Case: 18-14000 Date Filed: 03/26/2020 Page: 1 of 10
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14000
________________________
Agency No. A041-091-230
CYRIL MCDONALD GEORGE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 26, 2020)
Before WILLIAM PRYOR, JILL PRYOR, and LUCK, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
This petition for review requires us to decide whether the Board of
Immigration Appeals erred when it ruled that Cyril George’s conviction for sexual
misconduct, N.Y. Penal Law § 130.20, qualifies, under the modified categorical
Case: 18-14000 Date Filed: 03/26/2020 Page: 2 of 10
approach, as the aggravated felony of rape, 8 U.S.C. § 1101(a)(43)(A), and a crime
involving moral turpitude,
id. § 1227(a)(2)(A)(ii).
In 1994, George pleaded guilty
to violating a New York statute that forbade “sexual intercourse with a female
without her consent.” N.Y. Penal Law § 130.20 (1994). New York law provides
that lack of consent can arise from either “[f]orcible compulsion” or a victim being
“less than seventeen years old.”
Id. § 130.05(2)(a), (3)(a). The Department of
Homeland Security charged George with removability on the grounds that his
conviction qualified as both an aggravated felony and a crime involving moral
turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii)–(iii). The Board agreed. It ruled that the
New York statute defines two crimes—forcible rape and statutory rape—not a
single crime that can be committed in two ways. The Board then considered factual
allegations from a criminal complaint that George forced a 12-year-old girl to have
sex with him at gunpoint. Based on that complaint, the Board concluded that
George pleaded guilty to forcible rape, not statutory rape, and it ruled that his
crime qualified as both the aggravated felony of rape and a crime involving moral
turpitude. But the Board erred under the modified categorical approach. The
criminal complaint fails to specify whether George pleaded guilty to forcible rape,
and the plea record otherwise fails to make clear whether he pleaded guilty to that
crime. We grant his petition for review, vacate the Board’s decision, and remand
for further proceedings.
2
Case: 18-14000 Date Filed: 03/26/2020 Page: 3 of 10
I. BACKGROUND
Cyril George, a citizen of Trinidad and Tobago, immigrated to the United
States in 1986 at age 10 and became a lawful permanent resident two years later. In
1994, at age 18, he pleaded guilty in a New York court to sexual misconduct. See
N.Y. Penal Law § 130.20 (1994). His statute of conviction forbade a male to
engage in “sexual intercourse with a female without her consent.”
Id. Under New
York law, lack of consent can arise from either “[f]orcible compulsion” or a victim
being “less than seventeen years old.”
Id. § 130.05(2)(a), (3)(a). Several years
later, in 2001, George pleaded guilty to patronizing a prostitute. See
id. § 230.03.
The Department of Homeland Security later charged George with
removability on two grounds. First, it alleged that his conviction for sexual
misconduct qualified as the aggravated felony of rape, 8 U.S.C. § 1101(a)(43)(A).
See
id. § 1227(a)(2)(A)(iii) (providing that aliens “convicted of an aggravated
felony” are deportable). And second, it alleged that his sexual-misconduct and
prostitution convictions both qualified as crimes involving moral turpitude. See
id.
§ 1227(a)(2)(A)(ii) (providing that aliens “convicted of two or more crimes
involving moral turpitude, not arising out of a single scheme of criminal
misconduct,” are deportable).
An immigration judge ordered George removed based on these convictions,
and the Board of Immigration Appeals affirmed. The Board first concluded that
3
Case: 18-14000 Date Filed: 03/26/2020 Page: 4 of 10
George’s conviction for sexual misconduct did not categorically qualify as the
aggravated felony of rape because the statute covers some conduct—for example,
consensual sex with an almost-17-year-old—that is not generic rape. See N.Y.
Penal Law §§ 130.05, 130.20. But the Board ruled that the statute is divisible as to
lack of consent and applied the modified categorical approach to determine which
alternative element—forcible compulsion or his victim’s age—formed the basis of
George’s guilty plea.
The Board stated that the criminal complaint for George’s crime alleged
“that he engaged in sexual intercourse with a female by forcible compulsion, by
displaying what appeared to be a firearm.” The complaint contained a sworn
statement from George’s 12-year-old accuser to that effect. “In light of the
evidence that [George] used forcible compulsion to engage in sexual intercourse,”
the Board concluded that George’s “conviction for sexual misconduct qualifies as
an aggravated felony rape conviction.” And because “rape by forcible compulsion
involves baseness and depravity,” the Board ruled that the conviction also qualified
as a “crime involving moral turpitude.” See Cano v. U.S. Att’y Gen.,
709 F.3d
1052, 1053 (11th Cir. 2013) (explaining that crimes of moral turpitude involve
“act[s] of baseness, vileness, or depravity” (internal quotation marks omitted)).
The Board considered only the criminal complaint to determine whether
George pleaded guilty to forcible or statutory rape. The record of George’s guilty
4
Case: 18-14000 Date Filed: 03/26/2020 Page: 5 of 10
plea did not specify whether forcible compulsion or the victim’s age formed the
basis of his plea. It stated only that George pleaded guilty to violating the New
York statute that proscribes sexual misconduct, N.Y. Penal Law § 130.20.
The Board also affirmed the immigration judge’s other rulings. It agreed that
George’s prostitution conviction was a crime involving moral turpitude and that a
discretionary waiver of deportation, see 8 U.S.C. § 1182(c) (1994); I.N.S. v. St.
Cyr,
533 U.S. 289, 293, 326 (2001), would waive only the aggravated-felony
ground of removal, 8 U.S.C. § 1227(a)(2)(A)(iii), not the ground for aliens
convicted of two crimes involving moral turpitude,
id. § 1227(a)(2)(A)(ii).
II. STANDARD OF REVIEW
“We review the decision of the Board.” Sama v. U.S. Att’y Gen.,
887 F.3d
1225, 1231 (11th Cir. 2018). We review the Board’s legal conclusions, which are
the only rulings challenged here, de novo.
Id.
III. DISCUSSION
An alien is removable if he has a single conviction for an aggravated felony
or two convictions for crimes involving moral turpitude “not arising out of a single
scheme of criminal misconduct.” 8 U.S.C. § 1227(a)(2)(A)(ii)–(iii). George does
not challenge the ruling that his conviction for patronizing a prostitute is a crime
involving moral turpitude. So he is removable if his 1994 conviction for sexual
misconduct qualifies as either an aggravated felony or a crime involving moral
5
Case: 18-14000 Date Filed: 03/26/2020 Page: 6 of 10
turpitude. But he is not removable if the conviction qualifies as neither kind of
offense.
To determine whether an alien’s prior conviction qualifies as an aggravated
felony or a crime involving moral turpitude, we apply the categorical approach.
Esquivel-Quintana v. Sessions,
137 S. Ct. 1562, 1567–68 (2017); Gelin v. U.S.
Att’y Gen.,
837 F.3d 1236, 1241 (11th Cir. 2016). Under that approach, if the
alien’s statute of conviction is indivisible—that is, if it defines only one crime with
a single set of elements—we ask whether the least culpable conduct that the statute
makes criminal qualifies as an aggravated felony or a crime involving moral
turpitude.
Esquivel-Quintana, 137 S. Ct. at 1568;
Gelin, 837 F.3d at 1241. But if
the statute has “multiple, alternative elements, and so effectively creates several
different crimes,” we apply the modified categorical approach to identify the
alternative element used to convict the alien. Descamps v. United States,
570 U.S.
254, 264 (2013) (alteration adopted) (internal quotation marks omitted); see also
Gordon v. U.S. Att’y Gen.,
861 F.3d 1314, 1318 (11th Cir. 2017);
Gelin, 837 F.3d
at 1241.
Under the modified categorical approach, we consult “a limited class of
documents (for example, the indictment, jury instructions, or plea agreement and
colloquy) to determine what crime, with what elements, a defendant was convicted
of.” Mathis v. United States,
136 S. Ct. 2243, 2249 (2016). We “then do what the
6
Case: 18-14000 Date Filed: 03/26/2020 Page: 7 of 10
categorical approach demands” and determine whether “the elements of the crime
of conviction (including the alternative element used in the [alien’s] case)”
categorically fit within the federal definition of an aggravated felony or a crime
involving moral turpitude.
Descamps, 570 U.S. at 257; see also
Gordon, 861 F.3d
at 1318;
Gelin, 837 F.3d at 1241.
The Board ruled that, under the modified categorical approach, George’s
conviction for sexual misconduct qualified as both the aggravated felony of rape, 8
U.S.C. § 1101(a)(43)(A), and a crime involving moral turpitude,
id.
§ 1227(a)(2)(A)(ii).
The Board based its ruling on its conclusions that George’s
statute of conviction is divisible as to lack of consent and that he was convicted of
forcible rape, not statutory rape. Although the Board concluded that a conviction
for statutory rape would not qualify as the aggravated felony of rape, it did not
address whether statutory rape qualifies as a crime involving moral turpitude. It
had no need to reach that issue because it concluded that George was convicted of
forcible rape and that forcible rape is a crime involving moral turpitude.
The parties disagree about whether the Board erred in applying the modified
categorical approach. They dispute whether George’s statute of conviction is
divisible as to lack of consent, whether the criminal complaint the Department
submitted is a valid Shepard document, see Shepard v. United States,
544 U.S. 13,
16 (2005), and whether the complaint establishes the alternative element under
7
Case: 18-14000 Date Filed: 03/26/2020 Page: 8 of 10
which George was convicted. Because we agree with George that the criminal
complaint fails to establish that he pleaded guilty to forcible rape and not statutory
rape, we need not decide the other issues. Based on the record before the Board, its
conclusion that George pleaded guilty to forcible rape instead of statutory rape was
error even if the statute is divisible and the criminal complaint is a valid Shepard
document.
The modified categorical approach is only “a tool” that “helps implement the
categorical approach when a defendant was convicted of violating a divisible
statute.”
Descamps, 570 U.S. at 263. “It retains the categorical approach’s central
feature: a focus on the elements, rather than the facts, of a crime.”
Id. A tribunal
may consult the charging documents for a prior conviction only for the limited
purpose of determining which alternative element in a divisible statute was used to
convict a defendant. See
id. at 264. A tribunal “must not . . . consult those
documents ‘to discover what the defendant actually did’ and then compare that
conduct to the elements of the generic offense.” United States v. Howard,
742 F.3d
1334, 1347 (11th Cir. 2014) (quoting
Descamps, 133 S. Ct. at 2287). But the Board
made that exact error: it compared the facts of George’s crime, instead of the
elements to which he necessarily pleaded guilty, to the generic offenses.
The Board relied on a criminal complaint that contained a sworn statement
from George’s 12-year-old accuser to conclude that George pleaded guilty to
8
Case: 18-14000 Date Filed: 03/26/2020 Page: 9 of 10
forcible rape. The accuser’s sworn statement described the factual allegations on
which the complaint was based: “[T.S.] states that . . . [George] did demand
intercourse from [her] and when [she] refused . . . did point a black pistol at [her]
and . . . threatened to shoot [her]. [T.S.] further states that [George] did insert [his]
penis into [her] vagina . . . [twice]. [T.S.] further states she is 12 years of age.” In
addition to reciting these facts, the complaint stated that T.S. accused George of
committing two counts of sexual misconduct under New York law. See N.Y. Penal
Law § 130.20. It described the offenses that she accused George of committing as
“engag[ing] in sexual intercourse with a female by forcible compulsion” and
“engag[ing] in sexual intercourse with a person less than fourteen years old to
whom the actor was not married, while being eighteen years old or more.”
George later pleaded guilty to a single count of sexual misconduct, see
id.,
but the court record of his guilty plea provides no information about which kind of
rape George admitted to committing. The only information that record contains is a
citation to the New York statute that George pleaded guilty to violating. See
id.
And that statute prohibits both kinds of rape.
Id. §§ 130.05(2)(a), (3)(a), 130.20.
As George argues, neither the criminal complaint nor the record of his guilty
plea identifies the alternative element of sexual misconduct—forcible compulsion
or the victim’s age—to which he pleaded guilty. The factual allegations of the
complaint are consistent with both elements. And the legal offenses described in
9
Case: 18-14000 Date Filed: 03/26/2020 Page: 10 of 10
the complaint include both forcible rape and statutory rape. Because the complaint
accused George of two counts of sexual misconduct, one count may have been
based on forcible compulsion and the other on his victim’s age. But neither the
complaint nor the record of his guilty plea states that George pleaded guilty to
forcible rape as opposed to statutory rape. The Board erred in concluding that
George was convicted of forcible rape instead of statutory rape and affirming the
immigration judge’s order of removal on that basis.
Because the record of conviction does not make clear whether George
pleaded guilty to forcible or statutory rape, we need not decide whether the New
York statute is divisible as between those two different kinds of rape or whether
the criminal complaint is a valid Shepard document. Even if we resolved both
issues in the Department’s favor, the criminal complaint would still fail to establish
that George pleaded guilty to forcible rape. The Board also did not address whether
statutory rape is a crime involving moral turpitude, so we do not address that issue.
And we also need not address George’s alternative argument that he is eligible for
a discretionary waiver of deportation even if he is removable.
IV. CONCLUSION
We GRANT the petition for review, VACATE the Board’s decision, and
REMAND for further proceedings.
10
