Case: 18-14000 Date Filed: 03/26/2020 Page: 1 of 10 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-14000 ________________________ Agency No. A041-091-230 CYRIL MCDONALD GEORGE, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (March 26, 2020) Before WILLIAM PRYOR, JILL PRYOR, and LUCK, Circuit Judges. WILLIAM PRYOR, Circuit Judge: This petition for review requires us to decide whether the Board of Immigration Appeals erred when it ruled that Cyril George’s conviction for sexual misconduct, N.Y. Penal Law § 130.20, qualifies, under the modified categorical Case: 18-14000 Date Filed: 03/26/2020 Page: 2 of 10 approach, as the aggravated felony of rape, 8 U.S.C. § 1101(a)(43)(A), and a crime involving moral turpitude, id. § 1227(a)(2)(A)(ii). In 1994, George pleaded guilty to violating a New York statute that forbade “sexual intercourse with a female without her consent.” N.Y. Penal Law § 130.20 (1994). New York law provides that lack of consent can arise from either “[f]orcible compulsion” or a victim being “less than seventeen years old.” Id. § 130.05(2)(a), (3)(a). The Department of Homeland Security charged George with removability on the grounds that his conviction qualified as both an aggravated felony and a crime involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii)–(iii). The Board agreed. It ruled that the New York statute defines two crimes—forcible rape and statutory rape—not a single crime that can be committed in two ways. The Board then considered factual allegations from a criminal complaint that George forced a 12-year-old girl to have sex with him at gunpoint. Based on that complaint, the Board concluded that George pleaded guilty to forcible rape, not statutory rape, and it ruled that his crime qualified as both the aggravated felony of rape and a crime involving moral turpitude. But the Board erred under the modified categorical approach. The criminal complaint fails to specify whether George pleaded guilty to forcible rape, and the plea record otherwise fails to make clear whether he pleaded guilty to that crime. We grant his petition for review, vacate the Board’s decision, and remand for further proceedings. 2 Case: 18-14000 Date Filed: 03/26/2020 Page: 3 of 10 I. BACKGROUND Cyril George, a citizen of Trinidad and Tobago, immigrated to the United States in 1986 at age 10 and became a lawful permanent resident two years later. In 1994, at age 18, he pleaded guilty in a New York court to sexual misconduct. See N.Y. Penal Law § 130.20 (1994). His statute of conviction forbade a male to engage in “sexual intercourse with a female without her consent.” Id. Under New York law, lack of consent can arise from either “[f]orcible compulsion” or a victim being “less than seventeen years old.” Id. § 130.05(2)(a), (3)(a). Several years later, in 2001, George pleaded guilty to patronizing a prostitute. See id. § 230.03. The Department of Homeland Security later charged George with removability on two grounds. First, it alleged that his conviction for ...
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