Leger v. U.S. Attorney Gen.

101 F.4th 1295

Marken LEGER, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 22-10971

United States Court of Appeals, Eleventh Circuit

Filed: May 20, 2024

Petition for Review of a Decision of the Board of Immigration Appeals, Agency No. XXX-XX3-760

Mark Andrew Prada, Prada Dominguez, PLLC, Miami, FL, Carlos E. Sandoval, Carlos E. Sandoval, PA, Hollywood, FL, for Petitioner.

Stephen Finn, Appellate Section, Office of Immigration Litigation, Washington, DC, OIL, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Emma Curtis Winger, American Immigration Council, Washington, DC, for Amicus Curiae American Immigration Council.

Before Jordan and Rosenbaum, Circuit Judges, and Manasco,^* District Judge.

Jordan, Circuit Judge:

In Esquivel-Quintana v. Sessions, 581 U.S. 385, 137 S.Ct. 1562, 198 L.Ed.2d 22 (2017), the Supreme Court considered whether a California conviction for unlawful sexual intercourse with a minor—pursuant to a statute which prohibited consensual sexual intercourse between a 21-year-old and a 17-year-old—constituted the "sexual abuse of a minor," which is a listed aggravated felony under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A). The INA does not define "sexual abuse of a minor," but the Supreme Court unanimously held (without Justice Gorsuch participating) that "in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16." Esquivel-Quintana, 581 U.S. at 390-1, 137 S.Ct. 1562. Because the California statute at issue did not "categorically fall within that definition," the Court concluded that a conviction pursuant to it was not an aggravated felony. See id. at 391, 137 S.Ct. 1562.

In this case, we must decide whether a Florida conviction for lewd and lascivious battery under the 2008 version of Fla. Stat. § 800.04(4)—an offense which the Florida Supreme Court has characterized as statutory rape—constitutes the sexual abuse of a minor, and is therefore an aggravated felony under the INA. Applying the categorical approach, and building on the Supreme Court's analysis in Esquivel-Quintana, we hold that it is not. 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.

We realize that this short summary may be unintelligible to those who are unversed in the intricacies of immigration law and unfamiliar with the Supreme Court's categorical approach for determining which state offenses constitute aggravated felonies—and maybe even to those who profess some expertise. In the pages that follow, we'll do our best to explain.

I

Marken Leger, a citizen of Haiti, has lived in the United States as an asylee since 2000. In 2009, he pleaded no contest to a charge of lewd and lascivious battery, in violation of Fla. Stat. § 800.04(4).¹

In 2013 and 2018, Mr. Leger pleaded no contest to two other offenses. Both were the possession of marijuana, in violation of Fla. Stat. § 893.13(6)(b).

The government served Mr. Leger with a notice to appear in 2019, initiating removal proceedings against him pursuant to 8 U.S.C. §§ 1227(a)(2)(E)(i) & (a)(2)(B)(i). The notice did not include a hearing date and time.

On July 1, 2019, the immigration court sent Mr. Leger a notice of a hearing scheduled for 8 a.m. on July 9, 2019. Several days later, the government amended the notice to appear to reflect its position that Mr. Leger was also removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).

Mr. Leger appeared at his hearing, which was continued to permit him to obtain counsel. Eventually, Mr. Leger retained counsel who appeared on his behalf at a hearing held in September of 2019. Mr. Leger moved to terminate the proceeding, arguing that the notice to appear was deficient because it failed to specify a date and time for the hearing. The immigration judge denied the motion. Mr. Leger subsequently admitted some of the underlying facts alleged in the notice to appear but denied that he was removable as alleged.

After a hearing on the merits, the immigration judge concluded that Mr. Leger was removable. As relevant here, the immigration judge determined that he was inadmissible pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) because his marijuana possession convictions under Fla. Stat. § 893.13(6) constituted controlled substance offenses under the INA. The immigration judge additionally found that his conviction under Fla. Stat. § 800.04(4) was an aggravated felony.

Mr. Leger appealed to the BIA. Without opining on the merits of the appeal, the BIA remanded the matter to the immigration judge to decide whether Mr. Leger's status as an asylee should be terminated. Because someone like Mr. Leger cannot be lawfully removed without termination of his asylee status, see 8 C.F.R. § 1208.22, the BIA explained, that issue needed to be resolved by the immigration judge.

On remand, the immigration judge terminated Mr. Leger's asylee status pursuant to 8 C.F.R. § 1208.24. In doing so, the immigration judge ruled that his conviction under Fla. Stat. § 800.04(4) was an aggravated felony because it constituted the sexual abuse of a minor. See A.R. 51-53. The immigration judge thought that § 800.04(4) is divisible, but concluded that divisibility did not matter because all the conduct prohibited by subsection (4) of the statute constituted the sexual abuse of a minor. See A.R. 53.

Mr. Leger again appealed, but a single member of the BIA dismissed the appeal and affirmed the immigration judge's decision. The BIA agreed with the immigration judge that Mr. Leger's convictions for marijuana possession under Fla. Stat. § 893.13(6) rendered him removable. See A.R. 6-7. The BIA also concluded that the immigration judge properly terminated Mr. Leger's asylee status because the conviction under Fla. Stat. § 800.04(4) constituted the sexual abuse of a minor and was therefore an aggravated felony. See A.R. 4-6. Finally, the BIA rejected Mr. Leger's argument based on the notice to appear, explaining that the defective notice did not deprive the immigration judge of jurisdiction. See A.R. at 10.²

This is Mr. Leger's petition for review.

II

We start with the easier of the issues, the effect of Mr. Leger's convictions for possession of marijuana under Fla. Stat. § 893.13(6)(b). The immigration judge and the BIA concluded that these convictions constituted controlled substance offenses under the INA and rendered Mr. Leger removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) and inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(A)(i).

In Said v. U. S. Attorney General, 28 F. 4th 1328, 1333 (11th Cir. 2022), which was decided three weeks after the BIA dismissed Mr. Leger's appeal, we explained that "[b]y the plain language of [Fla. Stat.] § 893.02(3), not all substances that it proscribes are federally controlled." For example, "[§] 893.02(3) includes all parts of the marijuana plant, while [21 U.S.C. § 802(16), the federal statute defining a controlled substance,] does not." Id. (quotation marks omitted). Accordingly, we held that a Florida conviction for possession of marijuana under Fla. Stat. § 893.13(6)(a) was not a controlled substance offense as defined under federal law. See Said, 28 F.4th at 1332-34.

Mr. Leger argues, and the government concedes, that Said controls. See Petitioner's Br. at 59-62; Respondent's Br. at 32. We agree. Mr. Leger's statute of conviction, Fla. Stat. § 893.13(6)(b), is overbroad because Fla. Stat. § 893.02(3)—which defines marijuana—includes parts of the marijuana plant that its federal counterpart, 21 U.S.C. § 802(16), does not. Mr. Leger's marijuana possession convictions therefore do not constitute controlled substance offenses as defined under federal law. As a result, the BIA erred in determining that Mr. Leger was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) and inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(A)(i).

III

We now address whether Mr. Leger's conviction under Fla. Stat. § 800.04(4) constitutes an aggravated felony. This is a "question of law subject to plenary review." Kemokai v. U.S. Att'y Gen., 83 F.4th 886, 891 (11th Cir. 2023).

A

Under the INA, a grant of asylum may be terminated for a number of reasons, including a conviction for a "particularly serious crime." 8 U.S.C. § 1158(b)(2)(A)(ii) & (c)(2)(B). A conviction for an aggravated felony is, statutorily, considered a conviction for a particularly serious crime for purposes of asylum. See § 1158(b)(2)(B)(i). This case therefore turns on whether Mr. Leger's conviction under Fla. Stat. § 800.04(4) is an aggravated felony.

As relevant here, the INA defines an aggravated felony as including the "sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A) (listing "murder, rape, or sexual abuse of a minor"). If Mr. Leger's § 800.04(4) conviction constitutes the sexual abuse of a minor within the meaning of the INA, his asylee status was properly terminated, making him removable.

Mr. Leger argues that the generic federal definition of the sexual abuse of a minor requires a four-year age difference between the perpetrator and the victim. Based on this premise, he contends that his conviction under § 800.04(4) is not the sexual abuse of a minor because the statute does not include a four-year age differential. See Petitioner's Br. at 16-17. The government maintains that the generic federal definition of sexual abuse of minor does not include any age differential and asserts that our precedent calls for rejection of Mr. Leger's argument. See Respondent's Br. at 19-21.

The parties agree that the...