Yvon Destin v. U.S. Attorney General , 345 F. App'x 485 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-15994 ELEVENTH CIRCUIT
SEPTEMBER 21, 2009
________________________
THOMAS K. KAHN
CLERK
Agency No. A91-986-962
YVON DESTIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 21, 2009)
Before EDMONDSON, BLACK and SILER,* Circuit Judges.
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
PER CURIAM:
Petitioner Yvon Destin (“Petitioner”), a native and citizen of Haiti and
lawful permanent resident of the United States since 1990, asks this Court to
review decisions of the Board of Immigration Appeals (“BIA”). The BIA reversed
the Immigration Judge (“IJ”) twice: first after the IJ terminated proceedings and
second after the IJ granted cancellation of removal. The BIA then ordered
Petitioner removed from the United States to Haiti. No reversible error has been
shown; we affirm the BIA’s decision.
Background
For this appeal these are the issues: (1) whether Petitioner’s 1999 conviction
for assault and battery with a dangerous weapon, under M ASS. G EN. L AWS ch. 265,
§ 15A (1999), is a crime involving moral turpitude; and (2) whether it is an
aggravated felony.
At first, the IJ terminated removal proceedings after deciding that Petitioner
had committed no crime involving moral turpitude. On appeal, the BIA reversed
and decided Petitioner was removable because he had been convicted of a crime
involving moral turpitude. The BIA remanded for a determination on Petitioner’s
eligibility for other forms of relief. Before the IJ, the Petitioner asked for
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cancellation of removal under 8 U.S.C. § 1229b. The IJ decided Petitioner was
eligible for cancellation of removal under 8 U.S.C. § 1229b(a) because he was a
long-time permanent resident and his crime included insufficient force to be a
crime of violence: getting Petitioner around the exclusion for those convicted of
aggravated felonies. On appeal, the BIA decided Petitioner was not eligible for
cancellation of removal because his crime was a crime of violence and therefore an
aggravated felony.
Standard of Review
“When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision.” Hernandez v. U.S. Att’y
Gen., 513 F.3d 1336, 1338-39 (11th Cir. 2008). When an alien who seeks review
of a removal order has been convicted of an aggravated felony or a crime involving
moral turpitude, this Court’s jurisdiction to review the petition is limited to review
of constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C) and (D).
Although the Court reviews whether a crime involves moral turpitude, and other
questions of law, de novo, this Court will defer to the BIA’s interpretation if it is
reasonable. Sosa-Martinez v. U.S. Att’y Gen., 420 F.3d 1338, 1341 n.2 (11th Cir.
2005) (reviewing whether a crime involves moral turpitude), and Bahar v.
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Ashcroft, 264 F.3d 1309, 1311 (11th Cir. 2001) (“[W]e will defer to the [BIA’s]
interpretation if it is reasonable.”)
Discussion
To determine whether a petitioner’s conviction is for a crime involving moral
turpitude, we look first to the statute itself and apply the categorical inquiry
adopted by the Supreme Court in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007). Matter of Cristoval Silva-Trevino, 24 I. & N. Dec. 687, 696-98 (A.G.
2008) (concluding that in evaluating whether an alien’s prior offense is
categorically one that involved moral turpitude, immigration judges should
determine whether a realistic probability, not a theoretical possibility, exists that a
criminal statute would be applied to reach conduct that does not involve moral
turpitude); see also Serrato-Soto v. Holder, 570 F.3d 686, 689 (6th Cir. 2009)
(applying the categorical approach to determine whether a crime involves moral
turpitude). This inquiry requires categorical comparison of the elements of the
statute of conviction to the generic definition of moral turpitude and a
determination of whether there is a realistic probability that ch. 265, § 15A would
be applied to conduct that falls outside the generic definition of a crime involving
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moral turpitude.1 A petitioner can point to relevant cases or his own case to show
that conduct outside the generic definition of moral turpitude has been punished by
the statute. See Duenas-Alvarez, 549 U.S. at 193. If this kind of conduct has been
punished, then the offense is not a categorical crime involving moral turpitude; and
an adjudicator must engage in a second-stage inquiry. Silva-Trevino, 24 I. & N.
Dec. at 698-99.
“[T]he offense of assault and battery by means of a dangerous weapon under
[ch. 265, § 15A], requires that the elements of assault be present, that there be a
touching, however slight, that that touching be by means of the weapon, and that
the battery be accomplished by use of an inherently dangerous weapon, or by use
of some other object as a weapon, with the intent to use that object in a dangerous
or potentially dangerous fashion.” Com. v. Appleby, 380 Mass. 296, 308 (Mass.
1980) (internal citations omitted). The Supreme Judicial Court of Massachusetts
defined a dangerous weapon as one that is designed or constructed to produce great
bodily harm or one that is capable of causing such harm. Id. at 303-04.
The BIA has previously defined a violation of ch. 265, § 15A as “an offense
1
A crime of moral turpitude involves “an act of baseness, vileness, or depravity in the
private and social duties which a man owes to his fellow men, or to society in general, contrary
to the accepted and customary rule of right and duty between man and man.” Sosa-Martinez,
420 F.3d at 1341 (internal quotations omitted).
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involving an evil intent, as shown by the use of the . . . dangerous weapon–a crime
involving moral turpitude.” Matter of J-, 4 I. & N. Dec. 512, 515 (BIA 1951).
This Court has already decided that intentional battery involving a deadly weapon
is a crime involving moral turpitude. Sosa-Martinez, 420 F.3d at 1342. And we
reject Petitioner’s argument that his own conviction under the statute shows that
the statute punishes conduct outside the realm of crimes involving moral turpitude.
Though Petitioner claims his conviction came after he merely threw a pair of shoes
at the victim, the BIA found Petitioner’s use of the shoes as a dangerous weapon to
be vile and having the potential to cause great harm. We determine that this
circumstance is consistent with a crime involving moral turpitude. In our review,
we see nothing about ch. 265, § 15A , including Petitioner’s conviction under it,
that makes us believe a realistic probability exists that it would be applied to reach
conduct that does not involve moral turpitude. See Silva-Trevino, 24 I. & N. Dec.
at 698 (citing Duenas-Alvarez, 549 U.S. at 193). Accordingly, we conclude that a
violation of ch. 265, § 15A is categorically a crime involving moral turpitude.2
Although the BIA made its decision in 2007 without Silva-Trevino’s
guidance, we determine that the BIA’s analysis was sound and that its conclusion
2
Where the categorical approach is not dispositive, adjudicators engage in a second-stage
inquiry. But having come to our conclusion based on the categorical inquiry, we need not do so
here. See Silva-Trevino, 24 I. & N. Dec. at 698-99.
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is consistent with the approach that is now controlling. The BIA reviewed the state
statute and considered whether the statute punished crimes that BIA precedents
have decided to be crimes involving moral turpitude. The BIA concluded that,
while simple assault or battery was generally not a crime involving moral
turpitude, an assault and battery that involves an aggravating dimension as an
element, here a dangerous weapon, is elevated to one of moral turpitude. Keeping
in mind both Silva-Trevino and our deferential standard of review of reasonable
BIA determinations, we approve of the BIA’s decision on this issue.
About whether Petitioner’s conviction is a crime of violence, making it an
aggravated felony, we turn to the statutory requirements.3 The phrase “crime of
violence” is defined in 18 U.S.C. § 16 as: “(a) an offense that has as an element the
use, attempted use, or threatened use of physical force against the person or
property of another, or (b) 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.” To determine
3
A conviction for an aggravated felony makes an alien ineligible for cancellation of
removal. 8 U.S.C. § 1229b(a)(3). An aggravated felony under 8 U.S.C. § 1101(a)(43)(F) is “a
crime of violence (as defined in section 16 of Title 18, but not including a purely political
offense) for which the term of imprisonment at least one year.” Because Petitioner was
sentenced to at least one year, whether his crime is a disqualifying aggravating felony turns on
whether his conviction is for a “crime of violence” under 18 U.S.C. § 16.
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whether a conviction qualifies as a crime of violence, this Court looks to the
elements and the nature of the offense of conviction, not the particular facts of a
petitioner’s crime. Hernandez v. U.S. Att’y Gen., 513 F.3d 1336, 1339 (11th Cir.
2008). The Supreme Judicial Court of Massachusetts explained that “intentional
application of force ” is an element of a violation of 265, § 15A. Appleby, 380
Mass. at 307. Accordingly, we conclude that the BIA did not err when it
concluded that Petitioner’s conviction is for a crime of violence and, therefore, an
aggravated felony that made him ineligible for cancellation of removal under 8
U.S.C. § 1229b(a)(3).
Conclusion
For the foregoing reasons, we affirm the BIA.
AFFIRMED.
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