Vilon Cesar v. U.S. Attorney General , 240 F. App'x 856 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 20, 2007
No. 06-15140 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A74-288-155
VILON CESAR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 20, 2007)
Before ANDERSON, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Petitioner Vilon Cesar, a native and citizen of Haiti, petitions for review of
the Board of Immigration Appeals’s (“BIA”) final order finding him removable for
having committed a crime of domestic violence. See INA § 237(a)(2)(E)(i); 8
U.S.C. § 1227(a)(2)(E)(i). Cesar was convicted of assault, in violation of Fla. Stat.
§ 784.011. The BIA found that the victim of this assault was Cesar’s niece, who
was residing with him at the time of the offense, and that the niece was a person
protected by the domestic violence laws of Florida, pursuant to Fla. Stat.
§ 741.28(3).
Cesar argues that, under 8 U.S.C. § 1227(a)(2)(E)(i), a conviction is not for a
“crime of domestic violence” as intended by the statute, unless the offense of
conviction specifically penalizes violence against a family member. Therefore,
Cesar asserts, the immigration judge could not merely rely on a police report to
determine whether his assault conviction was for a “crime of domestic violence.”
As an initial matter, we note that, as the parties agree, 8 U.S.C.
§ 1252(a)(2)(C)-(D) does not limit our jurisdiction to consider Cesar’s petition
because he presents only an issue of statutory interpretation, which is a question of
law.
We review the BIA’s statutory interpretation de novo, applying the two-step
test articulated in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-43, 104 S. Ct. 2778, 2781-82. See Scheerer v. U.S. Att’y Gen., 445 F.3d
1311, 1319 (11th Cir. 2006). Where, as here, the BIA has issued its own opinion,
2
we exclusively review that decision, except to the extent that it expressly adopts
the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
An alien is removable if he commits a “crime of domestic violence.” 8
U.S.C. § 1227(a)(2)(E)(i). A “crime of domestic violence” is a “crime of
violence,” as defined in 18 U.S.C. § 16, that is committed against a variety of
particular victims, including “any other individual person who is protected from
[the alien’s] acts under the domestic or family violence laws of the United States or
any State. . . .” Id. Florida law protects “persons who are presently residing
together as if a family or who have resided together in the past as if a family” from
domestic violence. Fla. Stat. § 741.28(3).
Under the limitations of Taylor v. United States, 495 U.S. 575, 110 S. Ct.
2143 (1990) and Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), a
court determining the nature of a conviction may look at only statutory elements,
charging documents, jury instructions, written plea agreement, plea colloquy
transcript, and any explicit factual findings of the trial court to which the defendant
assented or otherwise adopted. Obasohan v. United States Att’y. Gen., 479 F.3d
785, 788-89 (11th Cir. 2007).
Neither Cesar nor the government contests the BIA’s rulings that (1) the
determination of whether a conviction is a “crime of violence” under 18 U.S.C.
§ 16 and 8 U.S.C. § 1227(a)(2)(E)(i) is limited to Taylor and Shepard materials; or
3
(2) Cesar’s conviction for assault under Fla. Stat. § 784.011 was a “crime of
violence” within the meaning of 18 U.S.C. § 16.
Cesar does, however, contest the BIA’s ruling that the determination of
whether a particular crime of violence was a crime of domestic violence is not
limited by the evidentiary requirements established in Taylor and Shepard. This is
an issue of first impression in this circuit. Other circuits reaching this issue have
split on the result. Compare Flores v. Ashcroft, 350 F.3d 666, 668-71 (7th Cir.
2003) (agreeing with the BIA’s interpretation) with Tokatly v. Ashcroft, 371 F.3d
613, 619-24 (9th Cir. 2004) (disagreeing with the BIA’s interpretation).
After reviewing the record, we conclude that we need not reach the question
of statutory interpretation because Cesar admitted to the facts necessary to show
that the victim of his assault conviction was a person protected under the domestic
violence laws of the state of Florida. See United States v. Bennett, 472 F.3d 825,
832-34 (11th Cir. 2006) (holding that, under the evidentiary strictures of Shepard,
where a defendant admitted—by not objecting to the Presentence Investigation
Report and by statements at his sentencing hearing—that his robbery convictions
were for residential robberies, the sentencing court could rely on these admissions
in determining whether the robberies were violent felonies). Here, Cesar admitted
that (1) his victim was his niece; (2) she resided with him at the time; (3) he had
legal custody of her; and (4) he treated her as if she was his own daughter.
4
Therefore, she was a person protected by the domestic violence laws of the state of
Florida. See Fla. Stat. § 741.28(3). As such, the BIA’s determination that Cesar’s
conviction was for a crime of domestic violence is fully supported, even if we only
consider Taylor/Shepard materials. See Bennett, 472 F.3d at 832-34. Accordingly,
we deny Cesar’s petition.
PETITION DENIED.
5