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Pierre v. U.S. Attorney General

United States Court of Appeals, Eleventh Circuit

January 18, 2018

JIMMY PIERRE, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent.

         Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A095-580-030

          Before BLACK and HULL, Circuit Judges, and RESTANI, [*] Judge.

          HULL, CIRCUIT JUDGE:

         Jimmy 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 § 784.085.

         After 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.

         I. LEGAL BACKGROUND

         The 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).

         As to 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 CIMT.

         Accordingly, 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."

         II. IMMIGRATION PROCEEDINGS 2012-2017

         On May 15, 2004, Pierre, then aged 14, was admitted to the United States as an asylee from Haiti.[1] 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' probation.

         Florida 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).

         Notably, 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 child.

         A. Preliminary Hearings

         In July 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."[2]

         Pierre, 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."

         Pierre 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 Honor."

         B. April 30, 2015 Merits Hearing

         Pierre 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.

         At the 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.

         In his 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).

         The IJ 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 ...


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