Alban Lukaj v. U.S. Attorney General, 953 F.3d 1305

Alban Lukaj, an Albanian national and lawful permanent resident, was convicted in Florida of (1) 2009 drug offenses and (2) 2010 aggravated battery with a firearm (Fla. Stat. § 784.045(1)(a)); he received a 10-year sentence for the aggravated battery.
DHS charged Lukaj as removable and the IJ found his convictions were aggravated felonies, initially classifying the aggravated-battery conviction under the residual clause of 18 U.S.C. § 16(b).
The Eleventh Circuit previously granted part of Lukaj’s petition and remanded after the Supreme Court in Sessions v. Dimaya invalidated § 16(b); the case returned to the BIA to reassess classification.
On remand the BIA concluded the Florida aggravated-battery statute is divisible and that Lukaj’s conviction categorically qualifies as a crime of violence under the elements clause, 18 U.S.C. § 16(a), relying on Turner and Vereen.
The BIA affirmed that Lukaj’s aggravated-felony conviction made him ineligible for asylum, cancellation of removal, and withholding of removal; Lukaj appealed again challenging the classification and seeking review of the denial of his deferral-of-removal application.
The Eleventh Circuit denied Lukaj’s challenge to the aggravated-felony classification and dismissed his challenge to the deferral denial for lack of jurisdiction due to failure to exhaust administrative remedies.

Issue	Lukaj's Argument	Government's Argument	Held
Whether Fla. § 784.045(1)(a) is divisible and whether Lukaj’s aggravated-battery conviction qualifies as a "crime of violence" under 18 U.S.C. § 16(a)	§ 784.045(1)(a) is indivisible and the offense lacks the physical-force element required by § 16(a)	The statute is divisible; either alternative (great bodily harm or deadly weapon) requires violent physical force and supports classification under § 16(a)	Court: statute is divisible; conviction satisfies § 16(a) under Turner and Vereen; petition challenging classification denied
Whether the court may review the denial of Lukaj’s application for deferral of removal under the Convention Against Torture	BIA should have reviewed or the court should remand to allow reconsideration of deferral	Lukaj did not challenge the denial before the BIA, so he failed to exhaust administrative remedies	Court: lacks jurisdiction to review deferral denial; that part of the petition dismissed

Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (holding § 16(b) residual clause void for vagueness)
United States v. Vereen, 920 F.3d 1300 (11th Cir. 2019) (holding Fla. § 784.045(1)(a) divisible and qualifies as a violent felony under the elements clause)
Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013) (concluding both alternatives of Fla. aggravated-battery statute involve violent force)
Mathis v. United States, 136 S. Ct. 2243 (2016) (describing the modified categorical approach and permissible record evidence)
Johnson v. United States, 559 U.S. 133 (2010) (explaining statute divisibility and when to apply the modified categorical approach)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach presumes conviction rests on least culpable conduct)
Amaya-Artunduaga v. U.S. Att'y Gen., 463 F.3d 1247 (11th Cir. 2006) (exhaustion of administrative remedies required before federal review)
Bourdon v. U.S. Dep’t of Homeland Sec., 940 F.3d 537 (11th Cir. 2019) (agency concessions are not binding on the court)
Choizilme v. U.S. Att'y Gen., 886 F.3d 1016 (11th Cir. 2018) (de novo review whether a conviction qualifies as an aggravated felony)