Cristina Jaimes-Lopez v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Cristina Jaimes-Lopez. Decision: Affirmed. Petition Denied. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15532
Non-Argument Calendar
________________________
Agency No. A071-502-702
CRISTINA JAIMES-LOPEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 10, 2017)
Before MARCUS, ROSENBAUM, and FAY, Circuit Judges.
PER CURIAM:

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Cristina Jaimes-Lopez seeks review of the decision of the Board of
Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) order of
removal rendered on the ground that she was removable from the United States for
having been “convicted of a crime involving moral turpitude,” 8 U.S.C.
§ 1227(a)(2)(A)(ii), due to her conviction for armed robbery under Fla. Stat.
§ 812.13(2)(a). On appeal, Jaimes-Lopez argues that the BIA failed to properly
apply the “categorical approach” when determining that her conviction qualified as
a crime involving moral turpitude. After careful review, we deny the petition.
I.
We review de novo the legal question of whether a conviction qualifies as a
crime involving moral turpitude. Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1240
(11th Cir. 2016). We review only the decision of the BIA, except to the extent that
the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001).
Jaimes-Lopez is removable if she committed a “crime involving moral
turpitude.” See 8 U.S.C. § 1227(a)(2)(A)(i). 1 The term “moral turpitude” is not

1

In full, 8 U.S.C. § 1227(a)(2)(A)(i) provides,

Any alien who—
(I) is convicted of a crime involving moral turpitude committed within five
years (or 10 years in the case of an alien provided lawful permanent resident
status under section 1255(j) of this title) after the date of admission, and
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defined by the statute, but we have “defined a crime of moral turpitude as an act of
baseness, vileness, or depravity in the private and social duties which a man owes
to his fellow men, or to society in general, contrary to the accepted and customary
rule of right and duty between man and man.” Walker v. U.S. Atty. Gen., 783 F.3d
1226, 1229 (11th Cir. 2015) (alteration adopted) (internal quotation marks
omitted). We have held, for varying reasons, “that uttering a forged instrument,
resisting an officer with violence, criminal reckless conduct, second-degree arson,
aggravated battery, aggravated child abuse, and misprision of a felony are all
crimes involving moral turpitude.” Gelin, 837 F.3d at 1240–41.
In deciding whether a particular offense constitutes a crime involving moral
turpitude, we generally apply what has been termed the “categorical approach.” Id.
at 1241. Under this 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.” Id. “In doing so, we ask whether the least culpable conduct
necessary to sustain a conviction under the statute meets the standard of a crime
involving moral turpitude.” Id. (internal quotation marks omitted).
When a statute is “divisible”—meaning that it sets forth alternative elements
of the same crime—we may apply what has been termed the “modified categorical
(II) is convicted of a crime for which a sentence of one year or longer may be
imposed,
is deportable.
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approach.” Id. This approach allows courts to look beyond the fact of conviction
and consider a limited class of documents to determine under which alternative
version of the statutory elements a defendant was convicted. Id.; see Descamps v.
United States, 133 S. Ct. 2276, 2285 (2013).
II.
The statute at issue is the Florida robbery statute, Fla. Stat. § 812.13. Florida
defines robbery as
the taking of money or other property which may be the subject of
larceny from the person or custody of another, with intent to either
permanently or temporarily deprive the person or the owner of the
money or other property, when in the course of the taking there is the
use of force, violence, assault, or putting in fear.
Fla. Stat. § 812.13(1). In addition, there is no dispute that Jaimes-Lopez was
convicted of Fla. Stat. § 812.13(2)(a), which makes it a first-degree felony “[i]f in
the course of committing the robbery the offender carried a firearm or other deadly
weapon.” Fla. Stat. § 812.13(2)(a).
The BIA determined that Jaimes-Lopez’s robbery conviction under
§ 812.13(2)(a) qualified as a crime involving moral turpitude. Relying on longstanding BIA precedent, the BIA agreed with the IJ that “robbery is a crime of
moral turpitude.” See Matter of Martin, 18 I. & N. Dec. 226, 227 (BIA 1982)
(“[R]obbery is universally recognized as a crime involving moral turpitude.”). In
addition, the BIA explained, “the robbery statute under which the respondent was
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convicted involves the additional aggravating factor of the use of a firearm or
deadly weapon.”
Jaimes-Lopez mainly argues that the BIA failed to properly apply the
categorical approach because the BIA failed to compare the state statute to a
comparable federal statute.

In Jaimes-Lopez’s view, the categorical approach

requires two steps. At step one, the elements of the state statute must be compared
with “the analogous federal statute dealing with the crime in question.”
Appellant’s Initial Br. at 15.

If the state statute criminalizes conduct the

comparable federal statute does not, a conviction under the statute is not
categorically a crime involving moral turpitude. The underlying reason for that
rule, Jaimes-Lopez states, is that immigration is a federal matter, so all persons
“need to be held to the same federal standard.” Id. at 38. If the elements of the
state statute match the federal counterpart, “step two involves looking at the
inherent nature of the elements to determine whether the act was one of baseness,
vileness, depravity or against the societal norms and duties between men,” JaimesLopez asserts. Id. at 15. According to Jaimes-Lopez, her robbery conviction is not
a crime involving moral turpitude because the Florida robbery statute is broader
than the corresponding federal robbery statute, 18 U.S.C. § 1951.
A.

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Here, the BIA did not err in applying the categorical approach to determine
that Jaimes-Lopez’s armed robbery conviction under Fla. Stat. § 812.13(2)(a)
qualified as a crime involving moral turpitude. Jaimes-Lopez’s “step one” is not
part of the analysis we use to determine crimes of moral turpitude. That is, we do
not compare the elements of the state statute with the elements of a comparable
federal offense, as the BIA correctly recognized. See BIA Decision at 3 (noting
that it “was not obligated to compare the state statute with a comparable federal
statute to determine whether her conviction involves moral turpitude”).
Rather, as mentioned previously, when applying the categorical approach we
look to the statutory definition of the offense to determine whether it meets the
federal standard of a crime involving moral turpitude. Gelin, 837 F.3d at 1241.
Our precedent is consistent on this point. See Cano v. U.S. Att’y Gen., 709 F.3d
1052, 1053 (11th Cir. 2013); Keungne v. United States Att’y Gen., 561 F.3d 1281,
1284 n.3 (11th Cir. 2009); Vuksanovic v. U.S. Att’y Gen., 439 F.3d 1308, 1311
(2006); Sosa-Martinez v. U.S. Att’y Gen., 420 F.3d 1338, 1341–42 (11th Cir.
2005); Garcia v. Att’y Gen. of U.S., 329 F.3d 1217, 1222 (11th Cir. 2003); Itani v.
Ashcroft, 298 F.3d 1213, 1215–16 (11th Cir. 2002) (“Whether a crime involves the
depravity or fraud necessary to be one of moral turpitude depends upon the
inherent nature of the offense, as defined in the relevant statute . . . .”). Likewise,

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Jaimes-Lopez has identified no precedent from the Supreme Court applying her
proposed analysis to crimes of moral turpitude.
To be sure, in some immigration matters we do compare the elements of the
state crime with the elements of a corresponding federal crime. For example, to
determine whether a conviction qualifies an “aggravated felony” under the
categorical approach, we generally look to “whether the state statute defining the
crime of conviction categorically fits within the generic federal definition of a
corresponding aggravated felony.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1684
(2013) (internal quotation marks omitted); see also Donawa v. United States, 735
F.3d 1275, 1280 (11th Cir. 2013). The question in Moncrieffe was whether a state
drug conviction qualified as the aggravated felony of “illicit trafficking in a
controlled substance,” which the Court previously had held “encompasses all state
offenses that ‘proscrib[e] conduct punishable as a felony under the [the federal
Controlled Substances Act].’” Moncrieffe, 133 S. Ct. at 1685 (quoting Lopez v.
Gonzalez, 549 U.S. 47, 60 (2006)). Thus, the resolution of that question depended
on a comparison between the state definition of the crime and the “generically
defined federal crime.” Id. at 1685–86.
Even within the realm of aggravated felonies, however, there is not always a
federal crime to serve as a point of comparison. For example, in Ramos v. United
States Attorney General, 709 F.3d 1066, 1069 (11th Cir. 2013), we addressed
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whether a state conviction constituted a “theft offense” as that term is defined in
the aggravated felony statute. We explained that “when Congress has listed a
specific crime, it means to refer to that crime in the generic sense in which the term
is now used in the criminal codes of most States.” Id. (internal quotation marks
omitted). So, “the term ‘theft offense,’ as § 1101(a)(43)(G) uses it, denotes the
generic definition of theft.” Id. (internal quotation marks omitted). Therefore, the
analysis in Ramos depended on a comparison between the state offense and the
generic definition of theft implicitly adopted by Congress. See id. at 1169–71.
What these examples from Moncrieffe and Ramos show is that there is not
some uniform requirement that a state offense must be compared with a federal
offense for all immigration matters, as Jaimes-Lopez contends, but that the
appropriate analysis depends on the specific statutory language at issue. Here, the
relevant statutory language is “crime involving moral turpitude,” not “robbery.”
Thus, the relevant point of comparison is the standard of “moral turpitude”—which
is a uniform standard2—and not some generic definition of robbery.

So, in

applying the categorical approach in this context, we consider “only the fact of
conviction and the statutory definition of the offense” and ask “whether the least

2

The Supreme Court has indicated that courts should “look to the manner in which the
term ‘moral turpitude’ has been applied by judicial decision.” Jordan v. De George, 341 U.S.
223, 227 (1951).
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culpable conduct necessary to sustain a conviction under the statute meets the
standard of a crime involving moral turpitude.” Gelin, 837 F.3d at 1241.
For these reasons, we reject Jaimes-Lopez’s argument that her robbery
conviction under Fla. Stat. § 812.13(2)(a) did not qualify as a crime of moral
turpitude because it did not match the elements of the federal definition of robbery.
We also see no indication that the BIA improperly relied on the underlying facts of
Jaimes-Lopez’s conduct in its decision. Thus, the BIA did not err in its analysis.
B.
We also agree with the BIA’s ultimate determination that Jaimes-Lopez’s
conviction under § 812.13(2)(a) categorically qualifies as a crime involving moral
turpitude. For this reason, we need not, and do not, decide whether the Florida
statute is divisible or indivisible. See Gelin, 837 F.3d at 1243.
The federal circuit courts have long considered theft offenses, including
robbery, to involve moral turpitude. See Mendoza v. Holder, 623 F.3d 1299,
1303–04 & nn. 8, 9 (9th Cir. 2010) (holding that robbery under California law
categorically qualified as a crime involving moral turpitude, and noting “precedent
in this and other circuits that theft crimes are [crimes involving moral turpitude]”);
Soetarto v. INS, 516 F.2d 778, 780 (7th Cir. 1975) (“Theft has always been held to
involve moral turpitude, regardless of the sentence imposed or the amount
stolen.”); McKenzie v. Savoretti, 200 F.2d 546, 548 (5th Cir. 1952) (stating that
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“crimes of forgery, larceny, uttering, and stealing . . . are regarded as involving
moral turpitude”); Cerami v. Uhl, 78 F.2d 698, 698 (2d Cir. 1935) (concluding that
a robbery conviction involved moral turpitude). So, too, has the BIA. See Matter
of Martin, 18 I. & N. Dec. at 227 (“It is clear . . . that robbery is universally
recognized as a crime involving moral turpitude.”); Matter of De La Nues, 18 I. &
N. Dec. 140, 145 (BIA 1981) (“Burglary and theft or larceny, whether grand or
petty, are crimes involving moral turpitude.”).
Jaimes-Lopez does not dispute the general proposition that robbery, in some
generic sense, is a crime involving moral turpitude. And while she attempts to
highlight differences between the state definition of robbery and the federal
definition of robbery, we have held in another context that the Florida definition of
robbery in § 812.13(1) is a “clear equivalent[]” of the “generic form of robbery.”
United States v. Lockley, 632 F.3d 1238, 1242 (11th Cir. 2011) (analyzing
§ 812.13(1) under the categorical approach for purposes of the Armed Career
Criminal Act). At the very least, Lockley’s holding suggests little reason for us in
this case to deviate from the general consensus that robbery and theft offenses
involve moral turpitude.
Turning to the specific elements of the statute, this Court in Lockley, after
surveying Florida Law, summarized the elements as follows:
commission of robbery in violation of Fla. Stat. § 812.13(1)
necessarily requires that the defendant (1) commit a taking of money
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or other property from another person or in the custody of another
person (2) with the intent to permanently or temporarily deprive the
person of the money or property or any benefit thereof (3) using force,
violence, or an intentional threat of imminent force or violence against
another coupled with an apparent ability to use that force or violence,
or by causing the person to fear death or great bodily harm (4) where
the money or property has value.
Id. at 1242–43; see also United States v. Seabrooks, 839 F.3d 1326, 1340–41 (11th
Cir. 2016) (summarizing our decision in Lockley). The Supreme Court of Florida
has held that “the specific intent to commit robbery is the intent to steal.” Daniels
v. State, 587 So. 2d 460, 462 (Fla. 1991); see also Estremera v. State, 89 So. 3d
291, 292–93 (Fla. Dist. Ct. App. 2012) (“[P]etit theft is a necessarily lesser
included offense of robbery.”). In addition, because we are specifically concerned
with armed robbery under § 812.13(2)(a), the state must prove that the defendant
“carried a firearm or other deadly weapon” while committing the robbery. Fla.
Stat. § 812.13(2)(a).
Thus, robbery under § 812.13(2)(a) requires proof of a taking with the
specific intent to steal, which alone suggests a disregard for the “private and social
duties which a man owes to his fellow men, or to society in general.” See Cano,
709 F.3d at 1054; see McKenzie, 200 F.2d at 548 (“[C]rimes of . . . larceny [and]. .
. stealing . . . are regarded as involving moral turpitude.”).

In addition, the

defendant must use “force, violence, assault, or putting in fear” in the course of the
taking, which further reinforces the baseness or depravity of the conduct required.
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Fla. Stat. § 812.13(1).

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As we explained in Lockley, robbery under Fla. Stat.

§ 812.13(1) is “an aggressive and potentially violent act,” id. at 1246, requiring
either the use physical force or violence, the threat of imminent force or violence
coupled with an apparent ability to use that force or violence, or “some act that
puts the victim in fear of death or great bodily harm.” Lockley, 632 F.3d at 1242;
cf. Cano, 709 F.3d at 1054 (concluding that resisting an officer with violence
constitutes a crime involving moral turpitude in part because it “involves the use or
threat of physical force”). Finally, although the statute does not require the “use”
of a firearm or deadly weapon, the fact that a firearm or deadly weapon is “carried”
during a robbery indicates its potential to be used by the defendant in furtherance
of the robbery. Cf. Sosa-Martinez, 420 F.3d at 1342 (holding that an intentional
battery that involves the use of a deadly weapon constitutes a crime of moral
turpitude).
All of these factors combined lead us to the conclusion that the least
culpable conduct necessary to sustain a conviction for armed robbery under Fla.
Stat. § 812.13(2)(a) involves moral turpitude. Accordingly, the BIA did not err in
finding Jaimes-Lopez removable for having been convicted of that offense. See 8
U.S.C. § 1227(a)(2)(A)(ii).

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PETITION DENIED. 3

3

Jaimes-Lopez also argues that her offense does not qualify as a firearms offense, see 8
U.S.C. § 1227(a)(2)(C), but the BIA did not address the IJ’s determination on that ground for
removal, so we do not address it, either.
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