Lauture v. U.S. Attorney Gen.

• Decision Date: 17 March 2022
• Docket Number: No. 19-13165,19-13165
• Parties: Emmanuel LAUTURE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

28 F.4th 1169

Emmanuel LAUTURE, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 19-13165

United States Court of Appeals, Eleventh Circuit.

Filed: March 17, 2022

Ryan Lee Hedstrom, Gunn Law Group, PA, Tampa, FL, John Schifino, Burr & Forman, LLP, Tampa, FL, for Petitioner.

Virginia Lee Gordon, U.S. Department of Justice, Appellate Section, Office of Immigration Litigation, Washington, DC, Nicole Guzman, DHS, Office of Chief Counsel, Orlando, FL, for Respondent.

Before Jordan, Jill Pryor, and Tjoflat, Circuit Judges.

Jordan, Circuit Judge:

The Board of Immigration Appeals, affirming the decision of an immigration judge, ruled that Emmanuel Lauture was removeable from the United States because his Florida conviction for burglary of an unoccupied dwelling, see Fla. Stat. § 810.02(3)(b), constituted a "crime involving moral turpitude" (a CIMT). Mr. Lauture now petitions for review of the BIA's decision.

Following oral argument and a review of the record, we grant Mr. Lauture's petition, vacate the BIA's judgment, and remand for further proceedings. Florida has applied § 810.02(3)(b) to a dwelling which was not occupied prior to or after the entry, see State v. Bennett , 565 So. 2d 803, 805 (Fla. 2d DCA 1990), and that application impacts whether a violation of § 810.02(3)(b) is a CIMT. See Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (the question is whether there is "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition" of a "listed crime in a federal statute"). Neither the IJ nor the BIA, however, addressed Mr. Lauture's argument about the impact of Bennett . The BIA must do so on remand.

I

Mr. Lauture was paroled into the United States in 2005 and became a lawful permanent resident in 2007. On July 13, 2010, he pled guilty to burglary of an unoccupied dwelling in violation of Fla. Stat. § 810.02(3)(b). He was originally sentenced to probation but later violated the terms of his probation and received a sentence of 40 months’ imprisonment.

In 2018, the Department of Homeland Security served Mr. Lauture with a notice to appear, charging him with being subject to removal from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(i), for having been convicted of a CIMT within five years of his admission. DHS initiated removal proceedings against Mr. Lauture, and he responded by filing a motion to terminate. He argued that his conviction for burglary of an unoccupied dwelling was not a CIMT. In part, he cited Bennett , 565 So. 2d 803, for the proposition that a defendant "may be convicted of burglary to a dwelling for entering an unsold and unoccupied mobile home sitting on a sales lot." A.R. at 159. The DHS opposed the motion to terminate.

The IJ denied Mr. Lauture's motion to terminate and ordered Mr. Lauture removed. She concluded that Florida's burglary statute was divisible and that a conviction for burglary of an unoccupied dwelling involved moral turpitude. She focused on the particular dangers inherent in residential burglaries given the risk of a face-to-face encounter between an occupant and a burglar, and found that this risk remains even if a dwelling is unoccupied at the time due to the likelihood of confrontation between the burglar and a police officer or investigating bystander. In her discussion of Florida law, the IJ did not discuss or analyze Bennett , which Mr. Lauture had cited.

In his brief to the BIA, Mr. Lauture argued in part that the Florida burglary statute "extends beyond the contemporary definition of burglary in that it includes conveyances." Id. at 30. In support of that argument, he again cited Bennett . See id. ("A defendant therefore may be convicted of burglary to a dwelling for entering an unsold and unoccupied mobile home sitting on a sales lot. State v. Bennett , 565 So. 2d 803 (Fla. 2d DCA 1990).").

The BIA dismissed Mr. Lauture's appeal. It concluded that burglary of an unoccupied dwelling under § 810.02(3)(b) categorially involves moral turpitude because the dwelling, even if unoccupied, must be suitable for a person to live in at night. As the BIA put it, Mr. Lauture had "not demonstrated a realistic probability that ... Florida would prosecute a case of burglary of an unoccupied dwelling, which takes place within the curtilage thereof, where the dwelling was never occupied prior to or after the burglary occurred." Id. at 5 (emphasis removed). The BIA also reasoned that, under Florida law, "unoccupied" only means that "no one was physically present at the time of the burglary"—not that the dwelling was "abandoned, disused, or shuttered." Id. at 6. Because the BIA thought that Mr. Lauture had not presented any Florida case "in which the dwelling was truly never occupied," it determined he had not shown a realistic probability of prosecution for non-turpitudinous conduct. Id. at 8 (emphasis in original). Like the IJ, the BIA did not discuss Bennett even though Mr. Lauture had cited it in his appellate brief.

II

We "review de novo the legal question of whether a[ ] conviction qualifies as a [CIMT]." Gelin v. U.S. Att'y Gen. , 837 F.3d 1236, 1240 (11th Cir. 2016). In determining whether a conviction is a CIMT, we employ the categorical approach (if the statute of conviction is not divisible and sets out alternative means of committing a single offense) or the modified categorical approach (if the statute of conviction is divisible and creates separate offenses). See Pereida v. Wilkinson , ––– U.S. ––––, 141 S. Ct. 754, 762–63, 209 L.Ed.2d 47 (2021) ; George v. U.S. Att'y Gen. , 953 F.3d 1300, 1303–04 (11th Cir. 2020). Under either approach, we do not consider the facts underlying the conviction. See, e.g., Fajardo v. U.S. Att'y Gen. , 659 F.3d 1303, 1305–11 (11th Cir. 2011). Where the statute of conviction is divisible—i.e., where it sets out different offenses—and some of the crimes set out in the statute involve moral turpitude and others do not, the person seeking relief bears the burden of "prov[ing] that his actual, historical offense of conviction" is not a CIMT. See Pereida , 141 S. Ct. at 763.

III

In this case, the IJ and the BIA concluded that Fla. Stat. § 810.02 is divisible and Mr. Lauture was convicted of violating Fla. Stat. § 810.02(3)(b). Based on our review of the statute, case law, and the record, we agree.

We start by explaining why, contrary to Mr. Lauture's arguments, § 810.02 is divisible. In a divisibility determination, our "first task [when] faced with an alternatively phrased statute is ... to determine whether its listed items are elements [and, therefore, different crimes] or means [of committing the same crime]." Mathis v. United States , 579 U.S. 500, 136 S. Ct. 2243, 2256, 195 L.Ed.2d 604 (2016). In Mathis , the Supreme Court "gave us a few rules of thumb to use to determine whether statutory alternatives are means or elements: [1] see how the state supreme court has defined the elements; [2] see if different statutory alternatives carry different penalties because different penalties means the listed items are different elements; [3] look at the statute itself to see if the statute identifies what a prosecutor must charge as elements; and [4] when all else fails, look at the record of conviction solely to see whether the listed items are elements." Zarate v. U.S. Att'y Gen. , 26 F.4th 1196, 1212 (11th Cir. Feb. 18, 2022) (Tjoflat, J., concurring) (citing Mathis , 136 S. Ct. at 2256 ).

Here, § 810.02 is divisible under Mathis ’ second rationale. That is because the different subsections of the statute carry different penalties.

Florida law defines burglary as "[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein." § 810.02(1)(b)(1). As the Florida Supreme Court has explained, the burglary statute requires proof only that the defendant entered a place without authorization and with the intent to commit any other offense. See Toole v. State , 472 So. 2d 1174, 1175 (Fla. 1985) ("[B]eyond allegation and proof of unauthorized entry ... the essential element to be alleged and proven on a charge of burglary is the intent to commit an offense, not the intent to commit a specified offense, therein.").

As a whole, Fla. Stat. § 810.02 sets out several distinct burglary offenses with different penalties. For example, subsection (2) of § 810.02 makes certain burglaries first-degree felonies, while subsection (3) makes some burglaries second-degree felonies, and subsection (4) makes other burglaries third-degree felonies. That these different subsections carry different penalties shows that the statute is divisible into first-, second-, and third-degree felony offenses. Accordingly, we can narrow the scope of our inquiry to § 810.02(3).

But even subsection (3) is "alternatively phrased." Mathis , 136 S. Ct. at 2256. This subsection of the statute provides that a person is guilty of a second-degree felony if

in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:

(a) Dwelling, and there is another person in the dwelling at the time the offender enters or remains;

(b) Dwelling, and there is not another person in the dwelling at the time the offender enters or remains;

(c) Structure, and there is another person in the structure at the time the offender enters or remains;

(d) Conveyance, and there is another person in the conveyance at the time the offender enters or remains;

(e) Authorized emergency vehicle, as defined in s. 316.003; or

(f) Structure or conveyance when the offense intended to be committed therein is theft of a controlled substance as defined in s. 893.02....

Fla. Stat. § 812.02(3) (emphasis added). For purposes of the burglary statute, a "dwelling" is defined as

a building or conveyance of any kind, including any attached porch,

...