Jean Bernard Gelin v. U.S. Attorney General

837 F.3d 1236, 2016 U.S. App. LEXIS 17296, 2016 WL 5219863
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 22, 2016
Docket15-12497
StatusPublished
Cited by26 cases

This text of 837 F.3d 1236 (Jean Bernard Gelin v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jean Bernard Gelin v. U.S. Attorney General, 837 F.3d 1236, 2016 U.S. App. LEXIS 17296, 2016 WL 5219863 (11th Cir. 2016).

Opinions

HULL, Circuit Judge:

Jean Bernard Gelin, a native and citizen of Haiti, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“U”) order finding him ineligible for relief from removal based on his criminal conviction for abuse of an elderly person or disabled adult under Florida Statute § 825.102(1). After review and oral argument, we conclude the BIA did not err in finding that Gelin is an illegal, criminal alien and that his criminal conviction constitutes a crime involving moral turpitude (“CIMT”). Accordingly, we dismiss the petition.

I. BACKGROUND

In March 1992, Gelin entered the United States illegally. In 2002, Gelin pled guilty in Florida state court to one count of abuse of an elderly person or disabled adult, in violation of Florida Statute § 825.102(1). On December 6, 2011, the Department of Homeland Security (“DHS”) denied Gelin’s application for Temporary Protected Status due to his 2002 felony conviction.

That same day, DHS issued a Notice to Appear, charging Gelin with removability [1238]*1238■because: (1) he was an alien present in the United States without being admitted or paroled, under Immigration and Nationality Act (“INA”) § 212(a)(6)(A)®, 8 U.S.C. § 1182(a)(6)(A)®; and (2) he was an alien convicted of a CIMT, under INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I). Gelin conceded his re-movability as an alien illegally present in the United States. Gelin’s removability is based on an uncontested non-criminal ground of illegal entry into the United States.

Whether Gelin’s conviction is a crime involving moral turpitude is relevant to whether he can show eligibility for discretionary relief from removal in the form of cancellation of removal. This form of relief permits the Attorney General to cancel the removal of certain non-permanent residents if the alien establishes that he has not been convicted of certain criminal.offenses, namely those under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2) and 1227(a)(3). See 8 U.S.C. § 1229b(b)(l)(C). Relevant to this case, 8 U.S.C. § 1227(a)(2) describes a certain type of criminal case — a conviction for a crime involving moral turpitude for which a sentence of one year or longer may be imposed. 8 U.S.C. § 1227(a)(2)(A)®.

A. The IJ’s Decision

On January 22, 2014, the IJ ordered that Gelin be removed from the United States, finding that (a) Gelin was convicted of abuse of an elderly person or disabled adult, in violation of Florida Statute §. 825.102(1); and (b) this conviction was categorically a CIMT because the conviction records established that Gelin “knowingly, willfully and intentionally inflicted injury upon an elderly person or disabled adult, or that he intentionally committed an act or actively encouraged another person to commit such an act.”

B. The BIA’s Decision

On May 7, 2015, the BIA dismissed Ge-lin’s appeal. The BIA stated that Gelin “conceded removability under section 212(a)(6)(A)® of the Act, 8 U.S.C. § 1182(a)(6)(A)®, and thus the only issue on appeal is whether the respondent [Ge-lin] qualifies for relief from removal.” The BIA then determined that Gelin did not qualify for relief from removal because his conviction under Florida Statute § 825.102(1) categorically qualified as a CIMT.

The BIA stated that: “To determine whether a crime qualifies as a CIMT in cases arising within the Eleventh Circuit, we apply the traditional ‘categorical approach,’ under which we focus upon the statutory definition of the crime rather than the facts underlying the particular offense. Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1305 (11th Cir. 2011).” The BIA explained that “[t]he categorical approach requires that ‘we analyze whether the least culpable conduct necessary to sustain a conviction under the statute meets the standard of a crime involving moral turpitude.’ Cano v. U.S. Att’y Gen., [709 F.3d 1052, 1053 n.3 (11th Cir. 2013)] (quoting Keungne v. U.S. Att’y Gen., 561 F.3d 1281, 1284 n.3 (11th Cir. 2009)).”

Quoting from the statute, the BIA stated “that a person [is] guilty of abuse of an elderly or disabled adult” when:

A person who knowingly or willfully abuses an elderly [person] or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or 's. 775.084.

The BIA then concluded that “[u]nder this statute, the State must prove the defendant knowingly or willfully committed one [1239]*1239of the three alternatives and that at the time the victim was an elderly person or disabled adult.” The BIA quoted the three alternative definitions of “abuse” in § 825.102(1) as follows:

(1) intentional infliction of physical or psychological injury upon an elderly person or disabled adult;
(2) an intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or
(3) active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.

The BIA concluded that the statute categorically qualified as a CIMT based on the “mental state required for a conviction” under any of the three subparts of the statute.

The BIA rejected Gelin’s argument that his conviction was not categorically a CIMT because he did not know that the victim was a member of a “protected class.” The BIA noted that the statute defined an “elderly person” as one manifestly “suffering from the infirmities of aging and physical or mental dysfunction to the extent that personal care or protection is impaired.” Second, the BIA determined that Florida case law prohibited conviction under the statute if the victim was “active and self-sufficient,” citing Watson v. State, 95 So.3d 977, 979-80, 982 (Fla. 2nd DCA 2012).1

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Bluebook (online)
837 F.3d 1236, 2016 U.S. App. LEXIS 17296, 2016 WL 5219863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jean-bernard-gelin-v-us-attorney-general-ca11-2016.