for Review of a Decision of the Board of Immigration Appeals
Agency No. A095-580-030
BLACK and HULL, Circuit Judges, and RESTANI, [*] Judge.
Pierre, a native and citizen of Haiti, petitions for review
of the decision of the Board of Immigration Appeals
("BIA"), which affirmed the Immigration Judge's
("IJ") orders concluding that Pierre was removable
and ineligible for cancellation of removal based on his
felony conviction for battery of a child by throwing,
tossing, projecting, or expelling blood, seminal fluid,
urine, or feces, in violation of Florida Statute §
review and with the benefit of oral argument, we conclude
that the BIA did not err in concluding that (1) Pierre was
removable, because his conviction was a crime of child abuse
within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i), (2)
Pierre was ineligible for cancellation of removal, because
his conviction was a crime involving moral turpitude
("CIMT") within the meaning of 8 U.S.C. §
1227(a)(2)(A)(i), and (3) the IJ did not deprive Pierre of
due process by granting the government's motion to
pretermit his application for cancellation of removal.
Accordingly, we deny the petition.
Immigration and Nationality Act ("INA") makes
removable "[a]ny alien who at any time after admission
is convicted of . . . a crime of child abuse, child neglect,
or child abandonment." 8 U.S.C. § 1227(a)(2)(E)(i).
cancellation of removal, the INA further provides that the
Attorney General may cancel the removal of an otherwise
deportable alien if the alien (1)has been a lawful permanent
resident in the United States for at least five years, (2)has
resided in the United States continuously for at least seven
years after being admitted in any status, and (3) has not
been convicted of an aggravated felony. Id. §
1229b(a). However, as to the second requirement of continuous
residence for seven years, "any period of continuous
residence or continuous physical presence in the United
States shall be deemed to end . . . when the alien has
committed" any of several types of offenses, including a
"crime involving moral turpitude." Id.
§§ 1229b(d)(1), 1182(a)(2)(A)(i)(I). Pierre's
Florida conviction occurred before he had resided here
continuously for seven years, triggering the "stop time
rule" in the second requirement if his conviction was a
all parties agree that (1) Pierre is removable if he was
convicted of a crime of child abuse, and (2) he is not
eligible for cancellation of removal if he was convicted of a
CIMT. The primary dispute in this case is whether
Pierre's conviction under Fla. Stat. § 784.085 falls
within the definitions of "crime of child abuse"
and "crime involving moral turpitude."
IMMIGRATION PROCEEDINGS 2012-2017
15, 2004, Pierre, then aged 14, was admitted to the United
States as an asylee from Haiti. On August 15, 2005, his status
was adjusted to that of legal permanent resident. On December
18, 2009, Pierre pled guilty in Florida state court to one
count of battery of a child, in violation of Fla. Stat.
§ 784.085. Pierre was sentenced to five years'
Statute § 784.085 is entitled "Battery of child by
throwing, tossing, projecting, or expelling certain fluids or
materials." Fla. Stat. § 784.085. Under the
statute, battery of a child occurs when a person
"knowingly cause[s] or attempt[s] to cause a child to
come into contact with blood, seminal fluid, or urine or
feces by throwing, tossing, projecting, or expelling such
fluid or material." Id. § 784.085(1).
for both the completed crime (causing actual contact) and the
attempt crime (attempting to cause contact), the statute
requires that the defendant commit the overt act of throwing,
tossing, projecting or expelling the bodily fluids or feces.
If contact occurs, the defendant is guilty of causing
contact. If the defendant throws, tosses, projects, or expels
the fluids or feces, but misses and no contact occurs, the
defendant is guilty of an attempt to cause contact by the
proscribed overt act. Either way, the defendant must have
thrown, tossed, projected or expelled blood, seminal fluid,
urine, or feces, and the target of the overt act must be a
2012, the Department of Homeland Security ("DHS")
issued a Notice to Appear, charging Pierre with removability
under 8 U.S.C. § 1227(a)(2)(E)(i) for having the above
Florida conviction for "a crime of domestic violence, a
crime of stalking, or a crime of child abuse, child neglect,
or child abandonment."
represented by counsel, appeared before an IJ on August 14,
2012. Pierre admitted the factual allegations in the notice
to appear, but contested his removability, arguing that his
Florida conviction was not a crime of child abuse. The IJ
adjourned to allow the parties to brief that issue. At the
next hearing, on September 13, 2012, the IJ concluded that
Pierre was removable because "the particular offense in
this case is battery on a child because it involves
particular elements mentioned in a statute . . . [and] is a
crime of child abuse."
next appeared before an IJ on April 25, 2013. At that
hearing, Pierre requested additional time to apply for
cancellation of removal, and stated that he wished to
"reserve the opportunity to look into filing asylum,
[and] withholding [of] removal." The IJ set a deadline
of July 24, 2013 "for the [cancellation of removal]
application and all supporting documents." The
government asked whether Pierre would also be pursuing an
asylum application. Pierre replied that he "[did not]
know if the Government is going to have any issue as to the
eligibility for the [cancellation of removal], " so he
"would just like to reserve any possible form of
relief." The IJ informed Pierre that the July 24, 2013
deadline would also apply to an asylum application. Pierre,
through counsel, replied, "That's fine, Your
April 30, 2015 Merits Hearing
applied for cancellation of removal on January 25, 2014, but
did not apply for any other forms of relief from removal,
such as asylum. A hearing on the application was held on
April 30, 2015.
hearing, the IJ issued two oral decisions concerning
Pierre's removability and eligibility for cancellation of
removal. The IJ also denied Pierre's request for
additional time to apply for an alternate form of relief from
removal. We discuss these decisions in turn.
first oral decision, the IJ concluded that Pierre was
removable because his Florida conviction matched the generic
definition of child abuse, which the BIA has described as
"any offense involving an intentional, knowing, reckless
or criminally negligent act or omission that constitutes
maltreatment of a child or that impairs a child's
physical or mental well-being, including sexual abuse or
exploitation." See Matter of Velazquez-Herrera,
24 I&N Dec. 503, 517 (BIA 2008).
acknowledged that Fla. Stat. § 784.085 criminalizes both
attempted battery of a child and actual battery of a child.
But the IJ concluded that this did not make the statute
divisible, because "both the actual crime and the
inchoate crime would fit the general definition." This
was so, the IJ explained, because, under Florida law, the
prosecution "must prove the existence of an overt act as
necessary to support a conviction for attempt." See
Thomas v. State, 531 So.2d 708, 709-10 (Fla. 1988).
Thus, "even if the crime were [an] inchoate offense, the