              Case: 19-12963    Date Filed: 04/27/2020   Page: 1 of 7



                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-12963
                            Non-Argument Calendar
                          ________________________

                           Agency No. A030-905-960



ALICIA ALONSO,

                                                                         Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.
                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________

                                 (April 27, 2020)

Before WILSON, NEWSOM and BRANCH, Circuit Judges.

PER CURIAM:

      Alicia Alonso seeks review of the final order of the Board of Immigration

Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of her application for
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waiver of inadmissibility, which she filed in conjunction with her application for

adjustment of status under the Cuban Adjustment Act of 1966 (CAA), Pub. L. No.

89-732, 80 Stat. 1161. On appeal, Alonso makes two arguments. First, she argues

that her 2002 Florida conviction for attempted first-degree murder with a deadly

weapon, pursuant to Fla. Stat. §§ 782.04(1), 777.04(1), and 775.087, does not

render her ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h)

because Florida’s first-degree murder statute is broader than the generic definition

of murder applicable to § 1182(h). Second, she argues for the first time on appeal

that she is eligible for a § 1182(h) waiver because she previously received a waiver

under 8 U.S.C. § 1182(d)(3). After careful review of the record, we deny Alonso’s

petition on the first ground and dismiss her petition on the second ground.

                                                  I

          Under the CAA, an alien who is a native or citizen of Cuba can, in certain

circumstances, apply to adjust her status to that of a lawful permanent resident.

See CAA § 1. 1 Specifically, the CAA provides that:

          [T]he status of any alien who is a native or citizen of Cuba and who
          has been inspected and admitted or paroled into the United States
          subsequent to January 1, 1959 and has been physically present in the
          United States for at least two years, may be adjusted by the Attorney
          General, in his discretion and under such regulations as he may
          prescribe, to that of an alien lawfully admitted for permanent
          residence if the alien makes an application for such adjustment, and


1
    The CAA is codified as a historical note to 8 U.S.C. § 1255.
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      the alien is eligible to receive an immigrant visa and is admissible to
      the United States for permanent residence.

Id. Thus, in order to be eligible for CAA relief, the foreign national must be

“admissible to the United States for permanent residence.” Id. If, like Alonso, the

foreign national seeking adjustment has been deemed inadmissible, she can seek a

waiver of inadmissibility under 8 U.S.C. § 1182(h), which allows the Attorney

General to waive inadmissibility in certain circumstances. Importantly, though, the

Attorney General may not waive inadmissibility “in the case of an alien who has

been convicted of . . . murder or . . . an attempt or conspiracy to commit murder.”

8 U.S.C. § 1182(h).

      The IJ denied Alonso’s application for a waiver of inadmissibility under

§ 1182(h), holding that her 2002 conviction for attempted murder under Fla. Stat.

§ 782.04(1) statutorily precludes her from a § 1182(h) waiver. The BIA affirmed.

On appeal, Alonso contends that the BIA erred, arguing that because she could

have been convicted under Fla. Stat. § 782.04(1)’s felony murder provision—

which does not require proof of an intent to kill—her conviction does not qualify

as attempted “murder” under § 1182(h).

      First things first: we need to examine the meaning of the generic term

“murder,” as it’s used in § 1182(h). “We review the BIA’s statutory interpretation

de novo, but will defer to the BIA’s interpretation of a statute if it is reasonable and

does not contradict the clear intent of Congress.” Quinchia v. U.S. Att’y Gen., 552
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F.3d 1255, 1258 (11th Cir. 2008) (quotation omitted); see also Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984). Here, the BIA

relied on its previous decision in Matter of M-W-, in which it held that the term

“murder”—as it is used in the Immigration and Nationality Act (INA)—involves

an unlawful killing with “malice aforethought,” which includes an “intent to kill”

or a “depraved heart.” 25 I. & N. Dec. 748, 751–53 (B.I.A. 2012). Alonso does

not challenge this interpretation.

      The question becomes, then, whether Alonso’s conviction under Fla. Stat.

§ 782.04(1) qualifies as an attempted “murder” under the definition set out in

Matter of M-W-. To determine “whether [an] alien’s state conviction is of an

offense comparable to an offense listed in the INA,” we employ either the

“categorical” or “modified categorical” approach. Francisco v. U.S. Att’y Gen.,

884 F.3d 1120, 1126 (11th Cir. 2018) (internal quotation marks and citation

omitted). “Under the categorical approach, a court must confine its consideration

only to the fact of conviction and the statutory definition of the offense.” Donawa

v. U.S. Att’y Gen., 735 F.3d 1275, 1280 (11th Cir. 2013). We compare the

elements of the offense to the generic definition, “ask[ing] only whether the state

statute defining the crime of conviction categorically fits within the generic federal

definition of a corresponding [offense].” Id. (quotation omitted). In doing so, we

“presume that the conviction rested upon nothing more than the least of the acts


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criminalized [by the state statute], and then determine whether even those acts are

encompassed by the generic federal offense.” Id. (internal quotation marks and

citation omitted).

      We may, alternatively, apply the modified categorical approach if the statute

of conviction is divisible. Spaho v. U.S. Att’y Gen., 837 F.3d 1172, 1176–77 (11th

Cir. 2016). “A state statute is divisible when it lists a number of alternative

elements that effectively create several different crimes.” Id. at 1177 (internal

quotation marks and citation omitted). A statute is indivisible, by contrast, if it

“contains a single set of elements that are not set forth in the alternative.” Id.

When we use the modified categorical approach, we “may consult a limited class

of documents, such as indictments and jury instructions, to determine which

alternative formed the basis of the defendant’s prior conviction.” Id. (internal

quotation marks and citation omitted).

      Section 782.04 of the Florida Statutes, as it existed in 2002, defined

first-degree murder as:

      [T]he unlawful killing of a human being:

             1. When perpetrated from a premeditated design to effect the
             death of the person killed or any human being;

             2. When committed by a person engaged in the perpetration of,
             or in the attempt to perpetrate, any [of a list of offenses]; or

             3. Which resulted from the unlawful distribution of any [of a
             list of substances] by a person 18 years of age or older, when
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             such drug is proven to be the proximate cause of the death of
             the user . . . .

Fla. Stat. § 782.04(1)(a) (2002). Alonso argues that we should apply the

categorical approach and hold that she could have been convicted under

§ 782.04(1)(a)(2)—the statute’s “felony murder” provision, see, e.g., State v.

Sturdivant, 94 So. 3d 434, 436 (Fla. 2012)—which she claims is inconsistent with

the term “murder” in § 1182(h) because it does not require the intent to kill.

      We disagree. Like the IJ and the BIA below, we believe the modified

categorical approach is appropriate here: Although premeditated and felony

murder reside in the same statute, the crimes of attempted premeditated murder

(codified in Fla. Stat. §§ 782.04 and 777.04) and attempted felony murder

(codified in Fla. Stat. § 782.051) are separate crimes with distinct elements. And

it’s clear, when we apply the modified categorical approach, that Alonso was

charged and convicted of attempted premeditated murder. The Information filed

against Alonso alleged, in Count 1, that she “feloniously attempt[ed] to kill a

human being . . . from a premeditated design”—a count to which Alonso

subsequently pleaded guilty. Under Florida law, the element of “premeditated

design” requires both a specific intent to kill and premeditation. Reaves v. Sec’y,

Fla. Dep’t of Corr., 717 F.3d 886, 889 (11th Cir. 2013) (citing Anderson v. State,

276 So. 2d 17, 18 (Fla. 1973)). The BIA correctly determined, therefore, that

Alonso was ineligible for a waiver of inadmissibility because, using the modified
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categorical approach, it’s clear that she was charged and convicted of attempted

premeditated murder under Florida law—the elements of which match the BIA’s

generic definition of murder. Accordingly, we deny Alonso’s petition for review

on this ground.

                                         II

      Alonso also argues, separately, that it was improper to reject her application

for a waiver of inadmissibility under 8 U.S.C. § 1182(h), given that she had

previously been granted a waiver under § 1182(d)(3). Alonso did not present this

claim before the BIA, however, and we therefore lack jurisdiction to consider it.

Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003). Accordingly, we dismiss

Alonso’s petition for review on this ground.

      PETITION DENIED IN PART AND DISMISSED IN PART.




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