28 F.4th 1169
11th Cir.2022Background:
- Emmanuel Lauture, an LPR, pleaded guilty in Florida (2010) to burglary of an unoccupied dwelling under Fla. Stat. § 810.02(3)(b) and was later imprisoned after a probation violation.
- DHS initiated removal proceedings in 2018, charging removal as an alien convicted of a crime involving moral turpitude (CIMT) within five years of admission.
- The immigration judge and the BIA found § 810.02 divisible and concluded Lauture’s conviction (under § 810.02(3)(b)) was a CIMT.
- Lauture argued the Florida precedent State v. Bennett (unsold, unoccupied mobile home on a sales lot can be a “dwelling”) showed a realistic probability Florida prosecutes non‑turpitudinous conduct under § 810.02(3)(b); the IJ and BIA did not address Bennett.
- The Eleventh Circuit held the Florida statute is divisible and that Lauture was convicted under § 810.02(3)(b), but vacated and remanded because the BIA failed to consider Bennett and related Florida decisions under the realistic‑probability categorical test.
- The court emphasized the government’s clear‑and‑convincing burden to prove removability and required the BIA to analyze whether Florida actually prosecutes non‑turpitudinous burglaries under § 810.02(3)(b).
Issues:
| Issue | Plaintiff's Argument (Lauture) | Defendant's Argument (Government/BIA) | Held |
|---|---|---|---|
| Whether Fla. § 810.02(3)(b) (burglary of an unoccupied dwelling) is categorically a CIMT | Bennett and related Florida law show a realistic probability Florida prosecutes non‑turpitudinous entries (so not a CIMT) | Dwelling definition requires suitability for habitation; BIA saw no Florida prosecutions involving a dwelling never occupied and concluded it is a CIMT | Court remanded: BIA erred by not addressing Bennett; left final CIMT determination to BIA on remand |
| Whether § 810.02 is divisible for categorical/modified categorical analysis | Argued statute not divisible (or that his offense might be non‑turpitudinous) | IJ/BIA: statute divisible into degree/subsections; conviction falls under § 810.02(3)(b) | Court agreed statute is divisible and that Lauture was convicted under § 810.02(3)(b) |
| Whether the government met its burden to show removability by clear and convincing evidence | Govt failed to meet clear‑and‑convincing standard given unaddressed precedent | Govt argued BIA’s ruling satisfied its burden | Court noted gov’t burden but remanded for BIA to reexamine record and precedent before resolving burden question |
| Whether the BIA properly applied the "realistic probability" test and considered Florida precedent (e.g., Bennett, Young) | BIA failed to address controlling Florida cases demonstrating prosecutions of never‑occupied dwellings | BIA found no Florida cases of truly never‑occupied dwellings prosecuted; govt contends Bennett limited or inapplicable | Court held BIA erred in not addressing Bennett and other Florida cases and remanded for BIA to evaluate realistic‑probability under controlling Florida law |
Key Cases Cited
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (establishing the "realistic probability" test for categorical inquiries)
- Mathis v. United States, 136 S. Ct. 2243 (distinguishing elements from means for divisibility analysis)
- Pereida v. Wilkinson, 141 S. Ct. 754 (burden to prove a conviction is not a disqualifying offense when statute is divisible)
- Moncrieffe v. Holder, 569 U.S. 184 (applicant must show State actually prosecutes non‑qualifying conduct to defeat categorical match)
- James v. United States, 550 U.S. 192 (Florida’s definition of "dwelling" broader than generic burglary)
- United States v. Esprit, 841 F.3d 1235 (11th Cir. holding Florida burglary reaches beyond generic burglary)
- State v. Bennett, 565 So. 2d 803 (Fla. Dist. Ct. App. 1990) (unsold, unfurnished/prepared mobile home on sales lot can be a "dwelling")
- Young v. State, 141 So. 3d 161 (Fla. 2013) (occupancy not required; suitability for habitation controls dwelling definition)
- Diaz‑Flores v. Garland, 993 F.3d 766 (9th Cir. 2021) (upholding BIA extension that unoccupied but intermittently occupied dwellings can be CIMTs)
- Uribe v. Sessions, 855 F.3d 622 (4th Cir. 2017) (holding burglary of unoccupied dwellings can be a CIMT where dwelling remains suitable for occupancy)