Raul Acevedo Gonzalez v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10368
Non-Argument Calendar
________________________
Agency No. A087-895-036
RAUL ACEVEDO GONZALEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 3, 2019)
Before TJOFLAT, NEWSOM, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Petitioner Raul Acevedo Gonzalez, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’s (“BIA”) final order affirming
the decision of the Immigration Judge (“IJ”). The IJ pretermitted Petitioner’s
application for cancellation of removal after concluding that Petitioner had been
convicted of an offense that qualified as both an aggravated felony and as a crime
involving moral turpitude (“CIMT”). We grant the petition in part; vacate the part
of the BIA’s order classifying Petitioner’s conviction as an aggravated felony; and
deny the petition in part.
I. Background
Petitioner first entered the United States without inspection in 2000. In
2010, Petitioner was charged as removable (1) for being present in the United
States without having been admitted or paroled, 8 U.S.C. § 1182(a)(6)(A)(i), and
(2) for having been convicted of a CIMT, 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Petitioner conceded removability for having not been admitted or paroled.
Petitioner also admitted that he had a 2009 conviction for fleeing or attempting to
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elude a law enforcement officer, in violation of Fla. Stat. § 316.1935(2); but
Petitioner denied that this conviction constituted a CIMT. Petitioner then applied
for cancellation of removal, on grounds that his removal would result in
exceptional and extremely unusual hardship to his wife and children, who are
United States citizens.
After a merits hearing, the IJ pretermitted Petitioner’s application for
cancellation of removal and ordered Petitioner removed to Mexico. The IJ first
concluded that Petitioner’s 2009 conviction for fleeing or eluding a law
enforcement officer constituted an aggravated felony, making Petitioner ineligible
for most forms of discretionary relief. The IJ also determined that Petitioner’s
2009 conviction was categorically a CIMT and, as a result, that Petitioner was
statutorily ineligible for cancellation of removal. The IJ noted that Petitioner had
declined the opportunity to apply for withholding of removal or for protection
under the Convention Against Torture. The BIA affirmed and adopted the IJ’s
decision.
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II. Standard of Review
Because the BIA adopted expressly the IJ’s decision, we review the
decisions of both the BIA and the IJ on appeal. See Ayala v. U.S. Att’y Gen., 605
F.3d 941, 948 (11th Cir. 2010). We review de novo whether an alien’s conviction
constitutes an aggravated felony. Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1335
(11th Cir. 2011). We also review de novo whether a conviction qualifies as a
CIMT. Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1240 (11th Cir. 2016).
We will defer to the BIA’s statutory interpretation when the pertinent
immigration “statute is silent or ambiguous with respect to the specific issue before
us” and the BIA’s interpretation of the statute is reasonable. Cadet v. Bulger, 377
F.3d 1173, 1185-86 (11th Cir. 2004). “An agency’s interpretation is reasonable
and controlling unless it is ‘arbitrary, capricious, or manifestly contrary to the
statute.’” Id.
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III. Discussion
A. Aggravated Felony
The Attorney General has discretion to cancel the removal of an otherwise
deportable alien only if the alien “has not been convicted of any aggravated
felony.” 8 U.S.C. § 1229b(a)(3). An offense of conviction constitutes an
“aggravated felony” if, among other things, the offense qualifies as a “crime of
violence” within the meaning of 18 U.S.C. § 16. 8 U.S.C. § 1101(a)(43)(F).
Section 16 defines a “crime of violence” this way:
(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.
18 U.S.C. § 16 (2018). “To determine whether a state law offense qualifies as a
crime of violence for immigration purposes, we employ a categorical approach,
looking to the elements and the nature of the offense of conviction, rather than to
the particular facts relating to petitioner’s crime.” Dixon v. U.S. Att’y Gen., 768
F.3d 1339, 1343 (11th Cir. 2014).
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That Petitioner’s statute of conviction -- Fla. Stat. § 316.1935(2) -- is
categorically not a crime of violence under section 16(a) is undisputed. The BIA
and the IJ concluded only that Petitioner’s conviction constituted a crime of
violence under section 16(b).
While Petitioner’s petition was pending in this Court, however, the Supreme
Court struck down as unconstitutionally vague section 16(b). See Sessions v.
Dimaya, 138 S. Ct. 1204, 1210, 1223 (2018). Because Petitioner’s statute of
conviction no longer qualifies as a “crime of violence,” we grant in part the
petition; and we vacate the BIA’s classification of Petitioner’s offense as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F).
B. Crime Involving Moral Turpitude
An alien who has committed a CIMT is ineligible for cancellation of
removal. See 8 U.S.C. §§ 1229b(d)(1), 1182(a)(2)(A)(i)(I). Although the term
“moral turpitude” is not defined by statute, we have said that the term means “an
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.” Cano v. U.S. Att’y Gen.,
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709 F.3d 1052, 1053 (11th Cir. 2013) (alteration omitted). The BIA has said that a
CIMT “involves reprehensible conduct committed with some degree of scienter,
either specific intent, deliberateness, willfulness, or recklessness.” In re:
Louissaint, 24 I.&N. Dec. 754, 756-57 (BIA 2009).
“[I]n deciding whether a 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.” Cano,
709 F.3d at 1053. Petitioner was convicted of violating Fla. Stat. § 316.1935(2),
which contains this language:
(2) Any person who willfully flees or attempts to elude a law
enforcement officer in an authorized law enforcement patrol vehicle,
with agency insignia and other jurisdictional markings prominently
displayed on the vehicle, with siren and lights activated commits a
felony of the third degree . . .
In determining that Petitioner’s 2009 conviction constituted a CIMT, the IJ
relied in part on the BIA’s determination -- in In re: Ruiz-Lopez, 25 I.&N. Dec.
551, 556 (BIA 2011) -- that a conviction for attempting to elude a police vehicle
(in violation of a Washington statute) constituted a CIMT. The IJ acknowledged
that the statute at issue in Ruiz-Lopez included as an element that the offender
“drove his vehicle in a manner indicating a wanton or willful disregard for the lives
or property of others”: an element not included in Fla. Stat. § 316.1935(2). The IJ
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also noted that Florida law categorizes as a separate offense fleeing or attempting
to elude a police vehicle while driving in a “manner which demonstrates a wanton
disregard for the safety of persons or property.” See Fla. Stat. § 316.1935(3)(a).
The IJ concluded, however, that the distinction between Florida Statutes section
316.1935(2) and section 316.1935(3)(a) was “irrelevant” in the light of case law
recognizing the risk inherent in all forms of vehicular flight.
In United States v. Petite, we concluded -- for purposes of determining
whether an offense qualified as a violent felony under the “residual clause” of the
Armed Career Criminal Act (“ACCA”) -- that no meaningful distinction existed
between section 316.1935(2) and section 316.1935(3). 703 F.3d 1290, 1300 (11th
Cir. 2013) (“While it may be true that the conduct underlying violations of §§
316.1935(3)(a) and 316.1935(3)(b) presents greater risks of violence and injury
than does conduct underlying a violation of the base offense in § 316.1935(2), it
does not follow that a violation of § 316.1935(2) does not also present a substantial
risk of injury to another.” (citation omitted)). We stressed that the Supreme Court
-- in Sykes v. United States, 564 U.S. 1 (2011) -- “made it clear . . . that intentional
vehicle flight from a law enforcement officer is an inherently risky offense, that the
offense by definitional necessity occurs in the presence of a law enforcement
officer and provokes a dangerous confrontational response from that officer, and
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that this confrontational response places property and persons at serious risk both
during and after the pursuit, even without any reckless driving on the part of the
offender.” Id. at 1301.
In the light of the language about Fla. Stat. § 316.1935 in Petite, and about
vehicular flight in Sykes and in Petite, * the IJ determined that Petitioner’s statute of
offense was materially indistinguishable from the Washington statute at issue in
Ruiz-Lopez. The IJ’s conclusion is further supported by the BIA’s decision in
Louissaint, in which the BIA said that an offense constitutes a CIMT where the
offense conduct inherently “invites a violent defensive response” or is likely to
result in “a face-to-face confrontation between the [offender] and a third party . . .
.” See 24 I.&N. Dec. at 758-59 (concluding that burglary of an occupied building,
in violation of Fla. Stat. § 810.02(3)(a), constituted a CIMT). Like the burglary
offense at issue in Louissaint, vehicular flight from a police officer (even in the
absence of aggravating factors) is inherently likely to “provoke[] a dangerous
confrontational response . . . .” Cf. Sykes, 564 U.S. at 1301.
We do accept the IJ’s and the BIA’s conclusion that a violation of Fla. Stat.
§ 316.1935(2) constitutes a CIMT is not “arbitrary, capricious, or manifestly
*
We note that Sykes and Petite both involved an analysis under the ACCA’s residual clause: a
provision which has since been declared unconstitutionally vague. See Johnson v. United States,
135 S. Ct. 2551 (2015). Nevertheless, we find persuasive the discussion in Sykes and in Petite
about the inherent risks associated with vehicular flight.
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contrary to the statute;” therefore, we defer to the agency’s interpretation. See
Cadet, 377 F.3d at 1185-86.
IV: Conclusion
We grant in part the petition and vacate the BIA’s order to the extent that the
BIA concluded that a conviction under Fla. Stat. § 316.1935(2) constitutes an
“aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43)(F). We deny in
part the petition to the extent that Petitioner challenges the BIA’s conclusion that
Petitioner’s 2009 conviction qualifies as a CIMT. Because Petitioner has been
convicted of a CIMT, he is statutorily ineligible for cancellation of removal. The
BIA, thus, committed no error in pretermitting Petitioner’s application for
cancellation of removal.
PETITION GRANTED IN PART AND DENIED IN PART.
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