CA11 on AgFel, Controlled Substance, Defective NTA: Leger v. U.S. Atty. Gen.

Leger v. U.S. Atty. Gen.

"In this case, we must decide whether a Florida conviction for lewd and lascivious battery under the 2008 version of Fla. Stat. § 800.04(4)—an offense which the Florida Supreme Court has characterized as statutory rape—constitutes the sexual abuse of a minor, and is therefore an aggravated felony under the INA. Applying the categorical approach, and building on the Supreme Court’s analysis in Esquivel-Quintana, we hold that it is not. The least culpable conduct under § 800.04(4) is consensual sexual activity between adolescents who are 12 to 15 years old, with no minimum age required for the perpetrator. The statute therefore sweeps more broadly than the generic federal definition of “sexual abuse of a minor,” which in the statutory rape context before us requires an age difference of at least one year between the perpetrator and the victim. ... Mr. Leger’s statute of conviction, Fla. Stat. § 893.13(6)(b), is overbroad because Fla. Stat. § 893.02(3)—which defines marijuana—includes parts of the marijuana plant that its federal counterpart, 21 U.S.C. § 802(16), does not. Mr. Leger’s marijuana possession convictions therefore do not constitute controlled substance offenses as defined under federal law. As a result, the BIA erred in determining that Mr. Leger was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) and inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(A)(i). ... Applying the categorical approach, the 2008 version of Fla. Stat. § 800.04(4) is broader than the generic federal definition because it does not have any age differential. That means that Mr. Leger’s § 800.04(4) conviction does not constitute the sexual abuse of a minor and is not an aggravated felony under the INA. We vacate the BIA’s contrary decision. ... The BIA should have addressed and resolved Mr. Leger’s argument that § 1229(a)’s claims-processing rule warranted termination of the removal proceeding due to the defective notice to appear. We vacate and remand so that the BIA can address this argument. ... We vacate the BIA’s decision and remand for further proceedings consistent with our opinion. PETITION GRANTED."

[Hats off to Mark Prada, Carlos E. Sandoval and Emma Winger!  Audio of the oral argument is here.]