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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13165
____________________
EMMANUEL LAUTURE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A072-842-479
____________________
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2 Opinion of the Court 19-13165
Before JORDAN, JILL PRYOR, and TJOFLAT, Circuit Judges.
JORDAN, Circuit Judge:
The Board of Immigration Appeals, affirming the decision of
an immigration judge, ruled that Emmanuel Lauture was remove-
able from the United States because his Florida conviction for bur-
glary of an unoccupied dwelling, see Fla. Stat. § 810.02(3)(b), con-
stituted a “crime involving moral turpitude” (a CIMT). Mr. Lau-
ture now petitions for review of the BIA’s decision.
Following oral argument and a review of the record, we
grant Mr. Lauture’s petition, vacate the BIA’s judgment, and re-
mand for further proceedings. Florida has applied § 810.02(3)(b) to
a dwelling which was not occupied prior to or after the entry, see
State v. Bennett, 565 So. 2d 803, 805 (Fla. 2d DCA 1990), and that
application impacts whether a violation of § 810.02(3)(b) is a CIMT.
See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (the ques-
tion is whether there is “a realistic probability, not a theoretical pos-
sibility, that the State would apply its statute to conduct that falls
outside the generic definition” of a “listed crime in a federal stat-
ute”). Neither the IJ nor the BIA, however, addressed Mr. Lau-
ture’s argument about the impact of Bennett. The BIA must do so
on remand.
I
Mr. Lauture was paroled into the United States in 2005 and
became a lawful permanent resident in 2007. On July 13, 2010, he
pled guilty to burglary of an unoccupied dwelling in violation of
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19-13165 Opinion of the Court 3
Fla. Stat. § 810.02(3)(b). He was originally sentenced to probation
but later violated the terms of his probation and received a sen-
tence of 40 months’ imprisonment.
In 2018, the Department of Homeland Security served Mr.
Lauture with a notice to appear, charging him with being subject
to removal from the United States pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(i), for having been convicted of a CIMT within five
years of his admission. DHS initiated removal proceedings against
Mr. Lauture, and he responded by filing a motion to terminate. He
argued that his conviction for burglary of an unoccupied dwelling
was not a CIMT. In part, he cited Bennett, 565 So. 2d 803, for the
proposition that a defendant “may be convicted of burglary to a
dwelling for entering an unsold and unoccupied mobile home sit-
ting on a sales lot.” A.R. at 159. The DHS opposed the motion to
terminate.
The IJ denied Mr. Lauture’s motion to terminate and or-
dered Mr. Lauture removed. She concluded that Florida’s burglary
statute was divisible and that a conviction for burglary of an unoc-
cupied dwelling involved moral turpitude. She focused on the par-
ticular dangers inherent in residential burglaries given the risk of a
face-to-face encounter between an occupant and a burglar, and
found that this risk remains even if a dwelling is unoccupied at the
time due to the likelihood of confrontation between the burglar
and a police officer or investigating bystander. In her discussion of
Florida law, the IJ did not discuss or analyze Bennett, which Mr.
Lauture had cited.
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In his brief to the BIA, Mr. Lauture argued in part that the
Florida burglary statute “extends beyond the contemporary defini-
tion of burglary in that it includes conveyances.” Id. at 30. In sup-
port of that argument, he again cited Bennett. See id. (“A defend-
ant therefore may be convicted of burglary to a dwelling for enter-
ing an unsold and unoccupied mobile home sitting on a sales lot.
State v. Bennett, 565 So. 2d 803 (Fla. 2d DCA 1990).”).
The BIA dismissed Mr. Lauture’s appeal. It concluded that
burglary of an unoccupied dwelling under § 810.02(3)(b) categori-
ally involves moral turpitude because the dwelling, even if unoc-
cupied, must be suitable for a person to live in at night. As the BIA
put it, Mr. Lauture had “not demonstrated a realistic probability
that . . . Florida would prosecute a case of burglary of an unoccu-
pied dwelling, which takes place within the curtilage thereof,
where the dwelling was never occupied prior to or after the bur-
glary occurred.” Id. at 5 (emphasis removed). The BIA also rea-
soned that, under Florida law, “unoccupied” only means that “no
one was physically present at the time of the burglary”—not that
the dwelling was “abandoned, disused, or shuttered.” Id. at 6. Be-
cause the BIA thought that Mr. Lauture had not presented any Flor-
ida case “in which the dwelling was truly never occupied,” it deter-
mined he had not shown a realistic probability of prosecution for
non-turpitudinous conduct. Id. at 8 (emphasis in original). Like
the IJ, the BIA did not discuss Bennett even though Mr. Lauture
had cited it in his appellate brief.
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II
We “review de novo the legal question of whether a[ ] con-
viction qualifies as a [CIMT].” Gelin v. U.S. Att’y Gen., 837 F.3d
1236, 1240 (11th Cir. 2016). In determining whether a conviction
is a CIMT, we employ the categorical approach (if the statute of
conviction is not divisible and sets out alternative means of com-
mitting a single offense) or the modified categorical approach (if
the statute of conviction is divisible and creates separate offenses).
See Pereida v. Wilkinson, 141 S. Ct. 754, 762–63 (2021); George v.
U.S. Att’y Gen., 953 F.3d 1300, 1303–04 (11th Cir. 2020). Under
either approach, we do not consider the facts underlying the con-
viction. See, e.g., Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1305–
11 (11th Cir. 2011). Where the statute of conviction is divisible—
i.e., where it sets out different offenses—and some of the crimes set
out in the statute involve moral turpitude and others do not, the
person seeking relief bears the burden of “prov[ing] that his actual,
historical offense of conviction” is not a CIMT. See Pereida, 141 S.
Ct. at 763.
III
In this case, the IJ and the BIA concluded that Fla. Stat. §
810.02 is divisible and Mr. Lauture was convicted of violating Fla.
Stat. § 810.02(3)(b). Based on our review of the statute, case law,
and the record, we agree.
We start by explaining why, contrary to Mr. Lauture’s argu-
ments, § 810.02 is divisible. In a divisibility determination, our
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“first task [when] faced with an alternatively phrased statute is . . .
to determine whether its listed items are elements [and, therefore,
different crimes] or means [of committing the same crime].”
Mathis v. United States, 136 S. Ct. 2243, 2256 (2016). In Mathis, the
Supreme Court “gave us a few rules of thumb to use to determine
whether statutory alternatives are means or elements: [1] see how
the state supreme court has defined the elements; [2] see if different
statutory alternatives carry different penalties because different
penalties means the listed items are different elements; [3] look at
the statute itself to see if the statute identifies what a prosecutor
must charge as elements; and [4] when all else fails, look at the rec-
ord of conviction solely to see whether the listed items are ele-
ments.” Zarate v. U.S. Att’y Gen., --- F.4th ----, 2022 WL 499716, at
*13 (11th Cir. Feb. 18. 2022) (Tjoflat, J., concurring) (citing Mathis,
136 S. Ct. at 2256).
Here, § 810.02 is divisible under Mathis’ second rationale.
That is because the different subsections of the statute carry differ-
ent penalties.
Florida law defines burglary as “[e]ntering a dwelling, a
structure, or a conveyance with the intent to commit an offense
therein.” § 810.02(1)(b)(1). As the Florida Supreme Court has ex-
plained, the burglary statute requires proof only that the defendant
entered a place without authorization and with the intent to com-
mit any other offense. See Toole v. State, 472 So. 2d 1174, 1175
(Fla. 1985) (“[B]eyond allegation and proof of unauthorized entry
. . . the essential element to be alleged and proven on a charge of
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19-13165 Opinion of the Court 7
burglary is the intent to commit an offense, not the intent to com-
mit a specified offense, therein.”).
As a whole, Fla. Stat. § 810.02 sets out several distinct bur-
glary offenses with different penalties. For example, subsection (2)
of § 810.02 makes certain burglaries first-degree felonies, while sub-
section (3) makes some burglaries second-degree felonies, and sub-
section (4) makes other burglaries third-degree felonies. That these
different subsections carry different penalties shows that the statute
is divisible into first-, second-, and third-degree felony offenses. Ac-
cordingly, we can narrow the scope of our inquiry to § 810.02(3).
But even subsection (3) is “alternatively phrased.” Mathis,
136 S. Ct. at 2256. This subsection of the statute provides that a
person is guilty of a second-degree felony if
in the course of committing the offense, the offender
does not make an assault or battery and is not and
does not become armed with a dangerous weapon or
explosive, and the offender enters or remains in a:
(a) Dwelling, and there is another person in the dwell-
ing at the time the offender enters or remains;
(b) Dwelling, and there is not another person in the
dwelling at the time the offender enters or remains;
(c) Structure, and there is another person in the struc-
ture at the time the offender enters or remains;
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(d) Conveyance, and there is another person in the
conveyance at the time the offender enters or re-
mains;
(e) Authorized emergency vehicle, as defined in s.
316.003; or
(f) Structure or conveyance when the offense in-
tended to be committed therein is theft of a con-
trolled substance as defined in s. 893.02. . . .
Fla. Stat. § 812.02(3) (emphasis added). For purposes of the bur-
glary statute, a “dwelling” is defined as
a building or conveyance of any kind, including any
attached porch, whether such building or conveyance
is temporary or permanent, mobile or immobile,
which has a roof over it and is designed to be occu-
pied by people lodging therein at night, together with
the curtilage thereof.
Fla. Stat. § 810.011(2). 1
1 The Supreme Court has held that Florida’s burglary statute is broader than
“generic burglary” because Florida’s definition of dwelling includes a build-
ing’s curtilage. See James v. United States, 550 U.S. 192, 212 (2007), overruled
on other grounds by Johnson v. United States, 576 U.S. 591 (2015). Since John-
son, we have affirmed that Florida’s statute reaches beyond generic burglary
and cannot serve as a predicate “violent felony” under the Armed Career
Criminal Act, 18 U.S.C. § 924(e). See United States v. Esprit, 841 F.3d 1235,
1240 (11th Cir. 2016). Nor is such a conviction considered a crime of violence
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19-13165 Opinion of the Court 9
Upon examining the text of this subsection and the statute
as a whole, we conclude that § 810.02(3) is further divisible in sub-
sections (a) through (f). In our view, the statute lists alternative
offenses that constitute a second-degree felony, and whose ele-
ments are divided into subsections and listed conjunctively. This
is apparent not just from the way § 810.02(3) is phrased, but also
from the statutory scheme as a whole. For example, if the charge
is for burglarizing a conveyance, the state must prove that the con-
veyance is occupied at the time the offender enters or remains to
consider the conviction a second-degree felony under Florida law.
See § 810.02(3)(d). If the conveyance is unoccupied, burglary only
qualifies as a third-degree felony and carries different penalties. See
§ 810.02(4)(b).
Burglaries of occupied and unoccupied dwellings can both
qualify as second-degree felonies. But Mr. Lauture’s record of con-
viction—our last guidepost under Mathis—convinces us that con-
victions for § 810.02(3)(a) and (b) are still charged and sentenced as
different offenses with distinct elements. In determining whether
an actual, historical offense is a CIMT, the BIA and IJ may consider
the record of conviction—i.e., the charging document, plea, ver-
dict, and sentence—but nothing more. See Fajardo, 659 F.3d at
1305. According to the documents in the administrative record,
Mr. Lauture pled guilty to and was convicted of “burglary of [an]
under § 2L1.2 of the United States Sentencing Guidelines. See United States
v. Garcia-Martinez, 845 F.3d 1126, 1134 (11th Cir. 2017).
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unoccupied dwelling,” an offense listed in the judgment as a sec-
ond-degree felony (“F2”) under § 810.02. A.R. at 119 (judgment).
See also A.R. at 137 (memorandum of sentencing). The provision
of § 810.02 that addresses burglary of an unoccupied dwelling is
subsection (3)(b).
We therefore agree with the IJ and the BIA that Mr. Lau-
ture’s conviction was under § 810.02(3)(b), and now turn to
whether that conviction was for a CIMT.
IV
In the case of a person “who has been admitted to the United
States,” the government has the burden of establishing by “clear
and convincing evidence” that he or she is removable. See 8 U.S.C.
§ 1229a(c)(3)(A). See also Francisco v. U.S. Att’y Gen., 884 F.3d
1120, 1125 (11th Cir. 2018). The government therefore bore the
burden of establishing by clear and convincing evidence that Mr.
Lauture’s burglary conviction was a CIMT. Clear and convincing
evidence is proof that a contention or claim is “highly probable.”
See Florida v. Georgia, 141 S. Ct. 1175, 1180 (2021) (citation omit-
ted); Fults v. GDCP Warden, 764 F.3d 1311, 1314 (11th Cir. 2014)
(citation omitted).
A
The term “moral turpitude” is not (and has never been) de-
fined by a federal immigration statute or regulation. So the mean-
ing of the term has been left to the administrative and judicial ad-
judicative processes.
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19-13165 Opinion of the Court 11
For its part, the BIA defines moral turpitude as “conduct that
is ‘inherently base, vile, or depraved, and contrary to the accepted
rules of morality and the duties owed between persons or to soci-
ety in general.’ To involve moral turpitude, a crime requires two
essential elements: reprehensible conduct and a culpable mental
state.” Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833–34 (BIA
2016) (internal citations omitted). We defer to the BIA’s definition
and its application of that definition in precedential opinions. See
Negusie v. Holder, 555 U.S. 511, 517 (2009); Arevalo v. U.S. Att’y
Gen., 872 F.3d 1184, 1187–88 (11th Cir. 2017).
Our own definition is consistent with the BIA’s. We have
described moral turpitude as involving “an act of baseness, vile-
ness, 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.”
Smith v. Att’y Gen., 983 F.3d 1206, 1210 (11th Cir. 2020) (citation
omitted).
“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, rather than the cir-
cumstances surrounding a defendant’s particular conduct.” Itani v.
Ashcroft, 298 F.3d 1213, 1215–16 (11th Cir. 2002). See also
Keungne v. U.S. Att’y Gen., 561 F.3d 1281, 1284 (11th Cir. 2009)
(“In other words, the determination that a crime involves moral
turpitude is made categorically, based on the statutory definition
or nature of the crime, not the specific conduct predicating a
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particular conviction.”). The question is whether the “least culpa-
ble conduct necessary to sustain a conviction under the statute
meets the standard of a crime involving moral turpitude.” Gelin,
837 F.3d at 1241 (citation omitted). See also Zarate, 2022 WL
499716, at *12 (Tjoflat, J., concurring) (applying the categorical ap-
proach to a hypothetical burglary statute).
As part of the categorical approach, we ask whether there is
“a realistic probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the generic def-
inition of a [CIMT].” Duenas-Alvarez, 549 U.S. at 193. See also
Pierre v. U.S. Att’y Gen., 879 F.3d 1241, 1252 (11th Cir. 2018) (ap-
plying the realistic probability test to a CIMT determination). “To
defeat the categorical comparison in this manner, [the person seek-
ing relief must] demonstrate that the State actually prosecutes the
relevant offense in cases involving [non-turpitudinous conduct].”
Moncrieffe v. Holder, 569 U.S. 184, 206 (2013). See also Matter of
Ferreira, 26 I. & N. Dec. 415, 422 (BIA 2014) (“[T]he ‘realistic prob-
ability’ test must be applied as part of the categorical approach[.]”).
There are two lines of BIA precedent addressing whether a
burglary offense constitutes a CIMT. We discuss both below.
B
In 1946, the BIA explained that it “ha[d] always maintained
that [burglary] offenses may or may not involve moral turpitude,
the determinative factor being whether the crime intended to be
committed at the time of entry or prior to the breaking out
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19-13165 Opinion of the Court 13
involves moral turpitude.” Matter of M-, 2 I. & N. Dec. 721, 723
(BIA 1946) (collecting decisions). The BIA ruled in Matter of M-
that third-degree burglary under New York law was not a CIMT,
reasoning as follows:
There is nothing inherently immoral, base, vile, or de-
praved in unlawfully breaking and entering a building
in the State of New York when viewed in the light of
the definition of those terms as set forth in section 400
of the Penal Law. For example, pushing ajar the un-
locked door of an unused structure and putting one’s
foot across the threshold would constitute a breaking
and entering. Certainly such an act, in and of itself,
should not be stigmatized as base, vile or depraved.
The only remaining element in the statute is the par-
ticular crime which accompanies or precedes the act
of breaking out. It is this element alone that has any
significance in the determination of moral turpitude.
Id. See also Matter of Brieva-Perez, 23 I. & N. Dec. 766, 772 (BIA
2005) (explaining that, under Matter of M-, burglary and breaking
and entering “would not generally be considered crimes of moral
turpitude unless accompanied by the intent to commit a morally
turpitudinous crime, such as larceny, after entering”), abrogated on
different grounds by Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011).
Mr. Lauture’s statute of conviction, § 810.02(3)(b), incorpo-
rates the general definition of burglary found in § 810.02(1)(b)(1).
As noted earlier, burglary under Florida law requires only that the
defendant enter the premises in question with the intent to commit
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14 Opinion of the Court 19-13165
any other offense. See § 810.02(1)(b)(1); Toole, 472 So. 2d at 1175.
As a result, the least culpable conduct prohibited by § 810.02(3)(b),
see Gelin, 837 F.3d at 1241 (citation omitted), is unauthorized entry
with the intent to commit an offense which itself is not a CIMT.
And that means that § 810.02(3)(b) is not categorically a CIMT un-
der the rationale of Matter of M-. See Cuevas-Gaspar v. Gonzales,
430 F.3d 1013, 1019 (9th Cir. 2005) (“Because, under Washington
law, an intent to commit any crime satisfies the accompanying
crime element of burglary, the offense encompasses conduct that
falls outside the definition of a crime of moral turpitude.”) (empha-
sis in original), abrogated on different grounds by Holder v. Mar-
tinez Gutierrez, 566 U.S. 583 (2012). 2
C
In Matter of Louissaint, 24 I. & N. Dec. 754, 756, 759 (BIA
2009), the BIA distinguished Matter of M- and concluded that bur-
glary of an occupied dwelling with the intent to commit any crime
therein, in violation of Fla. Stat. § 810.02(3)(a), is a CIMT. The BIA
reasoned that burglaries in dwellings are particularly concerning
2 We held in Esprit that “‘no conviction under [§ 810.02] can be assumed to be
generic’” because Florida’s definition of “dwelling” under that statute includes
a dwelling’s curtilage and thus extends beyond generic burglary. Esprit, 841
F.3d at 1241 (citation omitted). Though we characterized the statute as “a
single indivisible crime” in that case, we did so only when considering whether
the statute’s treatment of dwellings could be divisible for purposes of separat-
ing qualifying “violent felon[ies]” under the ACCA from non-qualifying of-
fenses. Id. The case did not address the divisibility of the statute when distin-
guishing CIMTs in the immigration context.
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19-13165 Opinion of the Court 15
because “the burglar tears away the resident’s justifiable expecta-
tion of privacy and personal security and invites a violent defensive
response from the resident.” Matter of Louissaint, 24 I. & N. Dec.
at 758–59. 3
The BIA extended Matter of Louissaint in Matter of J-G-D-
F-, 27 I. & N. Dec. 82, 88 (BIA 2017), ruling that an Oregon statute
criminalizing the burglary of an unoccupied dwelling is a CIMT
provided that the dwelling is at least intermittently occupied. The
BIA reasoned that such an extension of Matter of Louissaint was
appropriate because the Oregon statute required, at a minimum,
that the dwelling be regularly or intermittently occupied, raising
the likelihood that a person might be present in the dwelling at the
time of the offense and therefore involving “the same justifiable
expectation of privacy and personal security as the Florida burglary
offense [it] considered in [Matter of] Louissaint.” Id.
The Ninth Circuit, focusing on the unique “sanctity of the
home,” denied the petition for review arising from Matter of J-G-
D-F-. See Diaz-Flores v. Garland, 993 F.3d 766, 772 (9th Cir. 2021).
The Ninth Circuit reasoned that because Oregon’s burglary statute
“requires the burglarized dwellings be regularly or intermittently
3 At the time, the BIA erroneously noted that the Florida definition of burglary
matched the generic definition, but it only found this detail “instructive” and
“not dispositive.” Matter of Louissaint, 24 I. & N. Dec. at 758 n.3. Thus, de-
spite the more recent clarifications in James, Esprit, and Garcia-Martinez that
Florida burglary of a dwelling stretches beyond the generic burglary of a dwell-
ing, the underpinnings of Matter of Louissaint have not shifted.
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16 Opinion of the Court 19-13165
occupied, a conviction will necessarily involve an intrusion onto
the ‘justifiable expectation of privacy and personal security’ that
people have in the places where they retreat at night for lodging.”
Id. (citing Matter of J-G-D-F-, 27 I. & N. Dec. at 88). The Ninth
Circuit distinguished Matter of M-, explaining that the BIA’s rea-
soning there “turned on [New York’s] statutory definitions, which
cast a wide net over a range of buildings, including ones where no
person would likely be present.” Id. at 773.
The Fourth Circuit reached a similar conclusion in Uribe v.
Sessions, 855 F.3d 622, 626–27 (4th Cir. 2017), holding that a viola-
tion of a Maryland statute criminalizing burglary of an unoccupied
dwelling is a CIMT. Under Maryland law a structure retains its
character as a dwelling even if temporarily left vacant as long as the
dwelling has not been abandoned completely by the occupants and
remains suitable for occupancy during the vacancy. Id. at 626. Like
the BIA in Matter of J-G-D-F, the Fourth Circuit was “persuaded
that an individual’s expectation that her dwelling will remain pri-
vate, secure, and free from intruders intending to commit a crime
is violated regardless of whether the dwelling is occupied at the
time of the burglary.” Id. at 627.
Mr. Lauture argued to the BIA that cases like Matter of J-G-
D-F- did not control because Florida’s burglary statute defines a
dwelling much more broadly and does not require that “a dwelling
be occupied regularly, intermittently[,] or ever.” A.R. at 31. The
BIA, faced with this argument, addressed whether under the “real-
istic probability” component of the categorical approach Mr.
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19-13165 Opinion of the Court 17
Lauture could show that Florida “prosecutes non-turpitudinous
burglaries of an unoccupied dwelling.” A.R. at 7 (citing Moncrieffe,
569 U.S. at 206, and Duenas-Alvarez, 549 U.S. at 193).
The BIA concluded that Mr. Lauture presented “no . . . case”
of such a prosecution. Id. It explained that this failure was not
“surprising,” for in “considering the ‘theoretical possibility’ of a
burglary conviction based on an entry into or remaining in a dwell-
ing that is truly never occupied, one must be left to wonder how
such a crime could arise in the first place. After all, the Florida bur-
glary statute requires that the dwelling be ‘designed to be occupied
by people lodging therein at night[.]’” A.R. at 7 (quoting §
810.011(2)) (emphasis in original). “Because [Mr. Lauture] ha[d]
not presented a case of a burglary prosecuted in Florida in which
the dwelling was truly never occupied, he ha[d] not established a
realistic probability of such a case.” A.R. at 8.
The problem with the BIA’s analysis is that Mr. Lauture did
present a Florida case allowing a burglary prosecution for entry
into a dwelling that had never been occupied. In Bennett, 565 So.
2d 803, the Second District held that an unsold and pre-fabricated
mobile home on a sales lot, which was fully furnished but unoccu-
pied and not connected to utilities, could constitute a “dwelling”
for purposes of a burglary prosecution so long as it was “actually to
be used for habitation.” Id. at 804–05. The Second District there-
fore reversed a trial court order reducing a charge of burglary of a
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18 Opinion of the Court 19-13165
dwelling (a second-degree felony) to burglary of a structure (a
third-degree felony). See id. 4
Though furnished, an unsold mobile home on a sales lot—
never occupied and not connected to utilities—arguably does not
present the same privacy and safety concerns that inhabited dwell-
ings typically present. See Matter of J-G-D-F-, 27 I. & N. Dec. at 88;
Diaz-Flores, 993 F.3d at 772; Uribe, 855 F.3d at 627. Indeed, as the
Second District acknowledged in Bennett, an unsold mobile home
on a sales lot can be converted to a number of non-residential uses,
such as office space. See Bennett, 565 So. 2d at 805. Mr. Lauture
cited Bennett to the BIA (just as he did to the IJ), and it was error
for the BIA not to address the impact of that case on the “realistic
probability” component of the categorical approach.
The government argues on appeal that Bennett does not ul-
timately matter because the Second District required a showing
that the mobile home would be used for habitation. See Br. for
Respondent at 33–34. Maybe so, but it is the BIA and not the gov-
ernment that has to figure out the impact of Bennett. Moreover,
the government’s take on Bennett does not account for the BIA’s
mistaken belief that there are no Florida burglary cases involving a
dwelling which had never been occupied.
4 The Second District retreated from Bennett in Munoz v. State, 937 So. 2d
686, 688–89 (Fla. 2d DCA 2006), but the Florida Supreme Court later disap-
proved of Munoz in Young v. State, 141 So. 3d 161, 167 (Fla. 2013). So Bennett
remains good law today.
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19-13165 Opinion of the Court 19
Bennett aside, the BIA may have misread Florida burglary
law with respect to dwellings for additional reasons. Here’s why.
First, the BIA said that it could not imagine a burglary pros-
ecution in Florida for a dwelling that was “never occupied.” See
A.R. at 7 (emphasis removed). But a Florida Supreme Court case
decided after Bennett affirms that “[o]ccupancy is no longer a criti-
cal element under [the statutory] definition” of burglary, and ex-
plains that “a structure’s design or suitability for habitation, rather
than actual occupancy or intent to occupy, controls in determining
whether a structure constitutes a dwelling [under § 810.011(2)].”
Young, 141 So. 3d at 166 (citation omitted). See also Jacobs v. State,
41 So. 3d 1004, 1006–07 (Fla. 1st DCA 2010) (holding that a jury
could reasonably find that a vacant home under renovation, with
roof and walls and equipped with utilities that were not turned on,
was a dwelling under § 810.011(2) though it had been unoccupied
for several years due to a fire).
Second, the BIA cited Munoz, 937 So. 2d at 689, for the prop-
osition that in Florida a “conviction for burglary of an unoccupied
dwelling will not stand . . . where the house ‘was undergoing a total
restoration’ and ‘was missing interior walls, sheetrock, and insula-
tion.’” A.R. at 8. As noted in footnote 4, however, the Florida Su-
preme Court disapproved of Munoz in Young, 141 So. 3d at 167.
So Munoz is no longer a valid statement of Florida burglary law
with respect to dwellings.
We could attempt to determine ourselves whether Bennett
(by itself or in conjunction with cases like Young and Jacobs)
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20 Opinion of the Court 19-13165
satisfies Mr. Lauture’s burden of demonstrating a “realistic proba-
bility” that Florida will apply his statute of conviction, §
810.02(3)(b), to burglaries that are not categorically CIMTs under
the BIA’s framework. But that would not be appropriate because
it is the BIA which must first grapple with the Florida decisions dis-
cussed above. “Generally speaking, a court of appeals should re-
mand a case to an agency for decision of a matter that statutes place
primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12,
16 (2002). See also Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1339
(11th Cir. 2011) (remanding case to the BIA to apply the modified
categorical approach in the first instance upon concluding that it
erred in applying the categorical approach); N.L.R.B. v. Enter.
Ass’n of Pipefitters, 429 U.S. 507, 522 n.9 (1977) (“When an admin-
istrative agency has made an error of law, the duty of the [c]ourt is
to ‘correct the error of law committed by that body, and, after do-
ing so to remand the case to the [agency] so as to afford it the op-
portunity of examining the evidence and finding the facts as re-
quired by law.’”) (citation omitted). So vacatur and remand are in
order.
V
We vacate the BIA’s decision and remand so that the BIA
can address Bennett (and the other Florida cases discussed in this
opinion) under the “realistic probability” component of the cate-
gorical approach. Once it does so, the BIA can determine whether
Mr. Lauture’s conviction for burglary of an unoccupied dwelling in
violation of Fla. Stat. § 810.02(3)(b) is categorically a CIMT.
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19-13165 Opinion of the Court 21
PETITION GRANTED.