United States Court of Appeals,
Eleventh Circuit.
No. 94-5244.
Deryck Barrington RAMSEY, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
June 21, 1995.
Petition for Review of an Order of the Immigration and
Naturalization Service.
Before COX and BLACK, Circuit Judges, and FAY, Senior Circuit
Judge.
PER CURIAM.
Deryck Ramsey was ordered deported from the United States
under sections 241(a)(2)(A)(ii) and (iii) of the Immigration and
Nationality Act (INA), 8 U.S.C. §§ 1251(a)(2)(A)(ii), (iii),
because he had been convicted after entering the United States of
two separate crimes involving moral turpitude, and also because one
of those crimes was an aggravated felony. Ramsey appealed the
deportation order to the Board of Immigration Appeals (BIA). After
conducting a de novo review, the BIA dismissed Ramsey's appeal.
Ramsey now appeals from the BIA decision, contending that the BIA
erred in determining his conviction for attempted lewd assault
under Florida Statutes § 800.04(1) was an aggravated felony, and
that the BIA abused its discretion by denying Ramsey's request for
a waiver of deportability under INA § 212(c), 8 U.S.C. § 1182(c).
We affirm.
I. FACTS AND PROCEDURAL HISTORY
Deryck Ramsey is a native and citizen of Jamaica who was
admitted to the United States as a lawful permanent resident in
October 1976. Ramsey's mother, brother, and sister live in the
United States; they are all United States citizens. In addition,
Ramsey has fathered four children, all of whom live in the United
States and are United States citizens.
On September 10, 1990, Ramsey was convicted of lewd assault in
violation of Florida Statutes § 800.04(2) for having committed a
sexual battery "upon A.R., a child under the age of 16 years, by
inserting his penis in A.R.'s vagina." (R.1 at 190, 194). He was
sentenced to five years of supervised probation. While Ramsey was
still on probation, he committed another violation. On March 8,
1993, Ramsey was charged with violating Florida Statutes §§
777.04(1) and 800.04(1) by "attempt[ing] to commit a Lewd Assault."
The information alleged that Ramsey "attempt[ed] to rub M.W.'s
vagina, but [he] failed in the perpetration or was intercepted or
prevented in the execution of said offense." (R.1 at 171). Ramsey
pled guilty to attempted lewd assault. The trial court accepted
Ramsey's plea, revoked his probation, and sentenced him to a five
year term of imprisonment to run concurrently with his original
five year sentence. The court entered its judgment on May 12,
1993.
After Ramsey was convicted of the second offense, the
Immigration and Naturalization Service (INS) commenced deportation
proceedings against Ramsey. The INS charged that Ramsey was
deportable for two reasons. First, it alleged he was deportable
under INA § 241(a)(2)(A)(ii), 8 U.S.C. § 1251(a)(2)(A)(ii), because
he had been convicted, after entry into the United States, of two
separate crimes involving moral turpitude. Second, the INS charged
that Ramsey was deportable under INA § 241(a)(2)(A)(iii), 8 U.S.C.
§ 1251(a)(2)(A)(iii), because he had been convicted of an
aggravated felony after entering the United States. After a
hearing, an immigration judge found that Ramsey was deportable as
charged.
Ramsey thereafter applied for a waiver of deportability
pursuant to INA § 212(c), 8 U.S.C. § 1182(c). After conducting an
evidentiary hearing, the immigration judge denied Ramsey's § 212(c)
application. Ramsey appealed the decisions of the immigration
1
judge to the BIA. Ramsey raised two major issues on appeal.
Ramsey challenged his deportability as an aggravated felon pursuant
to INA § 241(a)(2)(A)(iii) and the immigration judge's denial of
his request for a waiver of deportability pursuant to INA § 212(c).
The BIA found that Ramsey's conviction for attempted lewd
assault on May 12, 1993 was an aggravated felony for which Ramsey
was deportable under INA § 241(a)(2)(A)(iii). The BIA also denied
Ramsey's application for a waiver of deportability under INA §
212(c). Ramsey appeals the BIA's decision to this court.
II. ISSUES ON APPEAL AND STANDARDS OF REVIEW
Ramsey raises two issues on appeal. First, he contends that
the BIA erred in finding him deportable as an aggravated felon
pursuant to INA § 241(a)(2)(A)(iii), arguing that attempted lewd
1
In its order, the BIA noted that Ramsey raised several
other specific objections to the immigration judge's decision.
Because the BIA reviewed Ramsey's application de novo, it found
that it did not need to address the other contentions. (R.1 at
13).
assault is not an aggravated felony.2 Whether Ramsey's conviction
for attempted lewd assault is an aggravated felony is a question of
law which we review de novo. See Kaczmarczyk v. I.N.S., 933 F.2d
588, 593 (7th Cir.), cert. denied, 502 U.S. 981, 112 S.Ct. 583, 116
L.Ed.2d 608 (1991).
Second, Ramsey contends that the BIA erred in denying
Ramsey's application for relief from deportation pursuant to INA §
212(c). We review the BIA's denial of § 212(c) relief for abuse of
discretion, Blackwood v. I.N.S., 803 F.2d 1165, 1168 (11th
Cir.1986), and find Ramsey's contention that the BIA abused its
discretion to be completely without merit. 3 Therefore, we limit
our discussion to Ramsey's first contention.
III. DISCUSSION
Ramsey was convicted of two offenses. He was convicted of
lewd assault in September 1990 and of attempted lewd assault in May
1993. It is uncontroverted that both offenses are crimes involving
moral turpitude. Ramsey only challenges the finding that he
committed an aggravated felony. Therefore, the sole issue meriting
2
Regardless of whether Ramsey is an aggravated felon, he is
still deportable pursuant to INA § 241(a)(2)(A)(ii) because of
his conviction for two crimes of moral turpitude. Nonetheless,
Ramsey contends the finding that he is deportable as an
aggravated felon pursuant to INA § 241(a)(2)(A)(iii) is material
because under INA § 212(a)(6)(B), 8 U.S.C. § 1182(a)(6)(B),
aliens who apply for readmission into the United States within
five years of being deported are generally excludable unless the
Attorney General consents to the readmission; however, in the
case of aggravated felons, the Attorney General's consent is
required for 20 years. Id. We agree with Ramsey's contention
and therefore consider the merits of whether he is deportable
pursuant to INA § 241(a)(2)(A)(iii).
3
We affirm the BIA's denial of § 212(c) relief without
discussion pursuant to 11th Cir.R. 36-1.
discussion in this case is whether the BIA erred in finding Ramsey
deportable under INA § 241(a)(2)(A)(iii) as an aggravated felon.
Ramsey contends that his conviction for attempted lewd assault is
an aggravated felony only if it constitutes a crime of violence, as
defined in 18 U.S.C. § 16. Ramsey argues that his violation of
Fla.Stat. § 800.04 is not a crime of violence. The INS contends,
however, that attempted lewd assault is a crime of violence under
18 U.S.C. § 16 because it is a felony involving a substantial risk
that physical force may be used against the victim.
Our discussion of this issue begins with the text and relevant
history of INA § 241(a)(2)(A)(iii), which provides: "Any alien who
is convicted of an aggravated felony at any time after entry is
deportable." INA § 241(a)(2)(A)(iii), 8 U.S.C. §
1251(a)(2)(A)(iii). The term "aggravated felony" is defined in INA
§ 101(a)(43), 8 U.S.C. § 1101(a)(43). The section currently
defines an "aggravated felony" as one of a number of offenses,
including "a crime of violence (as defined in section 16 of Title
18, but not including a purely political offense) for which the
term of imprisonment imposed (regardless of any suspension of
imprisonment) is at least 5 years." INA § 101(a)(43)(F).4
4
It is uncontroverted that Ramsey's offenses would only
qualify as aggravated felonies if they are considered "crime[s]
of violence." The BIA correctly found that Ramsey's first
conviction for lewd assault in September 1990 is not an
aggravated felony under INA § 241(a)(2)(A)(iii) because at the
time Ramsey was convicted, INA § 101(a)(43) did not include "a
crime of violence" in its definition of "aggravated felony." But
in November 1990, the definition of "aggravated felony" in §
101(a)(43) was amended to include a "crime of violence." The
amendment only applies, however, to offenses committed after
November 29, 1990, the effective date of the amendment.
Immigration Act of 1990, Pub.L. No. 101-649, § 501, 104 Stat.
4978, 5048 (1990). Because Ramsey's first conviction occurred in
As required by INA § 101(a)(43)(F), we look to the definition
of "crime of violence" in 18 U.S.C. § 16 to determine whether
attempted lewd assault is an aggravated felony. According to that
section, a "crime of violence" is:
(a) an offense that has as an element the use, attempted use,
or threatened use of physical force against the person or
property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.
18 U.S.C. § 16. In determining whether Ramsey committed a crime of
violence by violating Florida Statutes §§ 777.04(1) and 800.04(1),
we only look at the statutory definition of the crime of
conviction, not the underlying facts and circumstances of Ramsey's
particular offense. United States v. Reyes-Castro, 13 F.3d 377,
379 (10th Cir.1993). We do so because the definition of "crime of
violence" requires us to look at whether the elements of the
offense include the "use, attempted use, or threatened use of
physical force," or whether the offense, if a felony, involves a
substantial risk of the use of physical force. See id.; United
States v. Rodriguez, 979 F.2d 138, 141 (8th Cir.1992).
September 1990, several months before the effective date of the
amendment, it does not qualify as a "crime of violence" under §
101(43) even if the underlying crime would otherwise constitute a
"crime of violence."
Ramsey was also convicted, however, of attempted lewd
assault in May 1993 based on his conduct in December 1992.
Because both the criminal conduct and the conviction for
this offense took place after the effective date of the 1990
amendment, Ramsey's conviction for attempted lewd assault in
violation of Fla.Stat. §§ 777.04(1) and 800.04(1)
constitutes an "aggravated felony" if the underlying crime
constitutes a "crime of violence" as stated in INA §
101(a)(43)(F).
Ramsey violated Florida Statutes §§ 777.04(1), and 800.04(1),
by attempting a lewd assault on a child under the age of 16.
Section 777.04(1) criminalizes the attempt to commit substantive
offenses. Section 800.04(1) defines the underlying substantive
offense that Ramsey attempted to commit. The section reads, in
relevant part:
A person who:
(1) Handles, fondles, or assaults any child under the age
of 16 years in a lewd, lascivious, or indecent manner;
....
without committing the crime of sexual battery, commits a
felony of the second degree.... Neither the victim's lack of
chastity nor the victim's consent is a defense to the crime
proscribed by this section....
Fla.Stat. § 800.04. Thus, a violation of section 800.04 may be
committed through a variety of acts, such as handling, fondling, or
assaulting a child in a lewd, lascivious, or indecent manner.
Although a violation of § 800.04 might be accomplished without the
use of physical force, we conclude that the offense is a felony
which involves a substantial risk that physical force may be used
against the victim in the course of committing the offense. Two
other circuits have come to the same conclusion in analyzing
similar statutes. See Reyes-Castro, 13 F.3d at 378-79; Rodriguez,
979 F.2d at 140-41. Therefore, we hold that a violation of Florida
Statutes § 800.04(1) is a "crime of violence" as defined in 18
U.S.C. § 16.
We note that Ramsey was not convicted of the substantive
offense, but rather of attempting to commit an act in violation of
§ 800.04(1). However, if a particular substantive crime carries
with it a substantial risk that physical force would be used, it
follows that an attempt to commit such a crime also involves a
substantial risk of physical force. Therefore, we conclude that
the attempt to commit lewd assault, in violation of Florida
Statutes §§ 777.04(1) and 800.04(1), is a felony involving a
substantial risk that physical force may be used against the
victim. Thus, the attempt to commit lewd assault is a "crime of
violence" as defined in 18 U.S.C. § 16, thereby constituting an
aggravated felony under INA § 101(a)(43).5 Consequently, the BIA
did not err in finding Ramsey deportable as an aggravated felon
pursuant to INA § 241(a)(2)(A)(iii).
IV. CONCLUSION
We hold that an attempt to commit a lewd assault in violation
of Florida Statutes §§ 777.04(1) and 800.04(1) is a "crime of
violence" as defined in 18 U.S.C. § 16, which constitutes an
aggravated felony under INA § 101(a)(43). Therefore, we conclude
that the BIA did not err in finding Ramsey deportable as an
aggravated felon pursuant to INA § 241(a)(2)(A)(iii). Moreover, we
hold that the BIA did not abuse its discretion in denying Ramsey's
application for relief from deportation pursuant to INA § 212(c).
AFFIRMED.
5
We note that in 1994, INA § 101(a)(43) was amended to
include in the definition of "aggravated felony" the "attempt or
conspiracy to commit an offense described [in § 101(a)(43) ]."
This amendment, however, does not apply in Ramsey's case because
the amendment only applies to convictions after the enactment of
the amendment. Immigration and Nationality Technical Corrections
Act of 1994, Pub.L. No. 103-416, § 222, 108 Stat. 4305, 4320
(1994). Although the amendment does not apply to Ramsey's 1993
conviction, Ramsey's conviction is still an aggravated felony
because attempted lewd assault is a "crime of violence."