CA11 Holds That Florida Conviction for Lewd and Lascivious Battery Was Not an Aggravated Felony
Applying the categorical approach, and building on the Supreme Court’s analysis in Esquivel-Quintana v. Sessions, the court held that the petitioner’s 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—did not constitute the sexual abuse of a minor, and was thus not an aggravated felony under the INA. The court reasoned that the least culpable conduct under §800.04(4) was consensual sexual activity between adolescents who are 12 to 15 years old, with no minimum age required for the perpetrator, and that the statute thus swept more broadly than the generic federal definition of “sexual abuse of a minor,” which in the statutory rape context requires an age difference of at least one year between the perpetrator and the victim. The court thus vacated the BIA’s affirmance of the IJ’s termination of the petitioner’s asylee status, and remanded for further proceedings. (Leger v. Att’y Gen., 5/20/24)