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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10801
Non-Argument Calendar
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Agency No. A070-449-510
ALBAN LUKAJ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 26, 2019)
Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Alban Lukaj, a native and citizen of Albania who became a lawful
permanent resident of the United States, petitions for review of an order affirming
the denial of his applications for asylum, 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i),
for withholding of removal,
id. § 1231(b)(3)(B)(ii), and for cancellation of
removal,
id. § 1229b(a). Lukaj challenges the finding that his conviction for
aggravated battery with a firearm, Fla. Stat. §§ 784.045(1), 775.087(2), qualifies as
an aggravated felony, 8 U.S.C. § 1101(a)(43)(F), under the residual cause of the
definition of crime of violence, 18 U.S.C. § 16(b), that renders him ineligible for
relief from removal. After Lukaj filed his petition, we stayed briefing until the
Supreme Court decided Sessions v. Dimaya,
138 S. Ct. 1204 (2018). We grant in
part Lukaj’s petition challenging the denial of his applications for relief for
removal and remand to the Board of Immigration Appeals. Lukaj also petitioned us
to review the denial of his motion to recuse the immigration judge, but we dismiss
that part of his petition for lack of jurisdiction.
I. BACKGROUND
In 2015, the Department of Homeland Security charged Lukaj, a refugee
who became a lawful permanent resident in 1993, as removable. The notice to
appear charged Lukaj for violating a law relating to a controlled substance, 8
U.S.C. § 1227(a)(2)(B)(i); committing an aggravated felony consisting of an
offense relating to the illicit trafficking in a controlled substance,
id.
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§ 1227(a)(2)(A)(iii); violating a law regarding possessing a firearm,
id.
§ 1227(a)(2)(C); and committing an aggravated felony constituting a crime of
violence,
id. § 1227(a)(2)(A)(iii). The Department based its charges on Lukaj’s
pleas of guilty in 2009 to conspiring to traffic and for trafficking more than 400
grams of methylenedioxymethamphetamine, Fla. Stat. § 893.135(1)(k), (5), that
resulted in a sentence of four years of imprisonment and on his plea of guilty in
2010 to aggravated battery,
id. § 784.045(1), for which he received an enhanced
sentence of ten years of imprisonment based on his use of a firearm during the
crime,
id. § 775.087(2).
An immigration judge found that Lukaj was removable based on his prior
convictions for aggravated battery and for possessing a firearm. See
id.
§ 1227(a)(2)(A)(iii), (a)(2)(C). The immigration judge granted Lukaj leave to file
an application for relief from removal. Lukaj moved the immigration judge to
reconsider and to dismiss the charge of removability based on his conviction for
aggravated battery. Lukaj argued that the residual clause of the statute, 18 U.S.C.
§ 16(b), was unconstitutional, his prior conviction no longer qualified as a crime of
violence after Johnson v. United States,
135 S. Ct. 2551 (2015), and his prior
conviction did not satisfy the elements clause of the statute, 18 U.S.C. § 16(a). The
immigration judge denied Lukaj’s motion.
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Lukaj filed applications for asylum and withholding of removal under the
Immigration and Nationality Act and the United Nations Convention Against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 8
U.S.C. §§ 1158(b), 1231(b)(3), and for cancellation of removal,
id. § 1229b(a).
After a hearing, the immigration judge denied Lukaj’s applications. The
immigration judge found that Lukaj was removable. The immigration judge
determined that Lukaj’s convictions for conspiring to traffic and for trafficking in
methylenedioxymethamphetamine, Fla. Stat. § 893.135(1)(k), (5), constituted illicit
trafficking in a controlled substance based on the large quantity of drugs involved,
8 U.S.C. § 1227(a)(2)(A)(iii), and qualified as aggravated felonies,
id.
§ 1101(a)(43)(B). The immigration judge also determined that Lukaj’s conviction
for aggravated battery qualified as a crime of violence under the residual clause of
the statute, 18 U.S.C. § 16(b), but not under its elements clause,
id. § 16(a).
Additionally, the immigration judge determined that Lukaj’s convictions for drug
offenses constituted violations of a law relating to a controlled substance, 8 U.S.C.
§ 1227(a)(2)(B)(i), and that his “conviction for aggravated battery with a firearm
[was] categorically a firearm offense” for which he was removable,
id.
§ 1227(a)(2)(C).
The immigration judge also found that Lukaj failed to qualify for relief from
removal and ordered him removed to Serbia, or in the alterative, to Albania. The
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immigration judge determined that Lukaj was ineligible for cancellation of
removal based on the aggravated felonies of conspiring to traffic and of trafficking
in methylenedioxymethamphetamine and of aggravated battery, see
id. § 1229b(a),
and that those three particularly serious crimes barred Lukaj from seeking asylum,
see
id. § 1158(b)(2)(A)(ii), (b)(2)(B)(i). Because, “for purposes of removal, an
aggravated felony which incurs an aggregate term of imprisonment of at least five
years is a per se [particularly serious crime],” the immigration judge determined
that Lukaj’s “ten-year imprisonment sentence for aggravated battery with a
firearm” rendered him ineligible for withholding of removal. See 8 C.F.R.
§ 1208.16(d)(2). The immigration judge also denied Lukaj’s application for
deferral of removal under the Convention for failure to prove he suffered past
torture that “evinc[ed] a likelihood of future torture” and “to show that public
officials would inflict or acquiesce to torture at his expense.” See
id.
§ 1208.18(a)(2).
Lukaj appealed to the Board, and the Department moved for summary
affirmance. The Department “submit[ted] that the Immigration Judge reached the
correct decision” and “incorporate[d] and adopt[ed] the order of March 15, 2016,
by [the] Immigration Judge . . . in its entirety.” The Department expressed a
“belie[f] [that] the [immigration judge] [was] correct in each and every one of her
factual findings and legal conclusions . . . .”
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The Board dismissed Lukaj’s appeal. The Board rejected Lukaj’s argument
that the immigration judge should have recused, and the Board stated that Lukaj
did not challenge the finding that he was removable for violating a law relating to a
controlled substance. “Like the Immigration Judge, [the Board] conclude[d] that
[Lukaj’s] 2010 Florida conviction for aggravated battery [was] an aggravated
felony that render[ed] him ineligible for asylum, cancellation of removal, and
withholding of removal” because it “qualifie[d] categorically as a crime of
violence under 18 U.S.C. § 16(b).” The Board found “it unnecessary to decide
whether the imposition of [the firearm] enhancement ma[de] [Lukaj’s] aggravated
battery offense a ‘firearm offense’ under section 237(a)(2)(C) of the Act” and
“express[ed] no present opinion as to whether his 2009 conviction[s] w[ere] also
for an aggravated felony under section 101(a)(43)(B).”
II. STANDARD OF REVIEW
“We review the decision of the Board and the decision of the Immigration
Judge to the extent that the Board expressly adopted the opinion of the
Immigration Judge.” Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 947–48 (11th Cir.
2010). We review de novo whether a petitioner’s conviction qualifies as an
“aggravated felony.” Accardo v. U.S. Att’y Gen.,
634 F.3d 1333, 1335 (11th Cir.
2011). We also review de novo “constitutional challenges, including alleged due
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process violations.” Lapaix v. U.S. Att’y Gen.,
605 F.3d 1138, 1143 (11th Cir.
2010).
III. DISCUSSION
Lukaj argues that he is eligible for relief from removal because none of his
prior convictions qualify as an aggravated felony and that his case should be
assigned to another immigration judge. The Attorney General responds that we
should remand for the Board to consider whether Lukaj’s conviction for
aggravated battery qualifies as an aggravated felony under the elements clause of
the definition of crime of violence, 18 U.S.C. § 16(a), and if not, to reassess his
eligibility for relief from removal. Because Dimaya declared void for vagueness
the statutory provision used to classify Lukaj’s conviction as an aggravated felony,
we grant the part of his petition that challenges the denial of his applications for
asylum, withholding of removal, and cancellation of removal. But we dismiss
Lukaj’s petition to the extent that he challenges the denial of his motion for recusal
of the immigration judge.
A. In the Light of Dimaya, We Remand for the Board to Address Whether
Villalobos is Eligible for Asylum or Cancellation of Removal.
Lukaj is a lawful permanent resident of the United States, but he is
removable, among other reasons, if he “is convicted of an aggravated felony.” 8
U.S.C. § 1227(a)(2)(A)(iii). A conviction qualifies as an aggravated felony if it is
“a crime of violence (as defined in section 16 of Title 18 . . .) for which the term of
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imprisonment [is] at least one year.”
Id. § 1101(a)(43)(F). To constitute a “crime of
violence” a conviction can involve either “an offense that has an element the use,
attempted use, or threatened use of physical force against the person” or an
“offense that is a felony and that, by its nature, involves a substantial risk that
physical force against the person may be used in the course of committing the
offense.” 18 U.S.C. § 16.
While Lukaj’s petition was pending, the Supreme Court held that the
residual clause of the definition of crime of violence,
id. § 16(b), is void for
vagueness.
Dimaya, 138 S. Ct. at 1210. In Dimaya, the Supreme Court concluded
that, like the residual clause that defined the term “violent felony” in the Armed
Career Criminal Act, see Johnson,
135 S. Ct. 2551, section 16(b) was
impermissibly vague because it “call[ed] for a [sentencing] court to identify a
crime’s ‘ordinary case’ in order to measure [its] risk” and the provision created
“uncertainty about the level of risk that makes a crime ‘violent.’” Dimaya, 138 S.
Ct. at 1215. Because the Supreme Court invalidated section 16(b), that provision
cannot serve as the basis for classifying Lukaj’s conviction as a crime of violence
and as an aggravated felony that makes him ineligible for relief from removal.
We grant that part of Lukaj’s petition that challenges the denial of his
applications for asylum, withholding of removal, and cancellation of removal, and
we remand to the Board. “Generally speaking, a court of appeals should remand a
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case to an agency for decision of a matter that statutes place primarily in agency
hands.”
Accardo, 634 F.3d at 1339 (quoting I.N.S. v. Orlando Ventura,
537 U.S.
12, 16 (2002)). The Board should be given the first opportunity to decide how to
classify Lukaj’s conviction for aggravated battery and to determine whether he is
eligible for asylum, withholding of removal, and cancellation of removal.
B. We Lack Jurisdiction to Review the Denial of Lukaj’s Motion for the
Immigration Judge to Recuse.
Lukaj argues that the immigration judge violated his right to due process by
refusing to recuse, but “[w]here a constitutional claim has no merit . . . we do not
have jurisdiction.” Gonzalez–Oropeza v. U.S. Att’y Gen.,
321 F.3d 1331, 1333
(11th Cir. 2003). To prevail on his claim, Lukaj had to prove that “[he] was
deprived of liberty without due process of law and that the purported errors caused
[him] substantial prejudice” such that, “in the absence of the alleged violations, the
outcome of the proceeding would have been different.”
Lapaix, 605 F.3d at 1143.
Lukaj cannot prove he was substantially prejudiced by the immigration judge’s
refusal to recuse. Lukaj concedes that he is removable, and based on the precedent
in effect when the immigration judge entered her order of removal, Lukaj’s
conviction for aggravated battery with a firearm qualified as an aggravated felony
that made him ineligible for relief from removal. Lukaj has not raised a colorable
constitutional claim because the outcome of his removal proceeding was
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unaffected by the immigration judge’s alleged hostility. We dismiss the part of
Lukaj’s petition that challenges the denial of his motion for recusal.
IV. CONCLUSION
We GRANT IN PART and DISMISS IN PART Lukaj’s petition for
review.
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