[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 22, 2005
No. 05-10066 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A45-056-726
NELSON JAVIER SOSA-MARTINEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 22, 2005)
Before CARNES, HULL and MARCUS, Circuit Judges.
HULL, Circuit Judge:
Nelson Javier Sosa-Martinez, through counsel, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order affirming without opinion the
Immigration Judge’s (“IJ”) order that his prior crime of aggravated battery is a
crime involving moral turpitude and that thus he should be removed to Honduras.
Under 8 U.S.C. § 1252(a)(2)(C), this Court lacks jurisdiction to review removal
orders based on a conviction for a crime involving moral turpitude. After review,
we conclude that Sosa-Martinez’s aggravated battery conviction, in violation of
Fla. Stat. Ann. § 784.045, is a crime of moral turpitude under 8 U.S.C. §
1227(a)(2)(A)(i), and thus we dismiss Sosa-Martinez’s petition for review for lack
of jursidiction.
I. BACKGROUND
On July 19, 1995, Sosa-Martinez, a native and citizen of Honduras, was
admitted into the United States at Miami, Florida, as a lawful permanent resident.
On May 24, 1998, Sosa-Martinez, who was then nineteen years of age, was
involved in a fight. During the fight, he stabbed the victim, a rival gang member,
three times with a pocket knife. Sosa-Martinez was charged with attempted second
degree murder. On March 29, 1999, he entered a plea of nolo contendere to a
reduced charge of aggravated battery, in violation of Fla. Stat. Ann. § 784.045.
On May 8, 2001, the INS sent a Notice to Appear to Sosa-Martinez,
charging him as being subject to removal, pursuant to 8 U.S.C. § 1227(a)(2)(A)(i),
2
for having been convicted of a crime involving moral turpitude committed within
ten years of admission for which a sentence of one year or longer may be
imposed.1 At his hearing on March 12, 2002, Sosa-Martinez admitted the
allegations but denied that his aggravated battery conviction was a crime of moral
turpitude. On this basis, Sosa-Martinez moved to terminate his removal
proceedings.
On November 26, 2003, the IJ denied Sosa-Martinez’s motion to terminate
the removal proceedings, determined that Sosa-Martinez was an alien subject to
removal because he had been convicted of a crime involving moral turpitude, and
ordered that he be removed to Honduras. In denying Sosa-Martinez’s motion to
terminate, the IJ determined that Sosa-Martinez was convicted of a crime involving
moral turpitude, and “especially in this case where. . . [Sosa-Martinez] was
convicted of a crime involving repeatedly stabbing a person with a knife
evidencing a depraved mind regardless of human life as is incorporated in the
statute in which he was convicted.”
Sosa-Martinez appealed the IJ’s decision to the BIA, arguing that the crime
for which he was convicted was not one involving moral turpitude. On December
1
The INS did not charge Sosa-Martinez with being deportable as an alien who has
committed an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii).
3
7, 2004, the BIA entered an order, pursuant to 8 C.F.R. § 1003.1(e)(4), summarily
affirming the IJ’s decision. Sosa-Martinez petitions this Court for review.
II. DISCUSSION
A. Jurisdiction
We first must determine whether we have jurisdiction to entertain Sosa-
Martinez’s petition. Bahar v. Ashcroft, 264 F.3d 1309, 1311 (11th Cir. 2001).
Section 242(a)(2)(C) of the INA provides that this Court has no jurisdiction to
review the final order of removal if Sosa-Martinez is removable by reason of
having committed a crime involving moral turpitude for which a sentence of one
year or longer may be imposed. 8 U.S.C. § 1252(a)(2)(C). However, because
judicial review is limited by statutory conditions, we retain jurisdiction to
determine whether those conditions exist. Id. Thus, we must determine if Sosa-
Martinez “is (1) an alien; (2) who is removable; (3) based on having committed a
disqualifying offense.” Moore v. Ashcroft, 251 F.3d 919, 923 (11th Cir. 2001).
Because Sosa-Martinez does not contest the fact that he is an alien, our review is
limited to determining whether Sosa-Martinez’s conviction for aggravated battery
is a conviction for a crime involving moral turpitude. If we determine that
aggravated battery is a crime of moral turpitude, Ҥ 242(a)(2)(C) strips us of
4
jurisdiction to review the final order of removal.” Galindo-Del Valle v. Att’y
Gen., 213 F.3d 594, 598 (11th Cir. 2000).2
B. Florida’s Aggravated Battery Statute
As noted earlier, Sosa-Martinez pled nolo contendere to aggravated battery
in violation of Fla. Stat. Ann. § 784.045. Section 784.045 provides that:
(1)(a) A person commits aggravated battery who, in committing
battery:
1. Intentionally or knowingly causes great bodily harm,
permanent disability, or permanent disfigurement; or
2. Uses a deadly weapon.
Fla. Stat. Ann. § 784.045 (emphasis added). Thus, to be convicted of either prong
of aggravated battery in Florida, a defendant necessarily must be found to have
committed simple battery. Arnold v. State, 514 So.2d 419, 421 (Fla. Dist. Ct. App.
1987) (“battery is a necessarily included lesser offense of. . . aggravated battery”)
Further, Florida’s simple battery statute provides that:
(1)(a) The offense of battery occurs when a person:
1. Actually and intentionally touches or strikes another
person against the will of the other; or
2. Intentionally causes bodily harm to another person.
Fla. Stat. Ann. § 784.03 (emphasis added). “The statutory elements of battery are:
an actual and intentional touching or striking of another person against the will of
2
This Court reviews questions of statutory interpretation de novo, but defers to the BIA’s
interpretation if it is reasonable. Bahar, 264 F.3d at 1311. Where the BIA summarily affirms the
IJ’s decision, this Court “reviews the IJ’s analysis as if it were the Board’s.” Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
5
the other person; or intentionally causing bodily harm to an individual.” Hamrick
v. State, 648 So.2d 274, 276 (Fla. Dist. Ct. App. 1995) (emphasis added). Thus, an
aggravated battery conviction required that Sosa-Martinez:
(A) commit a simple battery by intentionally (1) touching or striking another
person, or (2) causing bodily harm to another person, and
(B) that in committing that battery, he (1) caused great bodily harm,
permanent disability, or permanent disfigurement, or (2) used a deadly
weapon.
C. The Moral Turpitude Provision
INA § 237(a)(2)(A)(i) provides that a defendant who is convicted of a crime
of moral turpitude is removable, as follows:
Any alien who. . . 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. . . is convicted of a crime
for which a sentence of one year or longer may be imposed, is
deportable.
8 U.S.C. § 1227(a)(2)(A)(i).
Although the term “moral turpitude” is not defined by statute, courts have
stated that it involves 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.’”
6
United States v. Smith, 420 F.2d 428, 431 (5th Cir. 1970) (quoting Black’s Law
Dictionary 1160 (Rev. 4th ed. 1957)).3 “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 circumstances
surrounding a defendant's particular conduct.” Itani v. Ashcroft, 298 F.3d 1213,
1215-16 (11th Cir. 2002); see also Garcia v. Att’y Gen., 329 F.3d 1217, 1222 (11th
Cir. 2003); Rodriguez-Herrera v. INS, 52 F.3d 238, 239 (9th Cir. 1995). This court
has concluded that crimes involving moral turpitude include misprision of a felony,
Itani, 298 F.3d at 1216, and aggravated child abuse, Garcia, 329 F.3d 1222.
Accordingly, we must determine whether an aggravated battery offense in Florida
is a crime involving moral turpitude without reference to the facts underlying Sosa-
Martinez’s conviction.
Whether aggravated battery involves moral turpitude is a question of first
impression for this Court, but one which is easily answered in the affirmative. In
Florida, aggravated battery includes, as necessary elements, that the perpetrator
intentionally commit simple battery and in doing so either: (1) cause great bodily
harm, permanent disability, or permanent disfigurement, or (2) use a deadly
weapon. We readily conclude that any intentional battery that includes, as an
3
Decisions of the Fifth Circuit prior to October 1, 1981, have been adopted as binding
precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
7
element of the offense either (1) that it caused great bodily harm, permanent
disability, or permanent disfigurement, or (2) involved the use of a deadly weapon
constitutes a crime of moral turpitude.4
Our conclusion is supported by the decisions of our sister circuits, decisions
involving laws similar to Florida’s aggravated battery statute. See Yousefi v. INS,
260 F.3d 318, 327 (4th Cir. 2001) (concluding that assault with a dangerous
weapon under District of Columbia law involves moral turpitude); Pichardo v.
INS, 104 F.3d 756, 760 (5th Cir. 1997) (finding that aggravated assault pursuant to
Pennsylvania’s statute involves moral turpitude because conviction under the
statute requires bodily injury and a minimum mens rea of recklessness); Gonzales
v. Barber, 207 F.2d 398, 400 (9th Cir. 1953), aff’d, 347 U.S. 637 (1954)
(concluding that assault with a deadly weapon is a crime which involves moral
turpitude); United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 758 (2d. Cir.
1933) (observing that assault with a dangerous weapon “plainly involve[s] moral
turpitude”); see also Matter of Medina, 15 I & N Dec. 611, 613-14 (concluding that
4
In Garcia, this Court held that the inherent nature of aggravated child abuse, in violation
of Fla. Stat. Ann. §§ 827.03 and 784.045, constitutes a crime of moral turpitude. Garcia, 329
F.3d at 1222. Under Florida law, aggravated child abuse occurs in several ways, including when
a person commits aggravated battery on a child. See Fla. Stat. Ann. § 827.03(2)(a) (Fla. Stat.
Ann. § 827.03(2)(a) provides that “‘Aggravated child abuse’ occurs when a person. . . [c]ommits
aggravated battery on a child”). While aggravated battery on a child may be more depraved than
aggravated battery on an adult, we have already concluded that a conviction for aggravated
battery in Florida constitutes a crime of moral turpitude. However, because a child was involved
in Garcia, we also analyze above why aggravated battery on any person is a crime of moral
turpitude.
8
assault with a deadly weapon under Illinois law involves moral turpitude under any
of Illinois law’s three mental states – intent, knowledge, or recklessness).
III. CONCLUSION
Because Sosa-Martinez was convicted of a crime involving moral turpitude,
committed within 10 years after his date of admission, and for which a sentence of
one year or longer may be imposed, we dismiss Sosa-Martinez’s petition for
review for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(C).
PETITION DISMISSED.
9