Jose Luis 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[DO NOT PUBLISH]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. 16-15100
Agency No. A075-856-276
JOSE LUIS GONZALEZ,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
Petition for Review of a Decision of the
Board of Immigration Appeals
(October 5, 2017)
Before TJOFLAT and JORDAN, Circuit Judges, and HUCK, * District Judge.
*
Honorable Paul C. Huck, United States District Judge for the Southern District of Florida,
sitting by designation.
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HUCK, District Judge:
Jose Luis Gonzalez, a lawful permanent resident, petitions for review of the
decision of the Board of Immigration Appeals (BIA) affirming the Immigration
Judge’s order that Gonzalez be deported as an alien convicted of a crime involving
moral turpitude at the time of his adjustment of status. See 8 U.S.C.
§ 1227(a)(1)(A); 8 U.S.C. § 1182(a)(2)(A)(i)(I). Gonzalez concedes that his 1998
conviction under Fla. Stat. § 843.01 is now considered a crime involving moral
turpitude under our precedent. Cano v. U.S. Att’y Gen., 709 F.3d 1052 (11th Cir.
2013). The question before us is whether his conviction fifteen years before Cano,
which held that Fla. Stat. § 843.01 is a crime involving moral turpitude, is sufficient
to sustain his removability under 8 U.S.C. § 1227(a)(1)(A).
I. BACKGROUND
Gonzalez is a national and citizen of Colombia who was admitted to the
United States as a crewman in 1986. In May 1998, Gonzalez was convicted in
Miami-Dade County, Florida, of battery in violation of Fla. Stat. § 784.03; battery
on a law enforcement officer in violation of Fla. Stat. § 784.07; and resisting an
officer with violence in violation of Fla. Stat. § 843.01. This last conviction is the
subject of this appeal.
On July 25, 1998, Gonzalez was granted adjustment of status based on his
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marriage to a U.S. citizen. According to the DHS, Gonzalez did not disclose his
conviction under Fla. Stat. § 843.01 in his adjustment of status application.
Gonzalez contends that he did disclose the conviction. The record before us
demonstrates that Gonzalez checked “Yes” to the question regarding whether he
had any sort of criminal history. The record does not contain any further details or
discussion regarding this disclosure.
In November 2011, Gonzalez applied for naturalization. In June 2013, the
DHS placed Gonzalez in removal proceedings, alleging that he was subject to
removal from the United States pursuant to 8 U.S.C. § 1227(a)(1)(A) because at
the time of his adjustment of status he was inadmissible to the United States as an
alien who had been convicted of a crime involving moral turpitude for which he
had not received a waiver of grounds of inadmissibility.
In January 2015, Gonzalez filed a motion to terminate his removal
proceedings, arguing that the DHS had failed to meet its burden of proof to show
by clear, unequivocal, and convincing evidence that his conviction was for a crime
involving moral turpitude at the time he adjusted status in 1998. In April 2015, the
Immigration Judge denied Gonzalez’s motion to terminate and sustained the
charge of removability. The Immigration Judge compared Gonzalez’s 1998
conviction for resisting an officer with violence in violation of Fla. Stat. § 843.013
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to the 2003 conviction under the same statute of the petitioner in Cano and
concluded that Fla. Stat. § 843.01 has been, at all times relevant to Gonzalez’s
case, a crime involving moral turpitude because the statute requires intentional
violence against an officer. In July 2015, Gonzalez filed a second motion to
terminate, reiterating his earlier arguments. In October 2015, the Immigration
Judge issued a written decision denying Gonzalez’s second motion to terminate
and ordering him removed to Colombia.
Gonzalez filed a timely appeal of the Immigration Judge’s decision to the
BIA in December 2015. In that appeal, Gonzalez repeated his earlier arguments.
On June 23, 2016, the BIA issued a written decision dismissing the appeal. The
BIA agreed with the Immigration Judge that Gonzalez’s 1998 conviction for
resisting an officer with violence in violation of Fla. Stat. § 843.01 is categorically
a crime involving moral turpitude. The BIA concluded that because there was no
precedential decision holding that a conviction under that statute was not a crime
involving moral turpitude in 1998, and because of the BIA’s long recognition of
the disregard for law and morality inherent in violence against an officer, the DHS
had met its burden of proof to establish that Gonzalez was inadmissible at the time
he adjusted status. This petition followed.
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II. STANDARD OF REVIEW
Where, as here, the BIA issues its own decision, we review the BIA’s
decision, except to the extent that the BIA expressly incorporates the Immigration
Judge’s opinion or reasoning. Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th
Cir. 2011). We review legal issues de novo. Zhou Hua Zhu v. U.S. Att’y Gen., 703
F.3d 1303, 1307 (11th Cir. 2013). Questions of statutory interpretation are
reviewed de novo, while deferring to the interpretation of the BIA if it is
reasonable. Sosa-Martinez v. U.S. Att’y Gen., 420 F.3d 1338, 1341 n.2 (11th Cir.
2005).
III. DISCUSSION
Pursuant to 8 U.S.C. § 1227(a)(1)(A), an alien is removable if, “at the time
of . . . adjustment of status [he] was within one or more of the classes of aliens
inadmissible by the law existing at such time.” An alien is inadmissible under 8
U.S.C. § 1182(a)(2)(A)(i)(I) if he has been convicted of a crime involving moral
turpitude or an attempt to commit such a crime. While “moral turpitude” is not
defined by statute, the Eleventh Circuit has stated 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.’” Cano, 709 F.3d at 1053 (quoting
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United States v. Gloria, 494 F.2d 477, 481 (5th Cir. 1974)). This definition of
moral turpitude has been used consistently since at least 1941. See In the Matter of
G–, 1 I. & N. Dec. 73, 76 (BIA 1941).
In Cano, we held that a conviction under Fla. Stat. § 843.01 is categorically
a crime involving moral turpitude. 709 F.3d at 1053, 1055. In particular, we
determined that 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.’” Id. at
1054 (quoting Yarusso v. Florida, 942 So. 2d 939, 942 (Fla. 2d DCA 2006)). We
concluded that “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,’” and therefore constitutes a crime involving moral turpitude. Id.at 1054–55 (quoting Matter of Danesh, 19 I. & N. Dec. 669, 671 (BIA 1988)).
Gonzalez argues that the DHS cannot meet its burden to prove that, at the
time of his adjustment of status in 1998, his conviction was a crime involving
moral turpitude under “the law existing at such time.” 8 U.S.C. § 1227(a)(1)(A).
He contends that the burden is on the DHS to prove each element of his ground of
deportability, including this temporal element of § 1227(a)(1)(A).
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Gonzalez maintains that the DHS is unable to meet this burden because
there was no legal authority establishing his conviction as a crime involving moral
turpitude at the time of his adjustment of status. However, Gonzalez’s burden
argument is misplaced. The DHS’s burden of proof applies to facts and evidence,
not legal authority. See Woodby v. INS, 385 U.S. 276, 277 (1966) (“[I]t is
incumbent upon the Government in [deportation] proceedings to establish the facts
supporting deportability by clear, unequivocal, and convincing evidence.”). The
facts in this case are undisputed, and the DHS has provided sufficient evidence of
Gonzalez’s conviction three months prior to his adjustment of status. The INA lists
documents that “shall constitute proof of a criminal conviction” for removal
proceedings, including “an official record of judgment and conviction.” 8 U.S.C. §
1229a(c)(3)(B)(i). The DHS provided such evidence. On this record, the
Immigration Judge and the BIA assessed Gonzalez’s removability and determined
that his conviction was for a crime involving moral turpitude.
The absence of published caselaw specifically analyzing Fla. Stat. § 843.01at the time of Gonzalez’s adjustment of status is not indicative that his conviction
was not a crime involving moral turpitude in 1998. Rather, Gonzalez’s argument
cuts both ways. In 1998 there existed no binding precedent from the BIA or this
Court holding that a conviction under Fla. Stat. § 843.01 was not a crime involving
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moral turpitude. Moreover, the BIA has long recognized that violence towards an
officer is a crime involving moral turpitude where there is “knowledge of the
assaulted person’s status as a peace officer and that the officer [is] discharging an
official duty,” as such conduct involves the use of “violence to intentionally
interfere with the lawful functions of a peace officer.” Danesh, 19 I. & N. Dec. at
673.
Gonzalez relies on a United States Citizenship and Immigration Services
Office of Administrative Appeals (AAO) decision issued a week before our
decision in Cano as evidence that the law was unsettled and that, until Cano, a
conviction under Fla. Stat. § 843.01 was not categorically determined to be a crime
involving moral turpitude. The AAO decision concluded that the applicant,
convicted under Fla. Stat. § 843.01, had not committed a crime involving moral
turpitude because the record did not reflect that the applicant had caused bodily
injury to the officer in the commission of the crime. That the AAO found that the
applicant’s conviction under Fla. Stat. § 843.01 was not a crime involving moral
turpitude is inconsequential because unpublished administrative decisions are not
binding precedent on this Court nor on the BIA. See Viraj, LLC v. U.S. Att’y Gen.,
578 F. App’x 907, 910 n.2 (11th Cir. 2014) (noting that unpublished USCIS
decisions “have no precedential value”). See also De la Rosa v. U.S. Atty. Gen.,
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579 F.3d 1327, 1336 (11th Cir. 2009) (“[T]he BIA accords no precedential value
to its unreported decisions.”). Thus, argues Gonzalez, the DHS has not carried its
burden of establishing that Fla. Stat. § 843.01 was a crime involving moral
turpitude at the time of his adjustment of status in 1998, as the DHS did not
consider it such a crime until our Cano decision in 2013.
We disagree. Our Cano decision, rather than signaling a change in the law,
was simply a confirmation that the conduct prohibited by Fla. Stat. § 843.01 was
morally turpitudinous. Gonzalez is correct that moral turpitude is a “nebulous
concept” that can change over time. Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1249
(11th Cir. 2016) (quoting Danesh, 19 I. & N. Dec. at 670). However, Gonzalez’s
conviction and adjustment of status occurred ten years after Matter of Danesh,
which is materially indistinguishable from this case.
Gonzalez’s conviction under Fla. Stat. § 843.01 would be considered a
crime involving moral turpitude even if Cano did not exist. The only intent
necessary for violation of the statute is “to ‘knowingly and willfully’ impede an
officer in the performance of his or her duties.” Frey v. State, 708 So. 2d 918, 920
(Fla. 1998). “Such conduct exhibits a deliberate disregard for the law” and “a
violation of the accepted rules of morality and the duties owed to society.”
Danesh, 19 I. & N. Dec. at 673. Matter of Danesh, therefore, requires the same
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legal conclusion in Gonzalez’s case as it did in Cano. The decision to approve
Gonzalez’s adjustment of status in 1998, whether or not the agency had knowledge
of his conviction, was an error, and the BIA correctly determined that Gonzalez is
removable under 8 U.S.C. § 1227(a)(1)(A).
IV. CONCLUSION
For these reasons, Gonzalez’s petition is DENIED.
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