Woff Senatus v. U.S. Attorney General

FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10514
____________________
WOFF SENATUS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A070-798-575
____________________
Before R OSENBAUM , BRANCH, and GRANT, Circuit Judges.
B RANCH, Circuit Judge:
Woff Senatus was a lawful permanent resident of the United
States, but he was removed to Haiti after he was convicted in
Florida of aggravated assault with a deadly weapon. He now
petitions this Court to review the Board of Immigration Appeals’s
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2 Opinion of the Court 24-10514
decision not to reopen his proceedings, arguing that his Florida
conviction does not qualify as a “crime of violence” under the
relevant statutory removal provision, so his conviction cannot
serve as a predicate for his removal. Our precedent, however,
forecloses this argument, and we thus deny Senatus’s petition for
review.1
I. Background
The facts relevant to this petition are not in dispute. Woff
Senatus was a native and citizen of Haiti who became a lawful
permanent resident of the United States in 2002. In 2021, Senatus
was convicted of aggravated assault with a firearm in violation of
Florida Statute § 784.021(1)(a) and sentenced to 14 months’
imprisonment and three years of probation. Following that
conviction, the Department of Homeland Security (DHS)
commenced removal proceedings against Senatus due to his
conviction for an aggravated felony that was a crime of violence,
according to the relevant provisions of the Immigration and
Nationality Act (INA).2 Senatus, represented by counsel, conceded
1 The government filed a motion to dismiss the petition as untimely because
Senatus filed his petition for review outside the 30-day deadline set forth in 8
U.S.C. § 1252(b)(1). Senatus urged us to equitably toll the 30-day filing
deadline and consider his petition on the merits. We carried the motion to
dismiss with the case. Because Senatus’s petition fails on the merits, we do
not reach the question of whether equitable tolling is available for the 30-day
filing deadline in § 1252(b)(1), and we deny the government’s motion to
dismiss as moot.
2 “Any alien who is convicted of an aggravated felony at any time after
admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The definition of an
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24-10514 Opinion of the Court 3
his removability at a hearing before an Immigration Judge (IJ), and
the IJ designated Haiti as Senatus’s country of removal. Senatus
proceeded with an application for asylum and withholding of
removal, but his application was denied. He then appealed this
denial to the Board of Immigration Appeals (BIA), and the BIA
affirmed the IJ’s removal decision.
Shortly thereafter, Senatus filed two pro se motions with the
BIA: a motion to reopen proceedings and an emergency motion for
stay of removal. In his motion to reopen proceedings, he argued
that his counsel was ineffective for failing to challenge Senatus’s
removability, because the Florida statute under which Senatus had
been convicted allowed convictions with a mens rea of mere
recklessness, while a “crime of violence” for the purpose of
removability required a mens rea of intent. While the motion to
reopen proceedings was pending, the BIA denied Senatus’s motion
for a stay of removal. Senatus asserts that he was deported to Haiti
in or around June 2023.
On January 11, 2024, the BIA denied Senatus’s motion to
reopen proceedings. The BIA determined that Senatus’s
arguments regarding his Florida conviction and the definition of a
“aggravated felony” includes “a crime of violence . . . for which the term of
imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F).
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4 Opinion of the Court 24-10514
“crime of violence” were not persuasive, so he was not prejudiced
by his prior counsel’s alleged deficient performance.3
On February 20, 2024, Senatus filed his petition for review
with this Court.4 We appointed counsel to represent him in this
appeal.
II. Standard of Review
“We review the denial of a motion to reopen removal
proceedings for abuse of discretion.” Rosales-Mendez v. U.S. Att’y
Gen., 104 F.4th 1271, 1274 (11th Cir. 2024). “We review legal
conclusions underlying the denial de novo.” Id.
III. Discussion
Senatus argues that the BIA erred in ordering his removal,
because his Florida conviction for aggravated assault with a deadly
weapon is not a crime of violence for the purposes of removal. But
our previous decisions foreclose his arguments.
“Any alien who is convicted of an aggravated felony at any
time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii).
An “aggravated felony” is defined, in part, as “a crime of violence
3 Senatus had raised in his motion a second ground for reopening proceedings
that the BIA likewise rejected. Senatus does not raise this second argument
on appeal.
4 It is undisputed that Senatus’s petition was filed more than 30 days after the
BIA’s order. See 8 U.S.C. § 1252(b)(1) (providing that a petition for review of
an order of removal must be filed “not later than 30 days after the date of the
final order of removal”).
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24-10514 Opinion of the Court 5
(as defined in section 16 of Title 18, but not including a purely
political offense) for which the term of imprisonment [is] at least
one year.” 8 U.S.C. § 1101(a)(43)(F). Section 16 of Title 18 of the
U.S. Code, in turn, provides,
The term “crime of violence” means—
(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. So an alien may be deported based on his state or
federal conviction for a “crime of violence.”
When considering whether a state conviction qualifies as a
“crime of violence” allowing for removal, “we generally employ a
‘categorical approach’ to determine whether the state offense is
comparable to an offense listed in the INA” (such as a “crime of
violence”). Moncrieffe v. Holder, 569 U.S. 184, 190 (2013).
Under this approach we look not to the facts of the
particular prior case, but instead to whether the state
statute defining the crime of conviction categorically
fits within the “generic” federal definition of a
corresponding aggravated felony. . . . [A] state
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offense is a categorical match with a generic federal
offense only if a conviction of the state offense
necessarily involved facts equating to the generic
federal offense. Whether the noncitizen’s actual
conduct involved such facts is quite irrelevant.
Id. (alterations adopted) (quotations and citations omitted). If the
state offense is comparable to the generic federal offense, then it
qualifies as a ground for the offender’s removal. Id. If, however,
the offender can show “a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that
falls outside” what the generic federal offense requires, then he
may not be removed based on that offense. Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007).
In this case, the question is whether the Florida aggravated
assault offense of which Senatus was convicted allows for a lower
standard of mens rea than does the generic federal offense. In
Borden v. United States, the Supreme Court determined that a
criminal offense with the mens rea of mere recklessness does not
qualify as a violent felony under the ACCA—a statute to which we
also apply the categorical rule. 593 U.S. 420, 445 (2021) (plurality
opinion); see id. at 445 (Thomas, J., concurring in the judgment)
(agreeing that the provision of the ACCA at issue does not
encompass “reckless aggravated assault”); Somers v. United States,
66 F.4th 890, 895 (11th Cir. 2023) (Somers III) (identifying the
narrowest holding of the five-justice majority in Borden). Borden
itself pointed to the Supreme Court’s decision in Leocal v. Ashcroft,
where the Court determined mere negligence could not provide
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24-10514 Opinion of the Court 7
the mens rea for a crime of violence under 18 U.S.C. § 16 (reserving
the question of whether recklessness might suffice). Leocal v.
Ashcroft, 543 U.S. 1, 13 (2004). And we have determined that 18
U.S.C. § 16’s definition of a “crime of violence” is “virtually
identical” to the Armed Career Criminal Act’s (ACCA) definition
of a “violent felony,” so “decisions interpreting those definitions
apply interchangeably.” Lukaj v. U.S. Att’y Gen., 953 F.3d 1305, 1312
(11th Cir. 2020), overruled in part on other grounds by Santos-Zacaria
v. Garland, 598 U.S. 411 (2023). So, for our purposes—and the
parties agree—the generic federal offense of a “crime of violence”
under 18 U.S.C. § 16 must have a mens rea of more than
recklessness.
We must therefore consider whether the state crime of
which Senatus was convicted also requires a mens rea of more than
recklessness. In 2021, Senatus was convicted of violating Florida
Statute § 784.021(1)(a) (“An ‘aggravated assault’ is an assault[]
[w]ith a deadly weapon without intent to kill . . . .”) and was
sentenced to 14 months’ imprisonment and three years of
probation. Senatus contends that at the time of his conviction,
Florida courts allowed defendants to be convicted under
§ 784.021(1)(a) for mere recklessness, and he identifies at least one
case where such a conviction was affirmed. See Kelly v. State, 552
So. 2d 206, 208 (Fla. 5th DCA 1989) (recognizing that there was “no
proof of an intentional assault” but noting that the conviction could
be sustained with “culpable negligence” or “willful and reckless
disregard”). Under the categorical approach, then, he asserts that
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8 Opinion of the Court 24-10514
his Florida conviction is not a crime of violence allowing for his
removal.
But our precedent forecloses Senatus’s argument. In Somers
v. United States, we considered, in the ACCA context, whether
conduct involving mere recklessness would violate Florida Statute
§ 784.021(1)(a). 15 F.4th 1049, 1054 (11th Cir. 2021) (Somers I). We
pointed to several decisions from Florida’s intermediate appellate
courts that seemed to confirm that specific intent was an element
of this crime, but we noted that at least two decisions in the Fifth
District Court of Appeal—including Kelly, cited above—had
affirmed convictions without finding such intent. Id. at 1054–55.
Given the split, we certified two questions to the Florida Supreme
Court regarding the mens rea required under Florida Statute
§ 784.021(1). Id. at 1056. The Florida Supreme Court responded
that the provision could not “be accomplished via a reckless act”;
“at least knowing conduct” was required. Somers v. United States,
355 So. 3d 887, 892 (Fla. 2022) (Somers II). Based on this
explanation, we held that “aggravated assault under Florida law
categorically qualifies as a ‘violent felony’” under the ACCA.
Somers III, 66 F.4th at 896.
As previously noted, we apply decisions interpreting
“violent felony” under the ACCA and “crime of violence” under 18
U.S.C. § 16 “interchangeably.” Lukaj, 953 F.3d at 1312. Thus, our
caselaw instructs that aggravated assault pursuant to Florida
Statute § 784.021(1)(a) qualifies as a violent felony, making
Senatus’s removal proper.
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24-10514 Opinion of the Court 9
Senatus raises two arguments resisting the application of the
Somers cases to his petition. First, he contends that Somers III does
not control our decision in this case, because the ACCA standard
for showing that a state would apply its statute to conduct falling
outside the generic federal offense is different than Gonzales’s
“realistic probability” standard for the same inquiry in the context
of the INA. See Gonzales, 549 U.S. at 193 (observing, in the INA
context, that under the categorical approach, an offender must
show “a realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside” what the
generic federal offense requires). But, again, we often analyze
ACCA provisions and removability provisions in tandem. This
practice extends beyond parallel interpretations of “crime of
violence” and “violent felony”; we have recognized that “[t]he
general analytical framework and principles” of the ACCA and the
immigration context “are analogous, and so this Court has
routinely imported holdings from one context to the other.”
Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1280 n.3 (11th Cir. 2013).
In fact, we have applied the “realistic probability” language from
Gonzales (on which Senatus relies) in the context of an ACCA
enhancement. See United States v. White, 837 F.3d 1225, 1230 (11th
Cir. 2016). So just as decisions interpreting the terms “crime of
violence” and “violent felony” “apply interchangeably,” Lukaj, 953
F.3d at 1312, we recognize that when the categorical approach
applies (as it does here), it works the same way in the immigration
context as it does under the ACCA. See, e.g., White, 837 F.3d at
1230. Thus Senatus’s first argument fails.
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10 Opinion of the Court 24-10514
Second, Senatus argues that Somers II was decided after his
conviction in 2021, so that decision indicates only how the relevant
Florida statute would be interpreted going forward; because
Florida courts allowed convictions based on recklessness before
Somers II, the categorical approach excludes his own conviction.5
But the Somers III Court anticipated this argument and specified
that “[w]hen the Florida Supreme Court interprets a statute, it tells
us what that statute always meant.” Somers III, 66 F.4th at 896
(quotations omitted). In other words, Senatus “cannot rely on
earlier decisions of Florida’s intermediate courts of appeal to avoid
this clear holding.” Id.; see also United States v. Gary, 74 F.4th 1332,
1334–36 (11th Cir. 2023) (applying Somers II and III to find that a
5 The government contends that Senatus failed to exhaust this argument
because he did not “raise[] this issue before the [BIA] in his motion to reopen
as required by 8 U.S.C. § 1252(d)(1).” But § 1252(d)(1)’s exhaustion
requirement “is not a stringent requirement.” Indrawati v. U.S. Att’y Gen., 779
F.3d 1284, 1297 (11th Cir. 2015), overruled in part on other grounds by Santos-
Zacaria, 598 U.S. 411. A petitioner “must have previously argued the core
issue now on appeal before the BIA,” but he need not “use precise legal
terminology or provide a well-developed argument to support [his] claim.” Id.
(alterations adopted) (quotations omitted); see also Kemokai v. U.S. Att’y Gen.,
83 F.4th 886, 891 (11th Cir. 2023) (finding that an alien challenging removal
had exhausted “the same core argument” he now raised that the state law
under which he had been convicted was broader than the generic federal
crime). Senatus clearly argued the core issue in his motion to reopen: that his
conviction should not be considered a “crime of violence” for the purposes of
removal because he could point to a case where the Florida statute under
which he was convicted had been applied with a mens rea of recklessness.
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24-10514 Opinion of the Court 11
defendant’s pre-Somers 2016 conviction qualified him for an ACCA
enhancement).
Senatus argues that changes in Florida law, such as the one
the Florida Supreme Court announced (or clarified) in Somers II, do
not apply retroactively unless they satisfy a three-part test, and
since the Somers III Court did not perform that analysis, it could not
legitimately determine that the law applied retroactively. But
regardless of whether Florida courts would treat Somers II as
retroactive, we are bound by our own decision that a conviction
under Florida Statute § 784.021(1)(a) requires more than
recklessness for the purposes of the categorical approach to a
“crime of violence” or a “violent felony,” even for convictions
preceding Somers II. See Somers III, 66 F.4th at 896.6
6 Senatus makes one more attempt to resist this conclusion, arguing that we
should adopt the approach taken by the Seventh Circuit in United States v.
Anderson, 99 F.4th 1106 (7th Cir. 2024). The Anderson court considered the
same Florida aggravated assault statute, but it concluded that it should “look
to the law at the time of the offense” rather than to a later change in law
announced by the Florida Supreme Court. Id. at 1111. Because the Florida
Supreme Court did not explicitly make its Somers II decision retroactive, the
Seventh Circuit reviewed the various Florida appellate court decisions from
before the defendant’s Florida conviction and determined that, “based on
those conflicting decisions, there was a realistic probability that courts would
punish conduct that included recklessness.” Id. at 1112. Thus, the Seventh
Circuit concluded that the government could not rely on the defendant’s
Florida conviction as an ACCA predicate. Id. at 1113.
Senatus argues that we should take the same approach here. However,
Anderson does not guide our decision—Somers does. See Morrison v. Amway
Corp., 323 F.3d 920, 929 (11th Cir. 2003) (“A prior panel decision of this Court
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12 Opinion of the Court 24-10514
We thus conclude that Senatus’s Florida conviction qualifies
as a “crime of violence” under 18 U.S.C. § 16 such that his removal
was proper. The BIA, therefore, did not abuse its discretion when
it denied his petition to reopen.
IV. Conclusion
For these reasons, we DENY Senatus’s petition for review.
is binding on subsequent panels and can be overturned only by the Court
sitting en banc.”).
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