Eleventh Circuit Finds that Florida Lewd and Lascivious Battery Conviction is not Aggravated Felony

The Eleventh Circuit has determined that a Florida conviction under the 2008 version of the state’s lewd lascivious battery statute is a sexual abuse of a minor aggravated felony. “The least culpable conduct under § 800.04(4) is consensual sexual activity between adolescents who are 12 to 15 years old, with no minimum age required for the perpetrator. The statute therefore sweeps more broadly than the generic federal definition of ‘sexual abuse of a minor,’ which in the statutory rape context before us requires an age difference of at least one year between the perpetrator and the victim.”

The full text of Leger v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202210971.pdf

Eleventh Circuit Defers to BIA's Definition of Crime of Child Abuse

The Eleventh Circuit has deferred to the agency’s definition of a crime of child abuse as including criminally negligent, noninjurious conduct. Thus, a Florida conviction for culpably negligent child neglect is a deportable offense.

The full text of Bastias v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202111416.pdf

Eleventh Circuit Finds that FL Conviction for Felon in Possession of a Weapon is Not Firearms Offense

The Eleventh Circuit has concluded that a Florida conviction for a felon in possession of a weapon does not match the definition of the firearms offense deportability ground because the statute includes carrying of non-firearm weapons and possession of ammunition. The statute is divisible between the possession of a prohibited item and the concealed carrying of a prohibited item. However, the possession prong includes possession of ammunition, which is not a firearm. In addition, the carrying prong includes non-firearm weapons, such as a dirk. Moreover, the statute is not divisible between the prohibited items.

The full text of Simpson v. U.S. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201911156.pdf

Eighth Circuit Declines to Extend Realistic Probability Test to Overbroad FL Cannabis Statute

The Eighth Circuit has determined that Florida statutes related to cannabis are overbroad because they include parts of the cannabis plant explicitly excluded from the federal definition. Because the statute was overbroad on its face, the Eighth Circuit determined that the realistic probability test did not apply, even in the context of a petitioner applying for relief from removal.

The full text of Lopez Gonzalez v. Wilkinson can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/03/193412P.pdf

Supreme Court finds that FL Robbery Statute is Violent under ACCA

The Supreme Court has determined that Florida’s robbery statute qualifies as a violent felony under the Armed Career Criminal Act (ACCA). The Court determined that violent felonies encompass “robbery offenses that require the criminal to overcome the victim’s resistance.”

The force necessary to overcome a victim’s physical resistance is inherently violent and suggests “a degree of power that would not be satisfied by the merest touching.” “This is true because robbery that must overpower a victim’s will—even a feeble or weak-willed victim—necessarily involves a physical confrontation and struggle. The altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself ‘capable of causing physical pain or injury.”

Given the similarity between the definition of the definition of a crime of violence in the immigration context and a violent felony under the ACCA, this decision could have persuasive impact in the immigration context.

The full text of Stokeling v. United States can be found here:

https://www.supremecourt.gov/opinions/18pdf/17-5554_4gdj.pdf

Eleventh Circuit finds that FL Drug Statute is DivisIble

The Eleventh Circuit has concluded that a Florida drug possession statute is divisible with respect to the identity of the controlled substances criminalized by the statute. The court examined state case law interpretations of the statute and jury instructions to conclude that the substances criminalized by the statute are alternative elements of the statute.

The full text of Guillen v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201712247.pdf

Eleventh Circuit Finds that FL Conviction for Sale of Cocaine is Aggravated Felony

At issue in this appeal was the petitioner's 2006 conviction under Fla. Stat. § 893.13(1)(a)(1). Both parties agreed that, of the six discrete alternative elements outlined in § 893.13(1)(a)(1), the “sale” element formed the basis of the petitioner's conviction.  The Court agreed with the Board of Immigration Appeals' determination in Matter of L-G-H- that the illicit trafficking definition of a drug trafficking aggravated felony does not require knowledge of the illicit nature of the substance trafficked.  Accordingly, the petitioner's conviction qualified as an aggravated felony.

The full text of Choizilme v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201513845.pdf

Eleventh Circuit Finds that Florida Drug Trafficking Conviction is not an Aggravated Felony

The petitioner was convicted of violating Fla. Stat. § 893.135(1)(b)1.c, which makes it unlawful to sell, purchase, manufacture, deliver, or bring cocaine into Florida or to knowingly possess cocaine.  The Court recognized that it had determined in Cintron v. U.S. Attorney held that Fla. Stat. § 893.135(1)(c) is neither divisible nor a categorical match to a federal crime in the CSA.  Given the nearly identical language in the two statutes, Cintron controlled the outcome of the instant case.

The full text of Ulloa Francisco v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201513223.pdf

Eleventh Circuit Finds that Florida Conviction for Criminal Use of Personal Identification Information is Categorically a CIMT

In an unpublished decision, the Eleventh Circuit has determined that a Florida conviction for criminal use of personal identification information is categorically a crime involving moral turpitude.  "Because the least culpable conduct under § 817.568(2)(a) involves the specific intent to possess personal information with intent to defraud, the BIA reasonably concluded that Petitioner’s offense involves moral turpitude."

The full text of Vlichez-Bello v. Attorney General can be found here: 

http://media.ca11.uscourts.gov/opinions/unpub/files/201616764.pdf

Eleventh Circuit Addresses Florida Conviction for Abuse of an Elderly or Disabled Person

The Eleventh Circuit has determined that a Florida conviction for abuse of an elderly or disabled person is categorically a crime involving moral turpitude.  The court acknowledged that no actual injury need be inflicted on the victim, and that the statute can be violated by encouraging another person to abuse the victim.  Nonetheless, the court focused on the vulnerable population protected by the statute to find that all conduct criminalized under the statute involves moral turpitude.

The full text of Gelin v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201512497.pdf

Eleventh Circuit Evaluates a Florida Conviction for Sale of a Controlled Substance

The Eleventh Circuit has determined that sale of a controlled substance under Florida Statute § 893.13(1)(a)(1) is an illicit trafficking aggravated felony.  The court determined that the statute is divisible, containing 6 discrete offenses: sale, delivery, manufacture, possession with intent to sell, possession with intent to deliver, and possession with intent to manufacture.  Thus, the modified categorical approach was appropriately applied to determine that the petitioner was convicted of sale of a controlled substance.

The full text of Spaho v. Attorney General can be found here: 

http://media.ca11.uscourts.gov/opinions/pub/files/201511299.pdf

Ninth Circuit Determines that Florida Conviction for Manslaughter does not Qualify as a Crime of Violence under the Sentencing Guidelines

The Ninth Circuit has determined that a Florida conviction for manslaughter does not qualify as a crime of violence under the federal sentencing guidelines because the statute does not require a minimal mens rea of at least recklessness.  Given that the Ninth Circuit has defined a crime of violence in the immigration context to require a higher mens rea than recklessness, this decision will provide immigration attorneys with a great argument that a conviction under this statute is not a crime of violence aggravated felony.

The full text of United States v. Mendoza Padilla can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/16/15-10051.pdf

Board Addresses Proper Standard for Evaluating Whether a Conviction Qualifies as a Crime of Violence

In a decision that only be described as "two steps backwards" for criminal immigration practitioners (like myself), the Board of Immigration Appeals (Board) issued a precedential decision finding that the proper inquiry for determining whether a conviction is for an aggravated felony crime of violence under 18 U.S.C. § 16(b)  is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.”  In so finding, the Board discarded the standard outlined by the Supreme in Moncrieffe v. Holder which instructed courts to determine what the "least culpable conduct" criminalized by a statute is, and then determine if there is a categorical match between that conduct and the generic federal definition of a crime (in this case, the definition of a crime of violence outlined in 18 U.S.C. § 16(b)).  

The problem is that the Board failed to sufficiently explain how to evaluate what the "ordinary case" of conviction is under a particular statute.  It noted that the respondent in the case had not presented any cases in which Florida has prosecuted someone for felony battery where violent force was not used, but it did not discuss whether the presentation of such a case would mean that the ordinary prosecution still involved such force.  How many cases would the respondent have to find? 5? 10? Must they be published cases? At what point does the ordinary conduct criminalized by a statute include less culpable conduct than one might imagine? 

The full test of Matter of Francisco-Alonzo can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/06/02/3839.pdf