Lukaj v. U.S. Attorney Gen., No. 19-13073

• Decision Date: 30 March 2020
• Docket Number: No. 19-13073
• Parties: Alban LUKAJ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

953 F.3d 1305

Alban LUKAJ, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 19-13073

United States Court of Appeals, Eleventh Circuit.

Filed March 30, 2020

David F. Vedder, David F. Vedder, PA, DAYTONA BEACH, FL, for Petitioner.

Jessica Dawgert, M. Jocelyn Lopez Wright, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, WASHINGTON, DC, Michelle Ressler, District Counsel's Office, USICE, MIAMI, FL, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals, Agency No. AXXX-XX9-510

Before WILLIAM PRYOR, LAGOA and HULL, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

Alban Lukaj, a native and citizen of Albania, petitions this Court a second time to review the final order of removal of the Board of Immigration Appeals. We granted in part Lukaj's first petition, which challenged the classification of his prior conviction for aggravated battery with a firearm, Fla. Stat. § 784.045(1)(a), as an aggravated felony, 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii), under the residual clause of the definition of a crime of violence, 18 U.S.C. § 16(b). Based on the holding in Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1210, 200 L.Ed.2d 549 (2018), that section 16(b) is void for vagueness, we granted Lukaj's petition and remanded to the Board. Lukaj v. U.S. Att'y Gen. , 763 F. App'x 826, 829–30 (11th Cir. 2019). On remand, the Board classified Lukaj's prior conviction as an aggravated felony under the elements clause of the definition of a crime of violence, 18 U.S.C. § 16(a).

We deny in part and dismiss in part Lukaj's second petition. Lukaj argues in part that the Florida statute defining aggravated battery is indivisible and that the offense does not constitute a crime of violence, but his arguments are foreclosed by United States v. Vereen , 920 F.3d 1300, 1313–14 (11th Cir. 2019), cert. denied , ––– U.S. ––––, 140 S.Ct. 1273, 206 L.Ed.2d 259, No. 19-6405, 2020 WL 981863 (U.S. Mar. 2, 2020), and Turner v. Warden Coleman FCI (Medium) , 709 F.3d 1328, 1341 (11th Cir. 2013), abrogated on other grounds as recognized by United States v. Hill , 799 F.3d 1318, 1321 n.1 (11th Cir. 2015). Lukaj also argues that the Board should review his application for deferral of removal, but we lack jurisdiction over this argument because Lukaj failed to challenge the denial of his application in his appeal to the Board. See 8 U.S.C. § 1252(d)(1) ; Amaya-Artunduaga v. U.S. Att'y Gen. , 463 F.3d 1247, 1251 (11th Cir. 2006).

I. BACKGROUND

Lukaj was admitted to the United States as a refugee and later became a lawful permanent resident. In 2015, the Department of Homeland Security charged Lukaj as removable based on his convictions for violating or conspiring to violate a law relating to a controlled substance, 8 U.S.C. § 1227(a)(2)(B)(i) ; for an aggravated felony involving illicit trafficking in a controlled substance, id. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(B) ; for an aggravated felony involving a crime of violence, id. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(F), and for violating a law regarding the use, ownership, possession, or carrying of a firearm, id. § 1227(a)(2)(C). The notice to appear stated that Lukaj had been convicted in Florida courts in 2009 for conspiring to traffic and for trafficking in methylenedioxymethamphetamine, Fla. Stat. § 893.135(1)(k)(2)(c), (5) and in 2010 for aggravated battery with a firearm, id. §§ 784.045(1)(a).

Records submitted by the Department established that Lukaj pleaded guilty to aggravated battery. A Florida grand jury returned a six-count indictment against Lukaj that charged, in Count I, that he "with a premeditated design to effect the death of Ryan M. Lemien ... did attempt to unlawfully kill [him] by shooting at him, and during the commission of the ... Attempted Murder in the First Degree, ... LUKAJ did carry, display, use, threaten to use, or attempt to use a firearm and did actually possess and discharge a firearm." (R. 1276) Lukaj agreed to plead guilty to aggravated battery while actually possessing a firearm under sections "784.045(1)(a) and 775.087(2)(a)1" of the Florida Statutes as a "lesser-included offense of Count I, ... [and to serve] a 10 year minimum mandatory" and, in exchange, "[t]he state ... N[ol] P[rossed] all remaining counts" against him. (R. 1285)

Lukaj admitted the fact of his prior convictions, and an immigration judge found those convictions constituted grounds for removal. The immigration judge also advised Lukaj that his conviction for aggravated battery constituted an aggravated felony that made him ineligible for asylum, cancellation of removal, and withholding of removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i), 1229b(b)(1)(C), 1231(b)(3)(B)(ii). Later, Lukaj applied for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 8 C.F.R. § 1208.17, and objected to the classification of his conviction for aggravated battery as an aggravated felony. The immigration judge scheduled a hearing on Lukaj's application for deferral of removal.

During Lukaj's removal hearing, the immigration judge overruled his objection to classifying his conviction for aggravated battery as an aggravated felony and then requested argument on his application for deferral of removal. Lukaj's attorney was unprepared to address deferral and moved for a continuance, but the immigration judge denied the motion and took a 15-minute recess.

When the hearing resumed, Lukaj's attorney stated, "We're not going to go forward on the deferral" and "[w]e're going to take an appeal," and then she moved, unsuccessfully, for the immigration judge to recuse. Lukaj's attorney also stated that she was "not going to withdraw [the application for deferral of removal] per se," and she refused to "proceed until we take an appeal to the BIA, on the denial of the motion for a continuance and the denial of the recusal."

The immigration judge denied Lukaj's application for deferral of removal "for failure to meet his burden of proof." Before adjourning the hearing, the immigration judge asked, to "make it clear for the record, ... [whether Lukaj was] pursuing the deferral of removal application," and his attorney responded, "Not now."

The immigration judge denied Lukaj's applications for immigration relief and ordered him removed him to Albania. The immigration judge classified Lukaj's prior convictions for conspiring to traffic and for trafficking in methylenedioxymethamphetamine, Fla. Stat. § 893.135(1)(k)(2)(c), (5), as aggravated felonies. 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii). The immigration judge also classified Lukaj's prior conviction for aggravated battery as an aggravated felony, id. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii), under the residual clause of the definition of a crime of violence, 18 U.S.C. § 16(b), but not under its elements clause, id. § 16(a). The immigration judge determined that Lukaj's three aggravated felonies made him ineligible for cancellation of removal, see 8 U.S.C. § 1229b(a)(3), and were particularly serious crimes that barred him from obtaining asylum, see id. § 1158(b)(2)(A)(ii), (b)(2)(B)(i). Because, "for purposes of removal, an aggravated felony which incurs an aggregate term of imprisonment of at least five years is a per se " particularly serious crime, the immigration judge also determined that Lukaj's ten-year sentence for aggravated battery made him ineligible for withholding of removal. See 8 C.F.R. § 1208.16(d)(2). And the immigration judge denied Lukaj's application for deferral of removal for failure to prove he suffered past torture that "evinc[ed] a likelihood of future torture" and "to show that public officials would inflict or acquiesce to torture at his expense." See id. § 1208.18(a)(7).

Lukaj appealed to the Board, and the Department moved for summary affirmance. The Board dismissed Lukaj's appeal. It "conclude[d] that [Lukaj's] 2010 Florida conviction for aggravated battery [was] an aggravated felony that render[ed] him ineligible for asylum, cancellation of removal, and withholding of removal" because the conviction "qualifie[d] categorically as a crime of violence under 18 U.S.C. § 16(b) ...." The Board "express[ed] no present opinion as to whether [Lukaj's] 2009 conviction[s] [were] also for an aggravated felony ...." The Board also declined to review the denial of Lukaj's application for deferral of removal because his "appeal [did] not challenge that aspect of the Immigration Judge's decision ...."

Lukaj petitioned for review and we stayed briefing until the Supreme Court decided Dimaya . Lukaj , 763 F. App'x at 827. After " Dimaya declared void for vagueness the statutory provision used to classify Lukaj's conviction as an aggravated felony, we grant[ed] the part of his petition that challenge[d] the denial of his applications for asylum, withholding of removal, and cancellation of removal." Id. at 829. We remanded for the Board to decide how to classify Lukaj's conviction for aggravated battery and to determine whether he was eligible for relief from removal. Id. at 830.

On remand, Lukaj moved the Board to remand to the immigration judge, but the Board denied the motion and dismissed his appeal. The Board determined that "it would be inappropriate ... to remand the matter for further removal hearings because [Lukaj's] eligibility for relief from removal turn[ed] entirely on a question of law that [it] review[ed] de novo—i.e., whether he has sustained a disqualifying ‘aggravated felony’ conviction." The Board "expressly reaffirm[ed] that [Lukaj] [was] removable from the United States" and "conclud[ed] that [his prior conviction for] aggravated battery under section 784.045(1) of the Florida Statutes (even considered without the section 775.087(2) firearm enhancement) qualifie[d] categorically as a crime of violence under 18 U.S.C. § 16(a)." That conclusion, the Board stated, was dictated by our holdings in Veree...