             Case: 17-15186    Date Filed: 12/17/2018   Page: 1 of 13


                                                         [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-15186
                          ________________________

                           Agency No. A204-650-556



FABIAN CAMILO MESA PELAEZ,

                                                               Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                Respondent.

                          ________________________

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

                              (December 17, 2018)

Before MARTIN, JILL PRYOR, and JULIE CARNES, Circuit Judges.

MARTIN, Circuit Judge:

      Fabian Camilo Mesa Pelaez, a native and citizen of Colombia, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order affirming the
              Case: 17-15186    Date Filed: 12/17/2018    Page: 2 of 13


immigration judge’s (“IJ”) determination he is ineligible for adjustment of status.

After review, and with the benefit of oral argument, we grant his petition and

remand to the agency. On remand, the agency may consider whether it is

appropriate to exercise its discretion to grant Mr. Mesa’s application for

adjustment of status as a form of relief from removal.

                                          I.

      Mr. Mesa entered the United States on February 27, 2000 on a non-

immigrant visa. He continued working in this country after his visa expired and he

eventually moved to Florida, where he met and married a United States citizen in

2012. Mr. Mesa then filed an application to adjust to lawful permanent residence.

At the same time, his wife filed an I-130 Petition for Alien Relative on his behalf

to secure an immigrant visa—otherwise known as a green card.

      The United States Citizenship and Immigration Services (“USCIS”)

approved the petition. While processing the I-130 petition, however, USCIS

discovered an outstanding warrant for Mr. Mesa’s arrest in Connecticut. This

discovery resulted in his arrest by the Orlando Police Department and his

extradition to Connecticut, where he eventually secured a plea deal with the

assistance of counsel.




                                          2
               Case: 17-15186       Date Filed: 12/17/2018       Page: 3 of 13


       On July 1, 2014, 1 Mr. Mesa pled guilty in Connecticut Superior Court to

sexual assault in the fourth degree in violation of Conn. Gen. Stat. § 53a-73a(a)(2).

This statute criminalizes some conduct as a misdemeanor punishable by less than a

year of imprisonment and some conduct as a felony punishable by more than a

year. See Conn. Gen. Stat. § 53a-73a(b). At his plea colloquy, Mr. Mesa admitted

to “subject[ing] another person to sexual contact without that person’s consent.”

The court sentenced him to 179 days.

       The next day, the Department of Homeland Security (“DHS”) served Mr.

Mesa with a Notice to Appear (“NTA”) charging him with removability under 8

U.S.C. § 1227(a)(1)(B) for overstaying his nonimmigrant visa. Mr. Mesa admitted

the factual allegations of the NTA, including the basis for removability, and filed

an I-485 Application to Adjust Status as a form of relief from removal. He put into

evidence copies of his Connecticut record of conviction and a transcript of his plea

colloquy for the sexual assault conviction.

       After considering the record, the IJ found Mr. Mesa was not eligible for

adjustment of status. Because Mr. Mesa did not contest that his conviction for

sexual assault in the fourth degree was a crime involving moral turpitude, the only

question before the IJ was whether Mr. Mesa’s conviction qualified for the petty



       1
          The record does not reveal whether Mr. Mesa was aware of the arrest warrant prior to
his interview with USCIS in 2014.


                                               3
              Case: 17-15186    Date Filed: 12/17/2018    Page: 4 of 13


offense exception to crimes involving moral turpitude, such that he could still

apply for adjustment of status. The IJ found that although Mr. Mesa satisfied two

of the three petty-offense exception’s requirements, he could not satisfy the third:

namely, that he had been convicted of a misdemeanor offense, as opposed to a

felony. As part of this finding, the IJ determined Mr. Mesa’s plea colloquy

transcript and criminal information reflecting his plea could not narrow his

conviction to either felony or misdemeanor sexual assault in the fourth degree

under Connecticut law.

      Mr. Mesa filed a motion to reconsider, which the IJ denied. On November

17, 2016, after withdrawing his motion for a waiver of inadmissibility, Mr. Mesa

once again asked the IJ to adjudicate his application to adjust status. This time, he

submitted into evidence a letter from his defense attorney as well as a printout

from the State of Connecticut Judicial Branch’s website. Both documents plainly

state Mr. Mesa was convicted of misdemeanor sexual assault. The letter reflects

the defense attorney’s “absolute certainty that the understanding of all parties was

that [Mr. Mesa] was pleading guilty to a misdemeanor and he did in fact plead

guilty to a misdemeanor.” The printout similarly notes that Mr. Mesa pled guilty

to “[m]isdemeanor” “Sex 4-Sex Contact W/O ConsentA.”

      Applying the modified categorical approach, the IJ once again found Mr.

Mesa ineligible for adjustment of status. The IJ did not consider evidence of the



                                          4
              Case: 17-15186    Date Filed: 12/17/2018    Page: 5 of 13


printout and letter, because she found the documents insufficiently reliable.

Instead, the IJ adhered to her original view that Mr. Mesa’s plea colloquy transcript

and record of conviction were insufficient to demonstrate he was convicted of the

misdemeanor version of sexual assault in the fourth degree. Based on that

ambiguity, the IJ denied Mr. Mesa’s application for adjustment of status and

ordered him removed to Colombia.

      On appeal to the BIA, Mr. Mesa argued the record established by a

“preponderance of the evidence” that he was convicted of a misdemeanor and not a

felony. He challenged the IJ’s finding that the transcript and record of conviction

were ambiguous as to which offense he was convicted of, and argued that even if

the record was ambiguous, the Supreme Court’s decision in Moncrieffe v. Holder,

569 U.S. 184, 133 S. Ct. 1678 (2013), required the agency to presume his

conviction was for the least of the acts criminalized—here, a misdemeanor offense.

      The BIA was not convinced. In an order dismissing Mr. Mesa’s appeal, the

BIA agreed with the IJ that Conn. Gen. Stat. § 53a-73a was divisible into two

crimes: (1) misdemeanor sexual assault in the fourth degree, which would qualify

for the petty offense exception; and (2) felony sexual assault in the fourth degree,

which would not. Applying the modified categorical approach, the BIA limited its

consideration of the record evidence to the plea colloquy transcript and record of

conviction and found that their inconclusive nature meant Mr. Mesa “did not



                                          5
              Case: 17-15186      Date Filed: 12/17/2018    Page: 6 of 13


demonstrate that his conviction falls under the petty offense exception.” Mr. Mesa

timely petitioned for review.

                                           II.

      We review de novo the legal question of whether a petitioner’s conviction

constitutes a misdemeanor within the meaning of the petty offense exception under

8 U.S.C. § 1182(a)(2)(A)(ii). See Cintron v. U.S. Att’y Gen., 882 F.3d 1380, 1383

(11th Cir. 2018).

                                           III.

      This case concerns a little-used safety valve in removal proceedings: the

petty offense exception. The Immigration and Nationality Act (“INA”) permits

petitioners in removal proceedings to apply for relief from removal. See 8 U.S.C.

§ 1229a(c)(4)(A). This includes adjustment of status, a form of relief that requires

the petitioner to prove (1) he actually applied to adjust status; (2) he is eligible to

receive an immigrant visa and is admissible to the United States for permanent

residence; and (3) there is an immigrant visa immediately available at the time the

application is filed. Id. § 1255(a). Ordinarily, petitioners who have committed

crimes involving moral turpitude (“CIMTs”) are inadmissible to the United States

and therefore ineligible for adjustment of status. Id. § 1182(a)(2)(A)(i)(I). There

exists, however, a limited exception to this blanket ban, which we have termed the

“petty offense” exception.



                                            6
                Case: 17-15186       Date Filed: 12/17/2018       Page: 7 of 13


       The petty offense exception is straightforward. If a petitioner has committed

only one offense, for which the maximum possible penalty “did not exceed

imprisonment for one year,” and was “not sentenced to a term of imprisonment in

excess of 6 months,” he or she has committed only a petty offense and remains

eligible for an immigrant visa and, consequently, adjustment of status. Id.

§ 1182(a)(2)(A)(ii)(II). Neither party to this appeal disputes that Mr. Mesa has

satisfied two of the three factors required to trigger the petty offense exception.2

He has only one conviction, sexual assault in the fourth degree, for which he

received a sentence of 179 days, a term less than six months.

       The sole issued presented here is therefore whether Mr. Mesa has shown that

he was convicted of an offense for which the maximum sentence “did not exceed

imprisonment for one year.” Id. § 1182(a)(2)(A)(ii)(II). To answer this question,

we apply the categorical approach and its modified step. See Moncrieffe, 569 U.S.

at 190, 133 S. Ct. at 1684 (explaining courts “generally employ a ‘categorical

approach’ to determine whether the state offense is comparable to an offense listed

in the INA”); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 187, 127 S. Ct. 815, 819

(2007) (explaining “some courts refer to this step of the Taylor inquiry as a

‘modified categorical approach’”).


       2
         Mr. Mesa does not dispute on appeal his conviction for sexual assault in the fourth
degree is a CIMT that renders him ineligible for adjustment of status absent the petty offense
exception.


                                                7
              Case: 17-15186    Date Filed: 12/17/2018   Page: 8 of 13


      First established by the Supreme Court in 1990, see Taylor v. United States,

495 U.S. 575, 110 S. Ct. 2143 (1990), the categorical approach is a three-step

inquiry that assists a court in determining whether a petitioner or defendant’s

offense of conviction matches a federal generic offense. See United States v.

Estrella, 758 F.3d 1239, 1244–46 (11th Cir. 2014) (explaining the steps). Mr.

Mesa argues that under this approach, it is clear he was convicted of a

misdemeanor offense and therefore qualifies for the petty offense exception. We

agree and address each step in turn.

                                         A.

      To begin, we must determine whether Conn. Gen. Stat. § 53a-73a is

categorically overbroad. See Estrella, 758 F.3d at 1244–45 (explaining the “first

step” is to apply the traditional categorical approach inquiry and determine whether

the elements of the statute of conviction match the federal definition). We easily

conclude it is.

      Section 53a-73a, including subsection (a)(2), of which Mr. Mesa was

convicted, contains both misdemeanor and felony sexual assault in the fourth

degree. Conn. Gen. Stat. § 53a-73a(b). If the victim of nonconsensual sexual

contact is under the age of sixteen, the defendant has committed felony punishable

by up to five years in prison. Id. §§ 53a-73a(b), 53a-35a(8). If, on the other hand,

the victim is over the age of sixteen, the offense is a misdemeanor punishable by



                                          8
              Case: 17-15186    Date Filed: 12/17/2018   Page: 9 of 13


not more than a year in prison. Id. §§ 53a-73a(a)(2), 53-36. It is therefore clear

that section 53a-73a includes both a qualifying offense for the petty offense

exception, the misdemeanor, and a disqualifying offense, the felony.

                                         B.

      Having determined Conn. Gen. Stat. § 53a-73a is categorically overbroad

with respect to the petty offense exception, we must next determine whether the

statute is divisible, such that the modified categorical approach applies. See

Estrella, 758 F.3d at 1245. We conclude it is.

      “A divisible statute is one that ‘sets out one or more elements of the offense

in the alternative.’” Id. (quoting Descamps v. United States, 570 U.S. 254, 257,

133 S. Ct. 2276, 2281 (2013)). Here, the felony version of section 53a-73a

contains an additional element that its misdemeanor counterpart lacks—proof the

victim was under the age of sixteen. Conn. Gen. Stat. § 53a-73a(b); see also State

v. Velasco, 751 A.2d 800, 811 (Conn. 2000) (explaining that, “except in limited

circumstances, the determination of ultimate facts remains the exclusive function

of the jury” for sentencing enhancements); Crim. Jury Instruction Committee,

Conn. Judicial Branch Criminal Jury Instructions 7.1-12 (2018) (“Section 53a-

73a(b) provides an enhanced penalty if the victim is under 16 years of age. The

jury must find this fact proved beyond a reasonable doubt.”). The statute is

therefore divisible.



                                          9
             Case: 17-15186     Date Filed: 12/17/2018   Page: 10 of 13


                                         C.

      Conn. Gen. Stat. § 53a-73a’s divisible nature triggers the third, and last, step

of the categorical approach: the modified categorical approach. See Estrella, 758

F.3d at 1245 (“The Supreme Court has only approved using the modified

categorical approach when a prior conviction is for violating a so-called ‘divisible

statute.’” (quotation marks omitted)). Intended “solely[] as a tool to identify the

elements of the crime of conviction when a statute’s disjunctive phrasing renders

one (or more) of them opaque,” the modified categorical approach permits courts

to consult a limited universe of documents in a bid to narrow the petitioner’s

offense of conviction to either a qualifying or disqualifying offense. Mathis v.

United States, 136 S. Ct. 2243, 2253 (2016). These documents include transcripts

of the petitioner’s plea colloquy, copies of the plea agreement, and other records of

“comparable findings of fact adopted by the [petitioner] upon entering a guilty

plea.” Shepard v. United States, 544 U.S. 13, 20, 125 S. Ct. 1254, 1259–60

(2005).

      We agree with Mr. Mesa that his Shepard documents—here, the record of

conviction reflecting his plea and the transcript of his plea colloquy—

unambiguously demonstrate he was convicted of misdemeanor sexual assault in




                                          10
               Case: 17-15186        Date Filed: 12/17/2018        Page: 11 of 13


the fourth degree.3 We therefore need not address the more complicated question

of what happens when a petitioner’s Shepard documents prove inconclusive and

the modified categorical tool fails to narrow the petitioner’s offense of conviction. 4

See Francisco v. U.S. Att’y Gen., 994 F.3d 1120, 1134 n.37 (11th Cir. 2018)

(leaving open the “issue of whether the Moncrieffe presumption applies in

determining an alien’s eligibility for cancellation of removal when the Shepard

documents are inconclusive as to which crime the alien committed in a divisible

statute”).

       To convict a defendant of felony sexual assault in the fourth degree under

Conn. Gen. Stat. § 53a-73a(b), a jury must find beyond a reasonable doubt that the

victim was under the age of sixteen. See Crim. Jury Instruction Committee, Conn.

Judicial Branch Criminal Jury Instructions 7.1-12 (2018). Here, however, the plea



       3
          As discussed earlier in this opinion, Mr. Mesa argued to the BIA on appeal that the
record evidence, including his plea colloquy transcript, established by a “preponderance of the
evidence” he was convicted of a misdemeanor and not a felony. He also repeatedly challenged
the IJ’s finding that his Shepard documents were ambiguous as to the nature of his conviction.
As a result, Mr. Mesa properly exhausted this argument before the BIA, and we retain
jurisdiction to decide the claim. See Avila v. U.S. Att’y Gen., 560 F.3d 1281, 1285 (11th Cir.
2009) (“This Court has jurisdiction to review a final order of removal only if the alien has first
exhausted his administrative remedies.”).
       4
          We note, however, that this issue has produced a split among our sister circuits, with the
Sixth and Tenth Circuits concluding post-Moncrieffe that a petitioner necessarily fails to
demonstrate eligibility for relief of removal on an ambiguous record of conviction, and the First
Circuit taking the opposite position. Compare Gutierrez v. Sessions, 887 F.3d 770, 779 (6th Cir.
2018); Lucio-Rayos v. Sessions, 875 F.3d 573, 583 (10th Cir. 2017) (issued by quorum) with
Sauceda v. Lynch, 819 F.3d 526, 531 (1st Cir. 2016). The Ninth Circuit appears poised to decide
the issue en banc soon. See Marinelarena v. Sessions, 869 F.3d 780 (9th Cir. 2017), reh’g en
banc granted by Marinelarena v. Sessions, 886 F.3d 737 (9th Cir. 2018).


                                                11
             Case: 17-15186     Date Filed: 12/17/2018   Page: 12 of 13


colloquy transcript is silent as to the victim’s age. The prosecutor’s statement of

the facts at the plea colloquy reflects only that Mr. Mesa “subjected another person

to sexual contact without that person’s consent.” This is plainly insufficient to

sustain a felony conviction under the statute as a matter of law. See Conn. Gen.

Stat. § 53a-73a(b). The plea colloquy’s silence as to the victim’s age therefore

narrows Mr. Mesa’s offense of conviction to misdemeanor sexual assault in the

fourth degree.

      Because it is uncontested he satisfies the other two requirements, Mr. Mesa

has demonstrated his offense qualifies for the petty offense exception to

inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(ii). The BIA erred when it

determined otherwise and affirmed the IJ’s decision to deny his application for

adjustment of status.

                                         IV.

      The road to adjustment of status is a long and arduous one. Our conclusion

that Mr. Mesa has satisfied—via the petty offense exception—the requirement that

he be admissible to the United States only renders him eligible for adjustment of

status. 8 U.S.C. § 1255(a). Because the IJ determined Mr. Mesa satisfies the other

two requirements for adjustment of status, all that remains is for the Attorney

General to adjudicate his application. See Moncrieffe, 569 U.S. at 204, 133 S. Ct.

at 1692. We therefore remand for the agency to make that decision.



                                         12
    Case: 17-15186   Date Filed: 12/17/2018   Page: 13 of 13


PETITION GRANTED AND REMANDED.




                              13
