USCA11 Case: 19-13165 Date Filed: 03/17/2022 Page: 1 of 21 [PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 19-13165 ____________________ EMMANUEL LAUTURE, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A072-842-479 ____________________ USCA11 Case: 19-13165 Date Filed: 03/17/2022 Page: 2 of 21 2 Opinion of the Court 19-13165 Before JORDAN, JILL PRYOR, and TJOFLAT, Circuit Judges. JORDAN, Circuit Judge: The Board of Immigration Appeals, affirming the decision of an immigration judge, ruled that Emmanuel Lauture was remove- able from the United States because his Florida conviction for bur- glary of an unoccupied dwelling, see Fla. Stat. § 810.02(3)(b), con- stituted a “crime involving moral turpitude” (a CIMT). Mr. Lau- ture now petitions for review of the BIA’s decision. Following oral argument and a review of the record, we grant Mr. Lauture’s petition, vacate the BIA’s judgment, and re- mand for further proceedings. Florida has applied § 810.02(3)(b) to a dwelling which was not occupied prior to or after the entry, see State v. Bennett, 565 So. 2d 803, 805 (Fla. 2d DCA 1990), and that application impacts whether a violation of § 810.02(3)(b) is a CIMT. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (the ques- tion is whether there is “a realistic probability, not a theoretical pos- sibility, that the State would apply its statute to conduct that falls outside the generic definition” of a “listed crime in a federal stat- ute”). Neither the IJ nor the BIA, however, addressed Mr. Lau- ture’s argument about the impact of Bennett. The BIA must do so on remand. I Mr. Lauture was paroled into the United States in 2005 and became a lawful permanent resident in 2007. On July 13, 2010, he pled guilty to burglary of an unoccupied dwelling in violation of USCA11 Case: 19-13165 Date Filed: 03/17/2022 Page: 3 of 21 19-13165 Opinion of the Court 3 Fla. Stat. § 810.02(3)(b). He was originally sentenced to probation but later violated the terms of his probation and received a sen- tence of 40 months’ imprisonment. In 2018, the Department of Homeland Security served Mr. Lauture with a notice to appear, charging him with being subject to removal from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(i), for having been convicted of a CIMT within five years of his admission. DHS initiated removal proceedings against Mr. Lauture, and he responded by filing a motion to terminate. He argued that his conviction for burglary of an unoccupied dwelling was not a CIMT. In part, he cited Bennett, 565 So. 2d 803, for the proposition that a defendant “may be convicted of burglary to a dwelling for entering an unsold and unoccupied mobile home sit- ting on a sales lot.” A.R. at 159. The DHS opposed the motion to terminate. The IJ denied Mr. Lauture’s motion to terminate and or- dered Mr. Lauture removed. She concluded that Florida’s burglary statute was divisible …
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