Ariel Marcelo Bastias v. U.S. Attorney General

USCA11 Case: 21-11416 Date Filed: 08/02/2022 Page: 1 of 23 [PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-11416 ____________________ ARIEL MARCELO BASTIAS, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A074-344-653 ____________________ USCA11 Case: 21-11416 Date Filed: 08/02/2022 Page: 2 of 23 2 Opinion of the Court 21-11416 Before NEWSOM and MARCUS, Circuit Judges, and MIDDLEBROOKS, District Judge. ∗ NEWSOM, Circuit Judge: Ariel Bastias appeals the Board of Immigration Appeals’s judgment that he is removable on the ground that he was con- victed of a “crime of child abuse, child neglect, or child abandon- ment” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). The par- ties agree that the least culpable conduct criminalized by the Flor- ida statute under which Bastias was convicted—culpably negligent child neglect—fits within the BIA’s expansive interpretation of § 1227(a)(2)(E)(i). The question, then, is whether the BIA’s reading of that provision is permissible inasmuch as it covers Bastias’s of- fense. Because this Court has already decided that § 1227(a)(2)(E)(i) is ambiguous at Chevron step one, because we are bound by that decision, and because the BIA’s definition is a reasonable interpretation of the statute, we affirm. I In October 2019, Ariel Bastias, a lawful permanent resident of the United States, pleaded guilty to and was convicted of an of- fense under Fla. Stat. § 827.03(2), which is titled “Abuse, aggravated abuse, and neglect of a child.” That statute delineates four distinct offenses, listed under subsections (2)(a) through (2)(d). Those ∗ Honorable Donald M. Middlebrooks, United States District Judge for the Southern District of Florida, sitting by designation. USCA11 Case: 21-11416 Date Filed: 08/02/2022 Page: 3 of 23 21-11416 Opinion of the Court 3 offenses range in seriousness from the first-degree felony of “aggra- vated child abuse,” Fla. Stat. § 827.03(2)(a), to the third-degree fel- ony of “willfully or by culpable negligence neglect[ing] a child with- out causing great bodily harm, permanent disability, or permanent disfigurement,” id. § 827.03(2)(d). It’s unclear from the record to which of § 827.03(2)’s several offenses Bastias pleaded guilty: The information charged him with first-degree felony aggravated child abuse. The judgment lists “ag- gravated child abuse,” but it describes that crime as a second-de- gree felony and cites only § “827.03(2)” generally. The sentencing score sheet describes Bastias’s offense as “child neglect,” a third-de- gree felony, and cites—even more unhelpfully—just § “827.03.” And the transcript of Bastias’s plea colloquy is hopelessly opaque: The judge stated that he “w[ould] adjudicate [Bastias] guilty of [the] charge of aggravated child—nope, of child neglect—child abuse, child neglect, a felony of the third degree so it’s a lesser included offense of what [he] was originally charged with.” When the clerk asked for the statute number, the judge said, “Oh, I don’t know,” one of the lawyers suggested “827,” and the judge responded, “Whatever.” After Bastias’s conviction—for “[w]hatever”—the Depart- ment of Homeland Security served him with a notice …

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