Ramsey v. I.N.S., 94-5244

• Decision Date: 21 June 1995
• Docket Number: No. 94-5244,94-5244
• Citation: 55 F.3d 580
• Parties: Deryck Barrington RAMSEY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 580

55 F.3d 580

Deryck Barrington RAMSEY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-5244.

United States Court of Appeals Eleventh Circuit.

June 21, 1995.

Jeffrey A. Devore, West Palm Beach, FL, for petitioner.

Donald Couvillon, INS Dept. of Justice, Richard M. Evans, Office of Immigration Litigation, Washington, DC, for respondent.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before COX and BLACK, Circuit Judges, and FAY, Senior Circuit Judge.

PER CURIAM.

Deryck Ramsey was ordered deported from the United States under sections 241(a)(2)(A)(ii) and (iii) of the Immigration and Nationality Act (INA), 8 U.S.C. Secs. 1251(a)(2)(A)(ii), (iii), because he had been convicted after entering the United States of two separate crimes involving moral turpitude, and also because one of those crimes was an aggravated felony. Ramsey appealed the deportation order to the Board of Immigration Appeals (BIA). After conducting a de novo review, the BIA dismissed Ramsey's appeal. Ramsey now appeals from the BIA decision, contending that the BIA erred in determining his conviction for attempted lewd assault under Florida Statutes Sec. 800.04(1) was an aggravated felony, and that the BIA abused its discretion by denying Ramsey's request for a waiver of deportability under INA Sec. 212(c), 8 U.S.C. Sec. 1182(c). We affirm.

I. FACTS AND PROCEDURAL HISTORY

Deryck Ramsey is a native and citizen of Jamaica who was admitted to the United States as a lawful permanent resident in October 1976. Ramsey's mother, brother, and sister live in the United States; they are all United States citizens. In addition, Ramsey has fathered four children, all of whom live in the United States and are United States citizens.

On September 10, 1990, Ramsey was convicted of lewd assault in violation of Florida Statutes Sec. 800.04(2) for having committed a sexual battery "upon A.R., a child under the age of 16 years, by inserting his penis in A.R.'s vagina." (R.1 at 190, 194). He was sentenced to five years of supervised probation. While Ramsey was still on probation, he committed another violation. On March 8, 1993, Ramsey was charged with violating Florida Statutes Secs. 777.04(1) and 800.04(1) by "attempt[ing] to commit a Lewd Assault." The information alleged that Ramsey "attempt[ed] to rub M.W.'s vagina, but [he] failed in the perpetration or was intercepted or prevented in the execution of said offense." (R.1 at 171). Ramsey pled guilty to attempted lewd assault. The trial court accepted Ramsey's plea, revoked his probation, and sentenced him to a five year term of imprisonment to run concurrently with his original five year sentence. The court entered its judgment on May 12, 1993.

After Ramsey was convicted of the second offense, the Immigration and Naturalization Service (INS) commenced deportation proceedings against Ramsey. The INS charged that Ramsey was deportable for two reasons. First, it alleged he was deportable under INA Sec. 241(a)(2)(A)(ii), 8 U.S.C. Sec. 1251(a)(2)(A)(ii), because he had been convicted, after entry into the United States, of two separate crimes involving moral turpitude. Second, the INS charged that Ramsey was deportable under INA Sec. 241(a)(2)(A)(iii), 8 U.S.C. Sec. 1251(a)(2)(A)(iii), because he had been convicted of an aggravated felony after entering the United States. After a hearing, an immigration judge found that Ramsey was deportable as charged.

Ramsey thereafter applied for a waiver of deportability pursuant to INA Sec. 212(c), 8 U.S.C. Sec. 1182(c). After conducting an evidentiary hearing, the immigration judge denied Ramsey's Sec. 212(c) application. Ramsey appealed the decisions of the immigration judge to the BIA. Ramsey raised two major issues on appeal. ¹ Ramsey challenged his deportability as an aggravated felon pursuant to INA Sec. 241(a)(2)(A)(iii) and the immigration judge's denial of his request for a waiver of deportability pursuant to INA Sec. 212(c).

The BIA found that Ramsey's conviction for attempted lewd assault on May 12, 1993 was an aggravated felony for which Ramsey was deportable under INA Sec. 241(a)(2)(A)(iii). The BIA also denied Ramsey's application for a waiver of deportability under INA Sec. 212(c). Ramsey appeals the BIA's decision to this court.

II. ISSUES ON APPEAL AND STANDARDS OF REVIEW

Ramsey raises two issues on appeal. First, he contends that the BIA erred in finding him deportable as an aggravated felon pursuant to INA Sec. 241(a)(2)(A)(iii), arguing that attempted lewd assault is not an aggravated felony. ² Whether Ramsey's conviction for attempted lewd assault is an aggravated felony is a question of law which we review de novo. See Kaczmarczyk v. I.N.S., 933 F.2d 588, 593 (7th Cir.), cert. denied, 502 U.S. 981, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991).

Second, Ramsey contends that the BIA erred in denying Ramsey's application for relief from deportation pursuant to INA Sec. 212(c). We review the BIA's denial of Sec. 212(c) relief for abuse of discretion, Blackwood v. I.N.S., 803 F.2d 1165, 1168 (11th Cir.1986), and find Ramsey's contention that the BIA abused its discretion to be completely without merit. ³ Therefore, we limit our discussion to Ramsey's first contention.

III. DISCUSSION

Ramsey was convicted of two offenses. He was convicted of lewd assault in September 1990 and of attempted lewd assault in May 1993. It is uncontroverted that both offenses are crimes involving moral turpitude. Ramsey only challenges the finding that he committed an aggravated felony. Therefore, the sole issue meriting discussion in this case is whether the BIA erred in finding Ramsey deportable under INA Sec. 241(a)(2)(A)(iii) as an aggravated felon. Ramsey contends that his conviction for attempted lewd assault is an aggravated felony only if it constitutes a crime of violence, as defined in 18 U.S.C. Sec. 16. Ramsey argues that his violation of Fla.Stat. Sec. 800.04 is not a crime of violence. The INS contends, however, that attempted lewd assault is a crime of violence under 18 U.S.C. Sec. 16 because it is a felony involving a substantial risk that physical force may be used against the victim.

Our discussion of this issue begins with the text and relevant history of INA Sec. 241(a)(2)(A)(iii), which provides: "Any alien who is convicted of an aggravated felony at any time after entry is deportable." INA Sec. 241(a)(2)(A)(iii), 8 U.S.C. Sec. 1251(a)(2)(A)(iii). The term "aggravated felony" is defined in INA Sec. 101(a)(43), 8 U.S.C. Sec. 1101(a)(43). The section currently defines an "aggravated felony" as one of a number of offenses, including "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of imprisonment) is at least 5 years." INA Sec. 101(a)(43)(F). ⁴

As required by INA Sec. 101(a)(43)(F), we look to the definition of "crime of violence" in 18 U.S.C. Sec. 16 to determine whether attempted lewd assault is an aggravated felony. According to that section, a "crime of violence" is:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. Sec. 16. In determining whether Ramsey committed a crime of violence by violating Florida Statutes Secs. 777.04(1) and 800.04(1), we only look at the statutory definition of the crime of conviction, not the underlying facts and circumstances of Ramsey's particular offense. United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir.1993). We do so because the definition of "crime of violence" requires us to look at whether the elements of the offense include the "use, attempted use, or threatened use of physical force," or whether the offense, if a felony, involves a substantial risk of the use of physical force. See id.; United States v. Rodriguez, 979 F.2d 138, 141 (8th Cir.1992).

Ramsey violated Florida Statutes Secs. 777.04(1), and 800.04(1), by attempting a lewd assault on a child under the age of 16. Section 777.04(1) criminalizes the attempt to commit substantive offenses. Section 800.04(1) defines the underlying substantive offense that Ramsey attempted to commit. The section reads, in relevant part:

A person who:

(1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner;

....

without committing the crime of sexual battery, commits a felony of the second degree.... Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section....

Fla.Stat. Sec. 800.04. Thus, a violation of section 800.04 may be committed through a variety of acts, such as handling, fondling, or assaulting a child in a lewd, lascivious, or indecent manner. Although a violation of Sec. 800.04 might be accomplished without the use of physical force, we conclude that the offense is a felony which involves a substantial risk that physical force may be used against the victim in the course of committing the offense. Two other circuits have come to the same conclusion in analyzing similar statutes. See Reyes-Castro, 13 F.3d at 378-79; Rodriguez, 979 F.2d at 140-41. Therefore, we hold that a violation of Florida Statutes Sec. 800.04(1) is a "crime of violence" as defined in 18 U.S.C. Sec. 16.

We note that Ramsey was not convicted of the substantive offense, but rather of attempting to commit an act in violation of Sec. 800.04(1). However, if a particular substantive crime carries with it a substantial risk that physical force would be used, it follows that an attempt to commit such a crime also involves a substantial risk of physical force. Therefore, we...