Aspilaire v. U.S. Attorney Gen., 19-12605
| Decision Date | 06 April 2021 |
| Docket Number | No. 19-12605,19-12605 |
| Parties | Rubens ASPILAIRE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Michael S. Vastine, St. Thomas University School of Law, MIAMI GARDENS, FL, Sui Chung, Immigration Law & Litigation Group, MIAMI, FL, for Petitioner.
Timothy G. Hayes, Sunah Lee, U.S. Department of Justice, Office of Immigration Litigation, WASHINGTON, DC, Michelle M. Ressler, District Counsel's Office, USICE, MIAMI, FL, for Respondent.
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and SELF,* District Judge.
This petition for review requires us to decide whether a Florida conviction for being a felon in possession of a firearm, Fla. Stat. § 790.23(1)(a), is categorically an aggravated felony under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(ii). The Board of Immigration Appeals ordered Rubens Aspilaire removed based on his Florida felon-in-possession conviction. Aspilaire argues that his offense is not categorically an aggravated felony because Florida law defines as "firearms" some weapons that would not be considered firearms for purposes of federal law. Florida's antique-firearm exception to its definition of a firearm, Fla. Stat. § 790.001(6), does not apply when an antique firearm is used in the commission of an offense, unlike the federal exception. And Florida's antique-firearm exception does not include all black-powder muzzleloaders, unlike the federal exception. But Aspilaire does not point to his own case or any other prosecution to establish that Florida prosecutes felons for possessing firearms that fall within the federal antique-firearm exception, and Florida's definition of a firearm is not broader than the federal definition on its face. So we deny his petition for review.
Rubens Aspilaire is a native and citizen of Haiti. He entered the United States in 2006 and became a lawful permanent resident in 2007. In 2012, Aspilaire was convicted in Florida of possession of marijuana and carrying a concealed firearm. He was sentenced to eight months in the county jail and two years of probation.
After Aspilaire was arrested again in 2014 for violating his probation by possessing a firearm, the Department of Homeland Security initiated removal proceedings. Aspilaire explored options to avoid removal by adjusting his immigration status. He was eventually released from custody in the spring of 2015, and the removal proceedings against him were administratively closed.
But Aspilaire was arrested again in 2015 and charged by the State of Florida with driving a motor vehicle without a valid license, resisting arrest, possessing 20 grams or less of marijuana, trafficking 28 grams or more of cocaine, being a felon in possession of a firearm or ammunition or a concealed weapon, and possessing heroin. The probable cause affidavit prepared in connection with the arrest specified that Aspilaire possessed a "Springfield Armory ... 9mm" "semi-automatic handgun." After a jury trial, he was convicted of "possession of [a] weapon or ammo" by a felon and sentenced to 12 years of imprisonment.
Following Aspilaire's felon-in-possession conviction, the government moved to re-calendar the closed removal proceeding. It amended the charges against Aspilaire to reflect the 2016 felon-in-possession conviction, which it charged was an aggravated felony under the Immigration and Nationality Act. Aspilaire moved to terminate the removal proceedings. He argued that his Florida felon-in-possession conviction could not trigger deportability for two reasons: because the Florida statute, unlike the federal statute, "[r]elates to ammunition and other non-firearm weapons," namely "[e]lectric [w]eapons," and because Florida's definition of a firearm "[i]ncorporates antique firearms specifically excluded from the federal firearm definition." The immigration judge denied the motion to terminate the removal proceedings and later ordered Aspilaire removed to Haiti.
Aspilaire appealed the removal order to the Board of Immigration Appeals. The Board dismissed the appeal based solely on Aspilaire's 2016 felon-in-possession conviction. It rejected Aspilaire's "electric weapon" argument by " ‘peek[ing]’ at [his] conviction record" to determine "that [the statute of conviction was] a divisible statute with respect to the types of weapons it covers." So it applied the modified categorical approach to look at the jury verdict and determined that Aspilaire was convicted "of possessing a ‘firearm or ammunition’ to the exclusion of all other weapons," consistent with the generic federal offense.
The Board then turned to Aspilaire's antique-firearm arguments. Aspilaire argued that Florida's definition of a firearm was overbroad because its antique-firearm definition did not include black-powder muzzleloaders like the federal definition, and because it excluded weapons used in the commission of an offense, unlike the federal definition. Citing Supreme Court dicta from Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), the Board explained that Aspilaire could carry his burden only by pointing to exemplar prosecutions by Florida of antique weapons. Because he failed to do so, it rejected his arguments.
Aspilaire petitioned for review, but the government moved to dismiss the petition and remand for the Board to reconsider whether Moncrieffe requires an alien to point to exemplar prosecutions involving antique firearms. We vacated the removal order and remanded for further proceedings. On remand, the parties did not pursue the Moncrieffe question, and the Board issued a new order dismissing the appeal for the same reasons it dismissed the first appeal.
Aspilaire again petitioned for review. He maintains that "[t]he sole issue presented in the instant petition" "is whether removal consequences may be triggered where ... the Florida ‘antique firearms’ exception is more narrow than the federal exception" and where "the Florida offense permits conviction of a ‘firearms offense’ where an otherwise excepted ‘antique firearm’ is used in the commission of an offense." Neither party discusses the divisibility of Florida's felon-in-possession statute with respect to "electric weapons."
We review only the decision of the Board of Immigration Appeals, except to the extent that the Board adopts the opinion of the immigration judge. Kazemzadeh v. U.S. Att'y Gen. , 577 F.3d 1341, 1350 (11th Cir. 2009). We review de novo whether a crime is an aggravated felony for purposes of the Immigration and Nationality Act. Cintron v. U.S. Att'y Gen. , 882 F.3d 1380, 1383 (11th Cir. 2018).
We divide our discussion in three parts. First, we explain the categorical approach and examine the relevant statutes. Then, we discuss Aspilaire's exemplar-prosecutions argument and conclude that none of the decisions he cites establishes that Florida prosecutes felons for possessing firearms that would be considered antique firearms under the federal definition. Finally, we discuss Aspilaire's statutory-language arguments and explain that Florida's felon-in-possession statute is not broader than the federal statute on its face.
Under the Immigration and Nationality Act, "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). The Act defines an "aggravated felony" to include the federal felon-in-possession statute. Id. § 1101(a)(43)(E)(ii); 18 U.S.C. § 922(g)(1). And the Act makes clear that "[t]he term [aggravated felony] applies to an offense ... whether in violation of Federal or State law." 8 U.S.C. § 1101(a)(43).
To determine whether a state-law conviction constitutes an aggravated felony under the Act, we apply either the categorical or modified categorical approach, depending on whether the state statute is divisible. Donawa v. U.S. Att'y Gen. , 735 F.3d 1275, 1280 (11th Cir. 2013). When a state statute is not divisible, we apply the categorical approach and "confine [our] consideration only to the fact of conviction and the statutory definition of the offense." Id. "A state offense is an aggravated felony for [Immigration and Nationality Act] purposes only if it necessarily involves facts equating the generic federal offense." Id. When a state statute is divisible, we apply the modified categorical approach, under which we "expand our inquiry beyond the fact of conviction and also look to the record of conviction—including documents involving the charge, plea agreement, or sentence." Id. (internal quotation marks omitted).
The parties agree that the categorical approach applies to the question presented in this petition for review. And in any event, the record does not include any documents that we could use to sharpen our analysis of Aspilaire's antique-firearm arguments under the modified categorical approach. Additionally, Aspilaire does not argue the Board erred by concluding "that [Florida's felon-in-possession statute was] a divisible statute with respect to the types of weapons it covers" and using the modified categorical approach to reject his electric-weapons argument. We express no opinion on the divisibility of the Florida statute.
Aspilaire argues that, under the categorical approach, a Florida felon-in-possession conviction does not necessarily involve facts equating to a federal felon-in-possession conviction because Florida law defines as "firearms" some weapons that would not be considered firearms for purposes of federal law. His arguments involve the scope of both the Florida and the federal antique-firearm exceptions.
For purposes of the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), a "firearm" is defined as follows:
(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an...
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