Manuel Cano v. U.S. Attorney General , 709 F.3d 1052 ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15918
________________________
Agency No. A075-853-701
MANUEL CANO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 15, 2013)
Before TJOFLAT, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Manual Cano, a lawful permanent resident, petitions for review of the
decision of the Board of Immigration Appeals (BIA) affirming the Immigration
Judge’s (IJ) order that Cano be deported because he is an alien convicted of two or
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more crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii) (2008).1
Cano concedes that in 2010 he was convicted of a crime involving moral turpitude.
The question before us is whether his 2003 Florida conviction for resisting an
officer with violence, in violation of Fla. Stat. § 843.01, is also a crime involving
moral turpitude.
I. BACKGROUND
Cano, a Bolivian native and citizen, entered the United States in March 1990
as a nonimmigrant. Nine years later, his status was adjusted to that of a lawful
permanent resident. In 2003 and 2010, Cano pleaded guilty to certain crimes. In
early 2011, the Department of Homeland Security (DHS) notified him that he was
being charged with removal under § 1227(a)(2)(A)(ii) as an alien convicted of two
or more crimes involving moral turpitude. One of the predicate offenses was Mr.
Cano’s 2003 conviction for resisting an officer with violence under Fla. Stat.
§ 843.01.
Cano argued before the IJ that he should not be deported because a violation
of Fla. Stat. § 843.01 is not a crime involving moral turpitude. On June 21, 2011,
the IJ determined that the Florida offense of resisting arrest with violence is a
crime involving moral turpitude and ordered that Cano be deported. On November
1
Title 8, Section 1227(a)(2)(A)(ii) of the U.S. Code provides that “[a]ny alien who at any time
after admission is convicted of two or more crimes involving moral turpitude, not arising out of a
single scheme of criminal misconduct, regardless of whether confined therefor and regardless of
whether the convictions were in a single trial, is deportable.”
2
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21, 2011, the BIA also ruled that Fla. Stat. § 843.01 is a crime involving moral
turpitude and dismissed Cano’s appeal. Cano then petitioned for our review.
“We have jurisdiction to review the ‘constitutional claims or questions of
law raised upon petition for review,’ including the legal questions of whether [an
alien’s conviction] qualifies as a ‘crime involving moral turpitude.’” Fajardo v.
United States Att’y Gen., 659 F.3d 1303, 1307 n.3 (11th Cir. 2011) (quoting 8
U.S.C. § 1252(a)(2)(D)). We review questions of statutory interpretation de novo,
but defer to the interpretation of the BIA if it is reasonable. Sosa-Martinez v.
United States Att’y Gen., 420 F.3d 1338, 1341 n.2 (11th Cir. 2005).
II. DISCUSSION
The term “moral turpitude” is not defined by statute. However, we have
observed that it involves “[a]n act of baseness, vileness, or depravity in the private
and social duties which a man owes to his fellow men, or to society in general,
contrary to the accepted and customary rule of right and duty between man and
man.” United States v. Gloria, 494 F.2d 477, 481 (5th Cir. 1974). 2 “Whether a
crime involves the depravity or fraud necessary to be one of moral turpitude
depends upon the inherent nature of the offense, as defined in the relevant statute,
rather than the circumstances surrounding a defendant’s particular conduct.” Itani
v. Ashcroft, 298 F.3d 1213, 1215–16 (11th Cir. 2002). Thus, in deciding whether a
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), this Court adopted as
binding precedent all decisions of the former Fifth Circuit prior to October 1, 1981.
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particular offense constitutes a crime involving moral turpitude, we apply the
categorical approach and look to the statutory definition of the crime rather than
the underlying facts of the conviction. See Fajardo, 659 F.3d at 1305. 3
The statutory definition of Fla. Stat. § 843.01 provides in relevant part
“[w]hoever knowingly and willfully resists, obstructs, or opposes any [officer] . . .
by offering or doing violence to the person of such officer or legally authorized
person, is guilty of a felony of the third degree . . . .” Fla. Stat. § 843.01. The
offense requires that a defendant “(1) knowingly (2) resisted, obstructed, or
opposed a law enforcement officer (3) who was in the lawful execution of any
legal duty (4) by offering or doing violence to his person.” Yarusso v. State, 942
So. 2d 939, 942 (Fla. 2d DCA 2006).
Cano argues that Fla. Stat. § 843.01 is not a crime involving moral turpitude
because the statute does not require intentional violence against an officer.
Instead, he asserts that the element of intentionality applies only to resisting arrest.
Cano’s argument runs counter to the precedent of our court and the Florida
Supreme Court. In Frey v. State, the Florida Supreme Court held that Fla. Stat.
§ 843.01 is a general intent crime. 708 So. 2d 918, 919–20 (Fla. 1998). We have
interpreted Frey to mean that the intent requirement in Fla. Stat. § 843.01 applies to
3
Under the categorical approach, “we analyze whether the least culpable conduct necessary to
sustain a conviction under the statute meets the standard of a crime involving moral turpitude.”
Keungne v. United States Att’y Gen., 561 F.3d 1281, 1284 n.3 (11th Cir. 2009).
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both resisting arrest and the offer or use of violence. In United States v. Romo-
Villalobos, we explained that the “argument that no intent is required for the
‘offering or doing violence’ element of the crime runs directly contrary to the
language of Frey, which held that the entire crime is one of general intent.” 674
F.3d 1246, 1250 n.4 (11th Cir. 2012). Thus, in Romo-Villalobos, we rejected the
argument that the intent requirement in Fla. Stat. § 843.01 applies only to resisting
arrest.
We also note that the Florida courts have distinguished Fla. Stat. § 843.01from other crimes against law enforcement by explaining that it is a crime
requiring violent force. Romo-Villalobos, 674 F.3d at 1248–51.4 For example, the
Florida Supreme Court has explained that battery on a law-enforcement officer
requires “mere unwanted touching” which “may, but need not, involve the use or
threat of physical force or violence.” State v. Hearns, 961 So. 2d 211, 213–15 (Fla.
2007) (quotation marks omitted). By contrast, “resisting an officer with violence
to his or her person, in violation of section 843.01, differs significantly from
4
In Romo-Villalobos, we held that Fla. Stat. § 843.01 is a crime of violence for purposes of the
sentencing guidelines. 674 F.3d at 1249. In so doing, we applied the categorical approach,
looked to the Florida court’s interpretation of the elements of the offense, and decided as a
matter of federal law that Fla. Stat. § 843.01 is a crime of violence. Id. at 1248-49. In deciding
whether Fla. Stat. § 843.01 is a crime involving moral turpitude, we similarly apply the
categorical approach and look to the statutory definition of the crime, including the elements of
the offense. See Sosa-Martinez, 420 F.3d at 1341. Although our finding in Romo-Villalobos was
specific to the sentencing guidelines, in deciding whether § 843.01 involves moral turpitude, we
find instructive that Florida courts “have concluded that violence is a necessary element of
§ 843.01.” Romo-Villalobos, 674 F.3d at 1249.
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simple battery on a law enforcement officer” because offering or doing violence
involves the use or threat of physical force. Harris v. State, 5 So. 3d 750, 751 (Fla.
1st DCA 2009).
Thus, because Fla. Stat. § 843.01 requires intentional violence against an
officer, it criminalizes “conduct [that] exhibits a deliberate disregard for the law,
which we consider to be a violation of the accepted rules of morality and the duties
owed to society.” Matter of Danesh, 19 I. & N. Dec. 669, 671 (BIA 1988).
Therefore, we conclude that Fla. Stat. § 843.01 is a crime involving moral
turpitude. Because Cano was convicted of Fla. Stat. § 843.01 together with a
second crime involving moral turpitude, the BIA properly determined that he is
properly removed pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii).
III. CONCLUSION
For these reasons, Cano’s petition is DENIED.
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