Simpson v. U.S. Attorney Gen.

7 F.4th 1046

Charles Kevin SIMPSON, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 19-11156

United States Court of Appeals, Eleventh Circuit.

August 4, 2021

Christopher N. Bellows, Holland & Knight, LLP, Miami, FL, Charles Kevin Simpson, Coral Spring, FL, for Petitioner.

Sabatino F. Leo, Tracey N. McDonald, U.S. Department of Justice, Office of Immigration Litigation, Ilana Joslyn Snyder, U.S. Department of Justice, Appellate Section, Office of Immigration Litigation, Washington, DC, Michelle M. Ressler, District Counsel's Office, Miami, FL, for Respondent.

Before JORDAN, MARCUS, and GINSBURG,^* Circuit Judges.

JORDAN, Circuit Judge:

Charles Simpson petitions for review of a final order of removal issued by the Board of Immigration Appeals. The main question presented is whether a conviction under Fla. Stat. § 790.23(1)(a) —which makes it unlawful for a convicted felon to "own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device"—constitutes a "firearm offense" within the meaning of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C), and its cross-reference to 18 U.S.C. § 921(a)(3). We hold that it does not.

I

Mr. Simpson, a native and citizen of the Bahamas, entered the United States in 1978 as a B-2 tourist visitor. In 1990, he adjusted his status to lawful permanent resident.

In 2018, Mr. Simpson pled guilty in a Florida court to being a felon in possession of a firearm, in violation of Fla. Stat. §§ 790.23(1) & 775.087(2)(a)(1), and to the improper exhibition of a weapon, in violation of Fla. Stat. § 790.10. Based on those convictions, the Department of Homeland Security issued Mr. Simpson a notice to appear, charging him as removable under 8 U.S.C. § 1227(a)(2)(C) because he was an alien convicted of a firearm offense (as defined in 18 U.S.C. § 921(a)(3) ) under the INA. The notice ordered Mr. Simpson to appear on a "[t]ime and date to be set." Mr. Simpson was subsequently served with a notice of hearing advising him that the removal proceeding would take place at 8:00 a.m. on June 28, 2018, at the Krome Immigration Court in Miami, Florida.

Mr. Simpson appeared with counsel at the removal proceeding. Following that proceeding, an immigration judge found Mr. Simpson removable as charged. The immigration judge denied Mr. Simpson's request for a continuance pending an application for a U-visa, and ordered him removed to the Bahamas.

On appeal to the BIA, Mr. Simpson argued that the immigration judge lacked jurisdiction because the notice to appear failed to contain the required time and place information for the removal proceeding. See generally Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 2110, 201 L.Ed.2d 433 (2018) (holding that a notice to appear that does not specify the time and place of the removal hearing does not comport with 8 U.S.C. § 1229(a)(1), and consequently is not a notice to appear at all). He also asserted that his 2018 conviction for violating Fla. Stat. § 790.23(1)(a) did not constitute a firearm offense under 8 U.S.C. § 1227(a)(2)(C).

The BIA, in a one-member order, dismissed Mr. Simpson's appeal. See In re Simpson , 2019 WL 2464457 (BIA 2019). First, the BIA rejected Mr. Simpson's argument based on the notice to appear. Applying its precedential decision in Matter of Bermudez-Cota , 27 I. & N. Dec. 441 (BIA 2018), the BIA ruled that a notice to appear lacking the requisite time and place information nonetheless properly vests an immigration judge with jurisdiction when it is followed by a notice of hearing providing that information. See Simpson , 2019 WL 2464457, at *2. Second, the BIA concluded that Mr. Simpson's conviction under Fla. Stat. § 790.23(1)(a) constituted a firearm offense under 8 U.S.C. § 1227(a)(2)(C) and its cross-reference to 18 U.S.C. § 921(a)(3). Although the Florida statute was categorically overbroad, it was divisible "with respect to the types of objects it covers." Id. at *4. The elements of Mr. Simpson's firearm offense, moreover, corresponded with those in § 921(a), and the charging document made clear that Mr. Simpson was convicted of possessing a firearm, i.e., a shotgun. Mr. Simpson was therefore removable. See id. at *2-*4.¹

Mr. Simpson timely filed this petition for review. He presents the same two arguments that he raised before the BIA.

II

Our review of the BIA's legal conclusions is de novo . See George v. U.S. Att'y Gen. , 953 F.3d 1300, 1303 (11th Cir. 2020). This plenary review applies to both of Mr. Simpson's arguments, but we need only discuss whether a conviction for a violation of Fla. Stat. § 790.23(1)(a) constitutes a firearm offense under 8 U.S.C. § 1227(a)(2)(C) and 18 U.S.C. § 921(a)(3) (the statute that § 1227(a)(2)(C) looks to for the definition of "firearm"). That is because Mr. Simpson's other contention—that the failure to set out the time and place of the removal proceeding in the notice to appear deprived the immigration judge of jurisdiction—is foreclosed by our decision in Perez-Sanchez v. U.S. Att'y Gen. , 935 F.3d 1148, 1154 (11th Cir. 2019) (holding that the time-and-place requirement for a notice to appear under 8 U.S.C. § 1229(a)(1) is not jurisdictional).²

III

As pertinent here, the INA makes an alien removable if "at any time after admission [he] is convicted under any law of ... possessing ... any weapon, part, or accessory which is a firearm," as defined by 18 U.S.C. § 921(a). See 8 U.S.C. § 1227(a)(2)(C). A firearm, as defined by § 921(a)(3), is "(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm."

Mr. Simpson was convicted under Fla. Stat. § 790.23(1)(a). That statute makes it unlawful for a convicted felon "to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon including a tear gas gun or chemical weapon or device." Under Florida law, "ammunition" is an object that consists of "all of the following:" (a) "[a] fixed metallic or nonmetallic hull or casing containing a primer;" (b) "[o]ne or more projectiles, one or more bullets, or shot;" and (c) "[g]unpowder." Fla. Stat. § 790.001(19). A "concealed weapon" is "any dirk, metallic knuckles, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about such a person in such a manner as to conceal the weapon from the ordinary sight of another person." Fla. Stat. § 790.001(3)(a). The terms "dirk" and "billie" are not statutorily defined, but in common parlance a "dirk" is a "long, straight dagger" and a "billie" (sometimes spelled "billy") is a "club, heavy stick, [or] truncheon." See Webster's New World College Dictionary 144, 408 (4th ed. 2000). A "tear gas gun" or "chemical weapon or device" means "any weapon of such nature, except a device known as a ‘self-defense chemical spray.’ " Fla. Stat. § 790.001(3)(b).

IV

Determining whether a conviction falls within the scope of a listed offense under the INA has proven to be a complicated task. The Supreme Court has developed a hierarchy of approaches, and we summarize them before getting to the merits.³

A

The simplest (we say this guardedly) is the "categorical" approach, which asks whether a conviction under the relevant state or federal statute would categorically fit within the ambit of the offense listed in the INA:

Because Congress predicated deportation ‘on convictions, not conduct,’ th[is] approach looks to the statutory definition of the offense of conviction, not to the particulars of an alien's behavior. The state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. An alien's actual conduct is irrelevant to the inquiry, as the adjudicator must ‘presume that the conviction rested upon nothing more than the least of the acts criminalized’ under the state statute.

Mellouli v. Lynch , 575 U.S. 798, 805, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015) (citations omitted). See also Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (explaining that under the categorical approach a court compares "the elements of the statute forming the basis of the [person's] conviction with the elements of the ‘generic’ crime," and a conviction under the statute will constitute a conviction for the generic offense only "if the statute's elements are the same as, or narrower than, those of the generic offense"); Donawa v. U.S. Att'y Gen. , 735 F.3d 1275, 1281-83 (11th Cir. 2013) (applying the categorical approach, in an immigration case, with respect to a Florida narcotics statute).

If, however, the statute of conviction is broader than the federal generic definition and "punishes some conduct that would satisfy the elements of a federal felony and some conduct that would not," a court can employ the "modified categorical" approach to determine whether the underlying statute is "divisible." See Donawa , 735 F.3d at 1280. See also Pereida , 141 S.Ct. at 762-63. Whether a statute is divisible depends on whether alternatively listed items in the statute are "elements" or "means." See Descamps , 570 U.S. at 260-61, 133 S.Ct. 2276. The Supreme Court has distinguished the two terms by defining "elements" as "the ‘constituent parts’ of a crime's legal definition—the things the ‘prosecution must prove to sustain a conviction’ "—and "means" as the "various factual ways of committing some component [or element] of the offense" that need not be proved to the jury or admitted by the defendant. See Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248-49, 195 L.Ed.2d...