879 F.3d 1241
11th Cir.2018Background
- Jimmy Pierre, a Haitian native and lawful permanent resident since 2005, pled guilty in Florida (Dec. 2009) to battery of a child under Fla. Stat. § 784.085 (throwing/projecting blood, seminal fluid, urine, or feces at a child) and received probation.
- DHS charged Pierre as removable under 8 U.S.C. § 1227(a)(2)(E)(i) (crime of child abuse). The IJ found him removable and concluded the Florida statute matched the BIA’s generic definition of child abuse.
- Pierre applied for cancellation of removal; the government moved at the merits hearing to pretermit the application, arguing Pierre’s conviction was a crime involving moral turpitude (CIMT) that triggered the INA “stop‑time” rule, rendering him ineligible.
- The IJ ruled the Florida conviction was both a crime of child abuse and a CIMT, granted the government’s motion to pretermit, and denied Pierre a continuance to file alternate relief; the BIA affirmed.
- On petition for review, the Eleventh Circuit applied the categorical approach with Chevron deference to the BIA’s definitions and upheld (1) that § 784.085 is categorically a crime of child abuse and (2) that it is categorically a CIMT; the court also rejected Pierre’s procedural due process challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fla. Stat. § 784.085 is a "crime of child abuse" under INA | Pierre: statute is not a categorical child‑abuse offense (attempt language, no actual injury required) | Government: statute (including attempt) fits BIA’s broad definition of child abuse and endangerment crimes | Held: Yes — statute categorically qualifies as a crime of child abuse (BIA definitions reasonable; least‑culpable conduct meets definition) |
| Whether § 784.085 is a "crime involving moral turpitude" (CIMT) | Pierre: some hypotheticals (e.g., urinating on jellyfish sting) show nongeneric, non‑vile applications | Government: knowing projection of bodily fluids at a child is inherently base and targets a vulnerable class, thus a CIMT | Held: Yes — conviction requires knowing conduct aimed at a child and is categorically a CIMT; hypothetical concerns are not shown by actual state prosecutions |
| Whether the IJ’s grant of government’s last‑minute motion to pretermit violated procedural due process | Pierre: late filing and denial of continuance denied opportunity to respond and to file alternate relief (asylum/CAT) | Government: even with timely filing, outcome would be the same because conviction makes him ineligible; Pierre had prior notice and opportunity | Held: No — Pierre failed to show substantial prejudice or that outcome would differ; IJ’s denial of continuance and refusal to accept late alternate applications did not violate due process |
| Whether IJ should have allowed additional time to file alternate forms of relief | Pierre: counsel had insufficient time and had relied on cancellation as best relief | Government: Pierre was given deadlines earlier and had years to prepare alternate relief | Held: No — IJ and BIA reasonably concluded Pierre had adequate notice and opportunity; denial of continuance not an abuse |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (agency interpretations of ambiguous statutes reviewed under Chevron)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (statutory overbreadth requires realistic probability of state applying statute to nongeneric conduct)
- Gelin v. U.S. Attorney General, 837 F.3d 1236 (categorical approach and factors for child‑abuse/CIMT analysis)
- Sosa‑Martinez v. U.S. Attorney General, 420 F.3d 1338 (CIMT depends on inherent nature of statutory offense)
- Cano v. U.S. Attorney General, 709 F.3d 1052 (definition of moral turpitude)
- Resendiz‑Alcaraz v. U.S. Attorney General, 383 F.3d 1262 (procedural due process in removal proceedings)
- Ibrahim v. INS, 821 F.2d 1547 (substantial prejudice requires showing the outcome would have been different)