CopyCited 18 times | Published | Court of Appeals for the Eleventh Circuit | 2008 WL 2080963
...statutory definition of the prior offense.” United States v. Llanos-Agostadero,
486
F.3d 1194, 1196-97 (11th Cir. 2007) (construing § 2L1.2(b)(1) enhancement).
III.
Young pled guilty to violating Florida Statute §
784.085, “Battery of a Child
by Throwing, Tossing, Projecting, or Expelling Certain Fluids or Materials,” which
is a felony punishable by up to five years in prison. Fla. Stat. §
784.085 1; Fla....
...According to the statute, it is “unlawful for any person... to
knowingly cause or attempt to cause a child to come into contact with blood,
seminal fluid, or urine or feces by throwing, tossing, projecting, or expelling such
fluid or material.” Fla. Stat. § 784.085.
1
Regarding the battery conviction, at the age of 19, Young engaged in sexual intercourse
with a 13-year-old girl.
4
According to Florida law, a battery occurs when a...
...Ashcroft,
350 F.3d 666 (7th Cir. 2003)).
V.
After reviewing the record and reading the parties’ briefs, we conclude that
the district court did not err in determining that a conviction for violating Florida
Statute §
784.085, “Battery of a Child by Throwing, Tossing, Projecting, or
Expelling Certain Fluids or Materials,” is a crime of violence for purposes of the
career offender enhancement....
...The use of physical force against another is an
element of the statute. The statute at issue, while nominally entitled a battery,
requires the violator to cause the child to come into contact with bodily fluids, by
“throwing, tossing, projecting, or expelling” the fluids. Fla. Stat. § 784.085....
CopyCited 3 times | Published | Court of Appeals for the Eleventh Circuit
...uding that Pierre was removable and
ineligible for cancellation of removal based on his felony conviction for battery of
a child by throwing, tossing, projecting, or expelling blood, seminal fluid, urine, or
feces, in violation of Florida Statute § 784.085.
After review and with the benefit of oral argument, we conclude that the
BIA did not err in concluding that (1) Pierre was removable, because his
conviction was a crime of child abuse within the meaning of 8 U.S.C.
§ 1227(a)(2...
...removal if he was convicted of a CIMT. The primary dispute in this case is
3
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whether Pierre’s conviction under Fla. Stat. § 784.085 falls within the definitions
of “crime of child abuse” and “crime involving moral turpitude.”
II....
...ited States as
an asylee from Haiti. 1 On August 15, 2005, his status was adjusted to that of legal
permanent resident. On December 18, 2009, Pierre pled guilty in Florida state
court to one count of battery of a child, in violation of Fla. Stat. § 784.085. Pierre
was sentenced to five years’ probation.
Florida Statute § 784.085 is entitled “Battery of child by throwing, tossing,
projecting, or expelling certain fluids or materials.” Fla. Stat. § 784.085....
...Under
the statute, battery of a child occurs when a person “knowingly cause[s] or
attempt[s] to cause a child to come into contact with blood, seminal fluid, or urine
or feces by throwing, tossing, projecting, or expelling such fluid or material.” Id.
§ 784.085(1).
Notably, for both the completed crime (causing actual contact) and the
attempt crime (attempting to cause contact), the statute requires that the defendant
commit the overt act of throwing, tossing, projecting or expelling the bodily fluids
or feces....
...elements mentioned in a statute . . . [and] is a crime of child abuse.”
2
Pierre was also initially charged as removable under 8 U.S.C. § 1227(a)(2)(A)(ii), as an
alien convicted of two CIMTs, based on the same battery conviction under Fla. Stat. § 784.085.
That charge was withdrawn.
5
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Pierre next appeared before an IJ on April 25, 2013....
...constitutes maltreatment of a child or that
impairs a child’s physical or mental well-being, including sexual abuse or
exploitation.” See Matter of Velazquez-Herrera, 24 I&N Dec. 503, 517 (BIA
2008).
The IJ acknowledged that Fla. Stat. § 784.085 criminalizes both attempted
battery of a child and actual battery of a child....
...application for cancellation of removal, arguing that Pierre was ineligible for that
relief. The government argued that Pierre did not meet the statutory requirement
of seven years’ continuous presence in the United States, because his conviction
under Fla. Stat. § 784.085 was a CIMT, which triggered the “stop time rule” of the
INA....
...him time to respond to the government’s motion to pretermit.
E. The BIA’s August 9, 2016 Decision
On August 9, 2016, the BIA dismissed Pierre’s appeal. The BIA first
concluded that a battery of a child conviction under Fla. Stat. § 784.085
“categorically constitutes a crime of child abuse within the meaning of [the INA].”
9
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The BIA pointed out that a...
...statute falls within the generic
definition of child abuse, as it describes an act that “impairs a child’s physical or
mental well-being.” See Velazquez-Herrera, 24 I&N Dec. at 517.
The BIA also affirmed the IJ’s determination that § 784.085 constitutes a
CIMT....
...Holder,
555 U.S. 511, 516-17,
129
S. Ct. 1159, 1163-64 (2009); Perlera-Escobar v. Exec. Office for Immigration,
894
F.2d 1292, 1296 (11th Cir. 1990).
B. Crime of Child Abuse
We first address whether a battery on a child conviction under Fla. Stat.
§
784.085 constitutes a crime of child abuse within the meaning of the INA.
The INA does not define “child abuse.” See Velazquez-Herrera, 24 I&N
Dec....
...2009)). “Under the categorical approach, we consider only the fact of
conviction and the statutory definition of the offense, rather than the specific facts
underlying the defendant’s case.” Gelin,
837 F.3d at 1241.
Under Florida Statute §
784.085, a criminal battery of a child occurs when a
person “knowingly cause[s] or attempt[s] to cause a child to come into contact with
blood, seminal fluid, or urine or feces by throwing, tossing, projecting, or expelling
such fluid or material.” Fla. Stat. §
784.085(1)....
...ld to come into contact
with these particular bodily fluids or feces, by the overt act of throwing, tossing,
projecting, or expelling the fluids or feces—constitutes a crime of child abuse.
As an initial matter, a battery conviction under § 784.085 requires an overt
act....
...As explained above, the statutory language makes clear that the
difference between the completed crime and the attempt is only that in the attempt,
the child victim does not actually come into contact with bodily fluids or feces. In
other words, a defendant violates the attempt prong of § 784.085 if, for example,
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he tosses blood or feces at a child and misses....
...that a New York conviction under N.Y.P.L.
16
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C. Crime Involving Moral Turpitude
We next determine whether § 784.085 describes a crime involving moral
turpitude within the meaning of the INA.
Like child abuse, the term “moral turpitude” is not defined in the INA....
...Similarly, if a statute “requires an intentional act targeted at vulnerable
victims,” that requirement “further demonstrates that a violation of the statute is
morally turpitudinous.” Id. at 1246.
Pierre’s battery of a child conviction under § 784.085 means that, at a
minimum, he knowingly projected blood, seminal fluid, urine, or feces at a child.
Fla. Stat. § 784.085(1); see Thomas, 531 So....
...18
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conduct . . . . measured by common understanding and practice.” Sieniarecki v.
State,
756 So. 2d 68, 74 (Fla. 2000) (quotations omitted). Thus, although
§
784.085 does not expressly tie the knowing mental state to each element of the
crime, it is apparent that a defendant cannot be convicted under §
784.085 unless
he knew that he was (1) projecting (2) bodily fluids or feces (3) at a child....
...man.” Cano,
709 F.3d at 1053. We agree with the BIA that this conviction
categorically constitutes a CIMT.
We note Pierre’s argument that the act of expelling urine on a child’s
jellyfish sting, in order to alleviate the pain, would violate the letter of §
784.085,
but would not be base or vile and thus would not be a CIMT....
...To do this, the party “must at least
point to his own case or other cases in which the state courts in fact did apply the
statute in the special (nongeneric) manner for which he argues.” Id. Pierre has
pointed to no instance in which the state of Florida has prosecuted a person under
§ 784.085 for urinating on a jellyfish sting, or indeed for any realistic conduct that
would not qualify as a crime involving moral turpitude.
4....
...1987).
Here, as part of his claim for relief from removal, Pierre had the burden to
show he was eligible for cancellation of removal. Further, the Notice to Appear
charged that Pierre was removable due to his conviction for battery of a child in
violation of Fla. Stat. § 784.085, which is the same crime that made him ineligible
for removal....
...pretermit, and thus has not established a due process violation. Frech,
491 F.3d at
1281. Whether the government had filed its motion timely or late, the IJ
necessarily would have had to consider whether Pierre’s battery on a child
conviction under §
784.085 was a CIMT in order to determine his eligibility for
cancellation of removal....
...that
the IJ would have concluded differently if Pierre had been allowed to file an
opposition. Indeed, the IJ made clear that denying the government’s motion would
mean “ignor[ing] the law.” The BIA reached the same conclusion, finding that §
784.085 describes a CIMT....
...rms of relief,
and thus was not deprived of due process. Resendiz-Alcaraz,
383 F.3d at 1272.
IV. CONCLUSION
For the reasons stated above, we conclude that a battery of a child conviction
under Florida Statute §
784.085 is categorically a crime of child abuse and a
CIMT....
