knowledge. Solon, 24 I. & N. Dec. at 240. The BIA has in fact concluded that even the lower mental state of “recklessness” is sufficient when coupled with, for example, a substantial risk of imminent death. See Matter of Leal, 26 I. & N. Dec. 20, 24 (BIA 2012). If recklessness can constitute a sufficiently high mental state, then knowledge must a fortiori be considered sufficient. We accordingly decline to accept Lovano’s argument that “knowingly” is an insufficient mental state to trigger a finding of moral turpitude.

Lovano’s third and- final argument is that the presence of the “provocation” language in the aggravated-assault statute should foreclose the conclusion that a violation of the statute is categorically a crime involving moral turpitude. He contends that we should consider the fact that the statute necessarily entails provocation and thereby mitigates the assault from a more serious felony to the fourth degree felony at issue here.

By Lovano’s own admission, however, the provocation portion of the statute is not an element of the crime. It simply has the effect of mitigating a more serious aggravated assault to a lesser degree of aggravated assault, just as a provocation can mitigate murder to a lesser degree of homicide, such as manslaughter. Contrary to Lovano’s assertions, provocation does not have any effect on either of the two elements that the government must prove in order to obtain a conviction: (1) to knowingly cause (2) serious physical harm to another person. And these are the only two elements that the BIA has considered relevant in its interpretation of the phrase “crime involving moral turpitude” in the context of assault-and-battery statutes. See Sañudo, 23 I. & N. Dec. at 971. Just because Lovano was provoked, in other words, does not negate either the mens rea or the serious-injury elements of the offense of aggravated assault.

In sum, Lovano has been “convicted of two ... crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.” See 8 U.S.C. § 1227(a)(2)(A)(ii). He is therefore subject to removal.

III. CONCLUSION

For all of the reasons set forth above, we DENY Lovano’s petition for review.