Francisco Fajardo-Rebollar v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10390
Non-Argument Calendar
____________________
FRANCISCO FAJARDO-REBOLLAR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A200-954-204
____________________
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2 Opinion of the Court 21-10390
Before J ORDAN, LAGOA , and BRASHER , Circuit Judges.
PER CURIAM:
Francisco Fajardo-Rebollar, a native and citizen of Mexico,
seeks review of the BIA’s order affirming the IJ’s finding that he was
ineligible for cancellation of removal under INA § 240A(b)(1)(C), 8
U.S.C. § 1229b(b)(1)(C). Mr. Fajardo argues that the BIA erred in
affirming the denial of his application by finding that he had not
established 10 years of continuous physical presence in the United
States. Because his Georgia conviction for pandering under
O.C.G.A. § 16-6-12 was a crime involving moral turpitude
(“CIMT”) that rendered him ineligible for cancellation of removal,
we affirm on that ground.
As background, Mr. Fajardo entered the United States with-
out inspection at or near Nogales, Arizona, on August 1, 1999. In
April of 2006, he pleaded
nolo contendere in Georgia to pander-
ing—that is, solicitation of prostitution—and received a sentence
of 12 months’ probation.
See O.C.G.A. § 16-6-12. In August of
2011, DHS served him with an NTA, charging him as removable
under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being
present in the United States without having been admitted or pa-
roled. The NTA lacked a time and place to appear.
Mr. Fajardo admitted to the factual allegations in the NTA
and conceded the charge of removability but filed an amended ap-
plication for cancellation of removal and adjustment of status for
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21-10390 Opinion of the Court 3
certain non-permanent resident aliens. In his application, he al-
leged that he had resided in the United States since August 27, 1999,
but left on June 1, 2003, and returned without inspection on March
1, 2004.
The IJ entered an oral order pretermitting the application for
cancellation of removal because Mr. Fajardo failed to establish ten
years of continuous physical presence within the United States be-
tween March 1, 2004, and when he was served the NTA, on August
31, 2011. Alternatively, the IJ found that his Georgia pandering
conviction was a CIMT that rendered him ineligible for cancella-
tion of removal.
The BIA affirmed the IJ’s order, dismissing Mr. Fajardo’s ap-
peal. As to his pandering conviction, specifically, it concluded that
Georgia’s pandering statute was not categorically overbroad and,
thus, it was bound by BIA precedent and that of several other cir-
cuits concluding that solicitation of prostitution is a CIMT.
We review only the decision of the BIA, except to the extent
that the BIA expressly adopts the IJ’s decision.
See Flores-Pana-
meno v. U.S. Att’y Gen., 913 F.3d 1036, 1040 (11th Cir. 2019). And
we do not reach issues not considered by the BIA.
See Gonzalez v.
U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Whether a pre-
vious conviction qualifies as a CIMT is a legal question that we re-
view
de novo.
See Lauture v. U.S. Att’y Gen., 28 F.4th 1169, 1172
(11th Cir. 2022).
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4 Opinion of the Court 21-10390
As an initial matter, the BIA erred in concluding that the
“stop-time” rule applied to Mr. Fajardo’s case.
See INA §
240A(d)(1), 8 U.S.C. § 1229b(d)(1) (providing that an alien’s period
of continuous physical presence is deemed to end when the non-
citizen is served with an NTA).
See also INA § 240A(b)(1), 8 U.S.C.
§ 1229b(b)(1) (providing that the Attorney General has the discre-
tion to cancel removal if an alien establishes, among other things,
ten years of continuous physical presence in the United States).
Following the BIA’s order, the Supreme Court issued a decision in
Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480-86 (2021), holding that
that the stop-time rule may only be triggered by a single document
that contains all the information required to be in an NTA. Be-
cause DHS did not include the requisite time-and-place infor-
mation in the initial NTA served on Mr. Fajardo, the NTA did not
trigger the stop-time rule to terminate Mr. Fajardo’s continuous
presence in the United States.
See id. at 1480 (stating that the stop-
time rule requires “a” notice, meaning a “single document contain-
ing the required information, not a mishmash of pieces with some
assembly required”). As such, whether the BIA counted from his
March 2004 return or 2006 conviction, Mr. Fajardo established ten
years of continuous physical presence in the United States from
that time until the BIA’s 2021 adjudication.
See INA § 240A(d)(1),
8 U.S.C. § 1229b(d)(1) (providing that the period of continuous
physical presence is stopped when an alien is convicted of a CIMT).
See also Matter of Isidro-Zamorano, 25 I. & N. Dec. 829, 831 (BIA
2012).
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21-10390 Opinion of the Court 5
But Mr. Fajardo’s ten years of continuous physical presence
in the United States does not entitle him to relief if his Georgia pan-
dering conviction is a CIMT. That is because a conviction for a
CIMT renders an alien ineligible for cancellation of removal.
See
INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).
See also Resendiz-
Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1268 (11th Cir. 2004) (a
plea of
nolo contendere is considered a conviction for immigration
purposes if a judge ordered some form of punishment, including
probation). We have defined a CIMT as “[a]n act of baseness, vile-
ness, or depravity in the private and social duties which a man owes
to his fellow men, or to society in general, contrary to the accepted
and customary rule of right and duty between man and man.”
Walker v. U.S. Att’y Gen., 783 F.3d 1226, 1229 (11th Cir. 2015)
(quotation marks omitted & alteration in original). To involve
moral turpitude, a crime requires two essential elements: repre-
hensible conduct and a culpable mental state.
See Zarate v. U.S.
Att’y Gen., 26 F.4th 1196, 1200-01 (11th Cir. 2022).
For statutes that are indivisible, we apply the categorical ap-
proach to determine whether a particular conviction constitutes a
CIMT, looking “to the statutory definition of the crime rather than
the underlying facts of the conviction.”
Cano v. U.S. Atty. Gen.,
709 F.3d 1052, 1053 (11th Cir. 2013). Under that approach, we ask
“whether the least culpable conduct necessary to sustain a convic-
tion under the statute meets the standard of a crime involving
moral turpitude.”
Id. at 1053 n.3 (quotation marks omitted).
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6 Opinion of the Court 21-10390
When Mr. Fajardo was convicted, Georgia defined pander-
ing as follows:
A person commits the offense of pandering when he
or she solicits a person to perform an act of prostitu-
tion in his or her own behalf or in behalf of a third
person or when he or she knowingly assembles per-
sons at a fixed place for the purpose of being solicited
by others to perform an act of prostitution.
O.C.G.A. § 16-6-12. Because the Georgia pandering statute does
not list alternative elements but instead “enumerates various fac-
tual means of committing a single element,” it is indivisible, and
we apply the categorical approach.
See Spaho v. U.S. Att’y Gen.,
837 F.3d 1172, 1177 (11th Cir. 2016) (citing
Mathis v. United States,
579 U.S. 500, 506 (2016)).
A Georgia pandering conviction qualifies as a CIMT because
it necessarily involves an intentional act that was base, vile, and de-
praved. The pandering statute criminalizes the solicitation of pros-
titution on behalf of oneself or another, or knowingly assembling
at a place to be solicited for prostitution.
See O.C.G.A. § 16-6-12.
Put another way, Mr. Fajardo’s conviction involved the seeking
out or provision of “perform[ing] or offer[ing] or consent[ing] to
perform a sexual act, including[,] but not limited to[,] sexual inter-
course or sodomy, for money or other items of value.”
See
O.C.G.A. § 16-6-9 (2001) (defining prostitution at the time of Mr.
Fajardo’s conviction). Pandering, therefore, “always involves sex-
ual exploitation.”
Rohit v. Holder, 670 F.3d 1085, 1090 (9th Cir.
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21-10390 Opinion of the Court 7
2012) (California conviction for solicitation of prostitution was a
CIMT). Such acts are base, vile, and depraved.
See Walker, 783
F.3d at 1229.
See also Reyes v. Lynch, 835 F.3d 556, 560-61 (6th Cir.
2016) (Nevada conviction for solicitation of prostitution was a
CIMT);
Gomez-Gutierrez, 811 F.3d 1053, 1059 (8th Cir. 2016) (Min-
nesota conviction for solicitation of prostitution was a CIMT).
Mr. Fajardo argues that the Georgia pandering statute is
overbroad because the offense “include[s] conduct outside of ‘sex-
ual intercourse.’”
See Appellant’s Brief at 6-7. But he does not pro-
vide any support for this argument. Nor does he provide any fur-
ther explanation.
To the extent that Mr. Fajardo argues that a conviction for
Georgia pandering is not a CIMT because it could encompass so-
licitation of sodomy, he is incorrect. Sodomy is no longer a crime.
See O.C.G.A. § 16-6-2;
Lawrence v. Texas, 539 U.S. 558, 565 (2003).
But
solicitation of sodomy remains a criminal offense under Geor-
gia law.
See O.C.G.A § 16-6-15. And although sodomy does not
involve “sexual intercourse” as the term is defined under Georgia
law, sodomy is still a “sexual act.”
See O.C.G.A. § 16-6-2(a)(1). The
solicitation of that act therefore raises the same concerns of exploi-
tation as prostitution involving “sexual intercourse.”
Mr. Fajardo also may be arguing that Georgia’s pandering
statute criminalizes conduct that would not be considered prosti-
tution under the INA.
See INA § 212, 8 U.S.C. § 1182(a)(2)(D)(i);
Matter of Gonzalez-Zoquiapan, 241 I. & N. Dec. 549, 553 (BIA
2008). Mr. Fajardo, however, is not being removed under § 1182
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8 Opinion of the Court 21-10390
because of the INA’s prohibition on prostitution. He is being re-
moved for entering the country without being admitted or paroled
and his application for cancellation of removal was pretermitted
under § 1229b because he committed a CIMT, and a CIMT does
not have to meet the INA’s definition of prostitution to constitute
a CIMT.
See Rohit, 670 F.3d at 1091 (citing
Gonzalez-Zoquiapan,
241 I. & N. Dec. at 554). Consequently, Mr. Fajardo cannot show
that the BIA erred in affirming the denial of his application for can-
cellation of removal.
PETITION DENIED.
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