953 F.3d 1300
11th Cir.2020Background:
- Cyril George, a lawful permanent resident, pleaded guilty in 1994 to New York Penal Law §130.20 ("sexual intercourse with a female without her consent").
- New York defines lack of consent by either forcible compulsion or victim being under 17 (including statutory rape).
- A criminal complaint alleged George forced a 12‑year‑old at gunpoint to have sex; the complaint charged two counts describing both forcible and statutory grounds.
- George’s plea record cited only the §130.20 statute and did not specify which alternative (forcible compulsion or victim’s age) formed the basis of the plea.
- DHS charged removability as an aggravated felony (rape) and as crimes involving moral turpitude; the BIA concluded the statute was divisible, relied on the criminal complaint to find forcible rape, and ordered removal.
- The Eleventh Circuit granted the petition, holding the record does not establish which statutory alternative George pleaded to and that the BIA improperly relied on factual allegations rather than the elements in applying the modified categorical approach; the case is vacated and remanded.
Issues:
| Issue | Plaintiff's Argument (George) | Defendant's Argument (DHS/BIA) | Held |
|---|---|---|---|
| Proper application of the modified categorical approach/divisibility | BIA erred: plea record doesn’t show which alternative element was admitted; cannot rely on complaint facts | Statute divisible as to lack of consent; use modified categorical approach and complaint to identify forcible-rape element | Held for George: record doesn’t show which alternative pleaded; BIA erred by treating complaint facts as dispositive |
| Use of criminal complaint as a Shepard document and as evidence of forcible rape | Complaint does not unambiguously identify the alternative element; facts in complaint may support either alternative | Complaint’s allegations (gun, 12‑year‑old) show forcible compulsion; thus conviction was forcible rape | Held for George on the record: even if complaint is a Shepard document, it does not establish that the plea was to forcible rape |
| Whether the §130.20 conviction is an aggravated‑felony rape | Conviction does not categorically qualify; lacking record proof of forcible element, cannot treat as aggravated felony | If plea was to forcible rape, it qualifies as aggravated felony rape | Court did not decide on the substantive fit because record fails to show forcible-rape element; remanded |
| Whether the conviction is a crime involving moral turpitude | BIA’s factual finding that forcible rape involves depravity is insufficient without showing plea was to forcible rape | Forcible rape is a crime involving moral turpitude; thus removable if that was the pleaded basis | Court did not decide because it concluded the plea record was ambiguous; remanded |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (explains limits and purpose of the modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (clarifies use of charging documents to identify the element of conviction)
- Shepard v. United States, 544 U.S. 13 (identifies documents permissible to consult under the modified categorical approach)
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (applies categorical approach to statutory rape context)
- Sama v. U.S. Att’y Gen., 887 F.3d 1225 (Eleventh Circuit standard of review for BIA decisions)
- Gelin v. U.S. Att’y Gen., 837 F.3d 1236 (Eleventh Circuit on categorical/modified categorical analysis)
- Gordon v. U.S. Att’y Gen., 861 F.3d 1314 (Eleventh Circuit on identifying elements under the modified categorical approach)
- Cano v. U.S. Att’y Gen., 709 F.3d 1052 (Eleventh Circuit on moral turpitude involving baseness and depravity)