Rogelio Pedro-Domingo v. U.S. Attorney General , 367 F. App'x 112 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13630 ELEVENTH CIRCUIT
FEBRUARY 25, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency Nos. A028-861-464, A098-978-514
ROGELIO PEDRO-DOMINGO,
PETRONA MANUEL-JIMENEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 25, 2010)
Before TJOFLAT, BARKETT and WILSON Circuit Judges.
PER CURIAM:
Rogelio Pedro-Domingo and his wife, Petrona Manuel-Jimenez,1 petition for
review of the Board of Immigration Appeals (“BIA”) decision affirming an
Immigration Judge (“IJ”) removal order that found Pedro-Domingo ineligible for
both special rule cancellation2 and cancellation of removal3 because he was
convicted of an aggravated felony in the United States. Pedro-Domingo contends
that the BIA erred in holding that his conviction for resisting an officer with
violence, Fla. Stat. § 843.01, constitutes a “crime of violence” under 18 U.S.C. §
16 and therefore, an aggravated felony as defined by the Immigration and
Nationality Act (“INA”) § 101(a)(43), 8 U.S.C. § 1101(a)(43). Because resisting
an officer with violence is an aggravated felony, we deny Pedro-Domingo’s
petition.
1
Because Manuel-Jimenez’s request for relief from removal is as a derivative spouse and
she makes no independent request for any form of relief, we refer only to Pedro-Domingo and
his claims.
2
Pedro-Domingo requested relief through a special rule cancellation of removal under
the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NACARA”), Pub. L. No.
105-100, § 203, 111 Stat. 2160, 2196-99. NACARA provides that a Guatemalan national who
filed an application for asylum with the Immigration and Naturalization Service (“INS”) on or
before April 1, 1990 can obtain cancellation of removal if he or she meets certain conditions.
NACARA § 203. One condition is that the applicant cannot have been convicted of an
aggravated felony in the United States. NACARA § 203(f)(1)(B)(ii).
3
Pedro-Domingo also requested relief under section 240A(b) of the Immigration and
Nationality Act (“INA”), which gives the U.S. Attorney General discretion to cancel removal of
persons who have been continually present in the United States for ten or more years and have
been persons of good moral character during that period if they establish that removal would
result in exceptional and extremely unusual hardship to a spouse, parent, or child who is a citizen
or permanent resident of the United States. INA § 240A(b), 8 U.S.C. § 1229b(b)(1) (2006).
However, persons convicted of an aggravated felony in the United States are ineligible for
cancellation. INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C).
2
We have jurisdiction to review questions of law raised in a petition for
review of a removal order under INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).
We review de novo a BIA determination that a particular conviction is an
aggravated felony within the meaning of the INA. Hernandez v. U.S. Att’y Gen.,
513 F.3d 1336, 1339 (11th Cir. 2008) (citing Balogun v. U.S. Att’y Gen., 425 F.3d
1356, 1360 (11th Cir. 2005)).
Pedro-Domingo argues that “resisting an officer with violence,” as defined
by the Florida statute under which he was convicted, does not qualify as an
aggravated felony under the INA4 because it does not require the intentional use of
force against an officer to obtain a conviction.5
However, 18 U.S.C. § 16(b) defines “crime of violence” as:
any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the
person or property of another may be used in the course
of committing the offense.
18 U.S.C. § 16(b). The Supreme Court held that this covers offenses that naturally
4
The INA defines an aggravated felony as a crime of violence, as defined in 18 U.S.C. §
16 (but not including a purely political offense), for which the term of imprisonment is at least
one year. INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). Because Pedro-Domingo does not
claim that he was sentenced to a term of imprisonment of less than one year or that his crime is a
purely political offense, the only issue before us is whether the offense is a crime of violence.
5
Pedro-Domingo also claims that resisting arrest with violence does not require that the
defendant intentionally harm the officer to obtain an conviction. However, under 18 U.S.C. §
16(b), the harm intended or caused by the offender’s conduct is not relevant. Leocal v. Ashcroft,
543 U.S. 1, 10 n.7 (2004) (“Thus, § 16(b) plainly does not encompass all offenses which create a
‘substantial risk’ that injury will result from a person’s conduct. The ‘substantial risk’ in § 16(b)
relates to the use of force, not to the possible effect of a person’s conduct.”).
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involve a person acting in disregard of the substantial risk that the use of physical
force might be required in committing the crime, emphasizing that the relevant risk
is that force will be used, not that injury or harm will result from the offender’s
conduct. Leocal, 543 U.S. at 10, 10 n.7. The Court also held that to be a crime of
violence under 18 U.S.C. § 16(b), there must be a substantial risk inherent to the
offense that the offender will actively employ force with a higher degree of intent
than negligence. Id. at 11.
We use a categorical approach to determine whether a prior conviction is a
crime of violence for INA removal purposes. Hernandez, 513 F.3d at 1339. That
is, we look only to the statutory definition of the offense to determine whether it
fits the definition of a crime of violence, rather than to the particular facts relating
to an individual’s crime. Id. (quoting Leocal, 543 U.S. at 7 (2004)). Unless there
is a realistic probability that the statute would be applied to conduct outside the
scope of 18 U.S.C. § 16(b), the offense is a crime of violence. Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007).
Under Florida law, resisting an officer with violence is a felony: “Whoever
knowingly and willfully resists, obstructs, or opposes any officer . . . in the
execution of legal process or in the lawful execution of any legal duty, by offering
or doing violence to the person of such officer . . . is guilty of a felony of the third
degree[.]” Fla. Stat. § 843.01. To obtain a conviction, the state must prove that the
4
defendant intentionally impeded an officer’s performance of his or her duties by
using physical force against the officer’s person or threatening or attempting to do
so. Fla. Stat. § 843.01.
While a defendant need not actually use force to be convicted,6 the statute
fits the 18 U.S.C. § 16(b) definition of a crime of violence: attempting or
threatening to use physical force to impede an officer’s performance of his or her
duties naturally involves the substantial risk that the offender will use physical
force during the commission of the crime. Officers’ duties include detaining
suspects, breaking up fights, and other duties that routinely involve physical
intervention in confrontational circumstances, making it highly likely that an
attempt or threat to use force by a person interfering with the performance of those
duties will escalate into the actual use of force. See Canada v. Gonzales, 448 F.3d
560, 568 (2d Cir. 2006) (reasoning that there is an increased risk that an offender
who interferes with an officer’s official duties will use force due to the physical
and confrontational nature of those duties).
While some threats to do violence do not create a substantial risk that force
would actually be used, the Florida state courts have interpreted the statute to
require that the offender has the capacity to follow through on the threat to sustain
6
While Pedro-Domingo points to this fact, as discussed above, an offense can be a crime
of violence even if a conviction is possible in cases where the defendant did not use force, so
long as the offense naturally involves the substantial risk that physical force will be used during
the commission of the crime. 18 U.S.C. § 16(b).
5
a conviction. Kirkland v. State, 647 So.2d 142, 143-44 (Fla. Dist. Ct. App. 1994)
(citing Scullock v. State, 377 So.2d 682, 683 (Fla. 1979)) (overturning conviction
because hog-tied defendant did not have the capacity to follow through on his
verbal threats). This limitation makes it not realistically probable that the statute
will be applied to conduct that does not create a substantial risk that force might be
used, and we can find no cases where the statute was applied to conduct that does
not fall under the crime of violence definition.
Moreover, because the Florida statute defines resisting an officer with
violence as “knowingly and willfully” resisting an officer by “offering or doing
violence to the person of such officer[,]” Fla. Stat. § 843.01, it does require that the
offender acts with the requisite level of intent to be a crime of violence. See
Leocal, 543 U.S. at 11 (holding that 18 U.S.C. § 16(b) requires a higher level of
intent than accidental or negligent conduct). As the Florida Supreme Court held,
resisting an officer with violence is a general intent crime that requires the offender
to act with knowledge and intent to resist, obstruct, or impede an officer. Frey v.
State, 708 So.2d 918, 920 (Fla. 1998). While it is conceivable that a person could
accidentally use force against an officer while intentionally impeding his or her
official duties (for example, by being shoved or stumbling into an officer while
refusing to submit to a legal search), we can find no examples of convictions under
the statute in such circumstances. The substantial risk inherent to the offense is
6
that the offender will intentionally use force against an officer, not that force might
be used accidentally or negligently. See, e.g. Scullock, 377 So.2d at 683
(reasoning that defendant’s conduct indicated that he intended to act on his threat
to shoot).
Under our categorical approach, Pedro-Domingo’s conviction qualifies as a
crime of violence under 18 U.S.C. § 16(b) and therefore, as an aggravated felony
under INA § 101(a)(43)(F), 8 U.S.C. § 1101 (a)(43)(F). Accordingly, the BIA did
not err in affirming the IJ’s order finding Pedro-Domingo ineligible for both
special rule cancellation of removal, under NACARA § 203(f), and cancellation of
removal, under INA § 240A(b).
PETITION DENIED.
7