by Sam Rutherford

The U.S. Court of Appeals for the Eleventh Circuit held that an asylee’s convictions in Florida state court for possession of marijuana under Fla. Stat. § 893.13(6)(b) and for lewd and lascivious battery under Fla. Stat. § 800.04(4) (2008) does not subject him to removal under the Immigration and Nationality Act (“INA”).

Background

Marken Leger, a citizen of Haiti, has lived in the U.S. as an asylee since 2000. In 2009, he pleaded no contest to a charge of lewd and lascivious battery, in violation of § 800.04(4). In 2013 and again in 2018, Leger pleaded no contest to possession of marijuana, in violation of § 893.13(6)(b).

The Government served Leger with a notice to appear in 2019, initiating removal proceedings against him pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i), and (a)(2)(E)(i). The notice did not include a hearing date and time. The immigration court, however, sent Leger a hearing notice indicating the removal proceedings would commence on July 9, 2019. Leger appeared at the hearing and requested a continuance to retain counsel.

Leger’s counsel appeared on his behalf at a hearing held in September 2019, arguing that the removal proceeding should be terminated because the initial notice to appear was defective by not listing the date and time of the removal hearing. The immigration judge denied the motion.

Leger, through counsel, then admitted to some of the facts set forth in the Government’s notice to appear but argued that his prior convictions do not qualify him for removal. The immigration judge concluded that Leger was removable under the INA because his marijuana convictions constituted controlled substances offenses and his lewd and lascivious battery conviction was an aggravated felony. The immigration judge, however, did not determine whether Leger’s status as an asylee should be terminated.

Leger timely appealed to the Board of Immigration Appeals (“BIA”), which reversed and remanded to the immigration court because the judge had not determined whether Leger’s asylee status should be terminated. On remand, the immigration judge terminated Leger’s asylee status after concluding that his lewd and lascivious battery conviction constituted sexual abuse of a minor under federal law and was therefore an aggravated felony qualifying Leger for termination and removal under the INA.

Leger again timely appealed to the BIA, but a single member dismissed the appeal and affirmed the immigration judge’s decision. Leger timely filed a petition for review of that decision in the Eleventh Circuit.

Analysis

On review, the Court addressed three issues: (1) whether Leger’s marijuana convictions constituted controlled substance offenses under the INA, (2) whether Leger’s conviction for lewd and lascivious battery constituted sexual abuse of a minor and is therefore an aggravated felony under the INA, and (3) whether the Government’s notice to appear was defective by failing to include the date and time of the removal hearing.

The Court began with what it described as “the easier of the issues,” i.e., whether Leger’s marijuana possession convictions constituted controlled substance offenses. Under the INA, noncitizens convicted of controlled substance offenses are removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) and inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(A)(i). For a state court drug conviction to qualify as a controlled substance offense under federal law, the relevant state and federal statutes must be comparable, irrespective of the noncitizen’s actual conduct underlying the conviction. Said v. U.S. Attorney General, 28 F.4th 1328 (11th Cir. 2022).

In Said, decided just three weeks after the BIA rejected Leger’s appeal, the Eleventh Circuit held that marijuana possession convictions under Fla. Stat. § 893.13(6)(b) are not comparable to federal law because the state statute defines marijuana to include all parts of a marijuana plant while the federal statute defining a controlled substance, 21 U.S.C. § 802(16), does not. Thus, the Court determined that Said controls and held that “Leger’s marijuana possession convictions therefore do not constitute controlled substance offenses as defined under federal law,” and the BIA erred in determining that he “was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) and inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(A)(i).”

The next issue was whether the BIA properly determined that Leger’s status as an asylee was properly canceled based on his conviction for lewd and lascivious battery. Under the INA, asylum may be terminated, and the asylee removed if he has been convicted of a “particularly serious crime.” 8 U.S.C. § 1158(b)(2)(A)(ii), (c)(2)(B). A conviction for an aggravated felony meets this standard. 8 U.S.C. § 1158(b)(2)(B)(i). Aggravated felonies include the sexual abuse of a minor. 8 U.S.C. § 1101(a)(43)(A).

Consequently, if Leger’s lewd and lascivious battery conviction meets the federal definition of sexual abuse of a minor, his asylee status may be canceled, and he may be deported. In making the determination of sexual abuse of a minor, courts rely on the “categorical approach,” asking “whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.” Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017). But courts do not consider the noncitizen’s actual conduct underlying the state court offense, Pereida v. Wilkinson, 592 U.S. 224 (2021), and instead “presume that the state conviction rested upon … the least of the acts criminalized by the statute, and then we determine whether that conduct would fall within the federal definition of the crime.” Esquivel-Quintana.

Under Florida law in effect in 2008, a person was guilty of lewd and lascivious battery if he (1) engaged “in sexual activity with a person 12 years of age or older but less than 16 years of age” or (2) encouraged, forced, or enticed “any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity.” § 800.04(4)(a) (2008). The victim’s consent or the ignorance of or bona-fide belief in the victim’s age are defenses to the charge. § 800.04(2)-(3). Based on an exhaustive review of Florida case law interpreting and applying this statute, the Court concluded that § 800.04(4) is “a statutory rape statute in which the least prohibited conduct is consensual sexual activity between adolescents 12 to 15 years of age, with no minimum age for the perpetrator and no age differential between the participants.”

The INA does not define the term “sexual abuse of a minor,” so the Court looked to other areas of federal law for guidance. Both the BIA and the Eleventh Circuit has previously relied on 18 U.S.C. § 3509(a)(8)—a statute dealing with the rights of child victims—to hold that sexual abuse of a minor does not require physical contact between the victim and the perpetrator. See In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999) (en banc); United States v. Padilla-Reyes, 247 F.3d 1158 (11th Cir. 2001); Chuang v. U.S. Attorney General, 382 F.3d 1299 (11th Cir. 2004). In Padilla-Reyes and Chuang, the Eleventh Circuit held that convictions for lewd and lascivious battery under the 1987 and 1996 versions of § 800.04 were crimes involving sexual abuse of a minor, but they were not helpful in resolving Leger’s appeal because “[n]either case addressed the different question presented here—whether the generic federal offense of the sexual abuse of a minor requires any age differential between the perpetrator and the victim,” the Court noted.

The Ninth Circuit has addressed this specific issue in a unanimous en banc opinion, holding that “when Congress added ‘sexual abuse of a minor’ to the list of aggravated felonies in the INA it meant ‘sexual abuse of a minor’ as defined in the federal criminal code [i.e., 18 U.S.C. § 2243].” Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). The Court found this decision highly persuasive because it is consistent with the Supreme Court’s analytical approach in Esquivel-Quintana, where that court also relied on the federal criminal code to define sexual abuse of a minor under the INA. The Court explicitly rejected contrary decisions from the BIA in Rodriguez-Rodriguez and the Seventh Circuit in Velasco-Giron v. Holder, 773 F.3d 774 (7th Cir. 2014), because they predated Esquivel-Quintana and are inconsistent with its holding.

 “Following the analytical path used by the Supreme Court in Esquivel-Quintana,” the Court partially adopted the Ninth Circuit decision in Estrada-Espinoza and held that “the generic federal offense of sexual abuse of a minor requires some age differential between the perpetrator and the victim. But we do not go as far as the Ninth Circuit in declaring that the age differential must be at least four years. Instead, we hold only that the age differential must be at least one year, and leave for another day whether the required age differential is any more than that.”

In light of the foregoing and based on a detailed statutory analysis far beyond what can reasonably be capsulized here, the Court concluded that Leger’s conviction for lewd and lascivious battery under the 2008 version of § 800.04(4) is not comparable to the generic federal crime of sexual abuse of a minor since the state statute “is broader than the generic federal definition because it does not have any age differential.” Thus, the Court held that the BIA and immigration judge erred in concluding the Leger was inadmissible and removable because he had committed an aggravated felony as defined by the INA.

The final issue was whether the BIA and immigration judge erred in denying Leger’s motion to terminate the removal proceeding based on the Government’s failure to include the date and time of the removal hearing in its notice to appear. The Supreme Court has twice held that under 8 U.S.C. § 1229(a) a notice to appear must include the location, date, and time of a removal hearing. If it does not, the hearing notice is deficient and cannot be cured by subsequent amendments providing the missing information. Niz-Chavez v. Garland, 593 U.S. 155 (2021); Pereira v. Sessions, 585 U.S. 198 (2018).

The Court stated that § 1229(a) “sets forth only a claim-processing rule” and a defective notice to appear does not deprive an immigration judge of jurisdiction. Perez-Sanchez v. U.S. Attorney General, 935 F.3d 1148 (11th Cir. 2019). Such rules “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011). Although not jurisdictional, a claim processing rule is nonetheless “mandatory in the sense that a court must enforce the rule if a party properly raises it.” Fort Bend Cty. v. Davis, 587 U.S. 541 (2019). These principles apply during immigration proceedings as in any other type of case in federal court. See Kemokai v. U.S. Attorney General, 83 F.4th 886 (11th Cir. 2023).

Both the BIA and immigration judge denied Leger’s motion to terminate by ruling that the deficient notice to appear did not deprive the immigration court of jurisdiction. But Leger never argued that the court lacked jurisdiction. Instead, he asked the immigration judge to enforce the claim-processing rule set out in § 1229(a) by terminating the removal proceeding. Because the BIA misconstrued the legal basis of Leger’s argument, the Court remanded this issue for reconsideration.

Although the Court decided not to address the merits of Leger’s claim-processing argument in the first instance, it did offer its “thoughts” on the issue to “aid the BIA on remand.” First, a noncitizen who raises a timely objection to a defective notice to appear is entitled to relief without showing prejudice. De la Rosa v. Garland, 2 F.4th 685 (7th Cir. 2021); In re Fernandes, 28 I. & N. Dec. 605 (BIA 2022). Second, a noncitizen’s motion to terminate is timely only if made “prior to the close of pleadings,” and the immigration judge may allow the Government to cure a defect notice in response to a timely motion. Fernandes. However, the correct remedy for situations like Leger’s where the noncitizen made a timely motion that was erroneously denied are unclear, so the Court remanded the case “to the BIA for it to resolve the matter in the first instance.”

Conclusion

Accordingly, the Court granted Leger’s petition for review, vacated the BIA’s decision, and remanded for further proceedings consistent with its opinion. See: Leger v. U.S. Attorney General, 101 F.4th 1295 (11th Cir. 2024).  

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