[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-15898

________________________

Agency No. A095-580-030

JIMMY PIERRE, 

 Petitioner,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(January 18, 2018)

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Before BLACK and HULL, Circuit Judges, and RESTANI,* Judge.

HULL, Circuit Judge: 

Jimmy Pierre, a native and citizen of Haiti, petitions for review of the 

decision of the Board of Immigration Appeals (“BIA”), which affirmed the 

Immigration Judge’s (“IJ”) orders concluding that Pierre was removable and 

ineligible for cancellation of removal based on his felony conviction for battery of 

a child by throwing, tossing, projecting, or expelling blood, seminal fluid, urine, or 

feces, in violation of Florida Statute § 784.085. 

After review and with the benefit of oral argument, we conclude that the 

BIA did not err in concluding that (1) Pierre was removable, because his 

conviction was a crime of child abuse within the meaning of 8 U.S.C. 

§ 1227(a)(2)(E)(i), (2) Pierre was ineligible for cancellation of removal, because 

his conviction was a crime involving moral turpitude (“CIMT”) within the 

meaning of 8 U.S.C. § 1227(a)(2)(A)(i), and (3) the IJ did not deprive Pierre of due 

process by granting the government’s motion to pretermit his application for 

cancellation of removal. Accordingly, we deny the petition.

 *

Honorable Jane A. Restani, Judge for the United States Court of International Trade, 

sitting by designation.

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I. LEGAL BACKGROUND

The Immigration and Nationality Act (“INA”) makes removable “[a]ny alien 

who at any time after admission is convicted of . . . a crime of child abuse, child 

neglect, or child abandonment.” 8 U.S.C. § 1227(a)(2)(E)(i). 

As to cancellation of removal, the INA further provides that the Attorney 

General may cancel the removal of an otherwise deportable alien if the alien 

(1) has been a lawful permanent resident in the United States for at least five years, 

(2) has resided in the United States continuously for at least seven years after being 

admitted in any status, and (3) has not been convicted of an aggravated felony. Id.

§ 1229b(a). However, as to the second requirement of continuous residence for 

seven years, “any period of continuous residence or continuous physical presence 

in the United States shall be deemed to end . . . when the alien has committed” any 

of several types of offenses, including a “crime involving moral turpitude.” Id.

§§ 1229b(d)(1), 1182(a)(2)(A)(i)(I). Pierre’s Florida conviction occurred before he 

had resided here continuously for seven years, triggering the “stop time rule” in the 

second requirement if his conviction was a CIMT.

Accordingly, all parties agree that (1) Pierre is removable if he was 

convicted of a crime of child abuse, and (2) he is not eligible for cancellation of 

removal if he was convicted of a CIMT. The primary dispute in this case is 

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whether Pierre’s conviction under Fla. Stat. § 784.085 falls within the definitions 

of “crime of child abuse” and “crime involving moral turpitude.” 

II. IMMIGRATION PROCEEDINGS 2012-2017

On May 15, 2004, Pierre, then aged 14, was admitted to the United States as 

an asylee from Haiti.

1

 On August 15, 2005, his status was adjusted to that of legal 

permanent resident. On December 18, 2009, Pierre pled guilty in Florida state 

court to one count of battery of a child, in violation of Fla. Stat. § 784.085. Pierre 

was sentenced to five years’ probation. 

Florida Statute § 784.085 is entitled “Battery of child by throwing, tossing, 

projecting, or expelling certain fluids or materials.” Fla. Stat. § 784.085. Under 

the statute, battery of a child occurs when a person “knowingly cause[s] or 

attempt[s] to cause a child to come into contact with blood, seminal fluid, or urine 

or feces by throwing, tossing, projecting, or expelling such fluid or material.” Id.

§ 784.085(1).

Notably, for both the completed crime (causing actual contact) and the 

attempt crime (attempting to cause contact), the statute requires that the defendant 

commit the overt act of throwing, tossing, projecting or expelling the bodily fluids

or feces. If contact occurs, the defendant is guilty of causing contact. If the 

defendant throws, tosses, projects, or expels the fluids or feces, but misses and no 

 1 Pierre originally was granted derivative asylum, which was derivative of his father’s 

asylee status. 

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contact occurs, the defendant is guilty of an attempt to cause contact by the 

proscribed overt act. Either way, the defendant must have thrown, tossed, 

projected or expelled blood, seminal fluid, urine, or feces, and the target of the 

overt act must be a child. 

A. Preliminary Hearings

In July 2012, the Department of Homeland Security (“DHS”) issued a 

Notice to Appear, charging Pierre with removability under 8 U.S.C. 

§ 1227(a)(2)(E)(i) for having the above Florida conviction for “a crime of domestic 

violence, a crime of stalking, or a crime of child abuse, child neglect, or child 

abandonment.”2

 

Pierre, represented by counsel, appeared before an IJ on August 14, 2012. 

Pierre admitted the factual allegations in the notice to appear, but contested his 

removability, arguing that his Florida conviction was not a crime of child abuse. 

The IJ adjourned to allow the parties to brief that issue. At the next hearing, on 

September 13, 2012, the IJ concluded that Pierre was removable because “the 

particular offense in this case is battery on a child because it involves particular 

elements mentioned in a statute . . . [and] is a crime of child abuse.” 

 2 Pierre was also initially charged as removable under 8 U.S.C. § 1227(a)(2)(A)(ii), as an 

alien convicted of two CIMTs, based on the same battery conviction under Fla. Stat. § 784.085. 

That charge was withdrawn. 

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Pierre next appeared before an IJ on April 25, 2013. At that hearing, Pierre 

requested additional time to apply for cancellation of removal, and stated that he 

wished to “reserve the opportunity to look into filing asylum, [and] withholding 

[of] removal.” The IJ set a deadline of July 24, 2013 “for the [cancellation of 

removal] application and all supporting documents.” The government asked 

whether Pierre would also be pursuing an asylum application. Pierre replied that 

he “[did not] know if the Government is going to have any issue as to the 

eligibility for the [cancellation of removal],” so he “would just like to reserve any 

possible form of relief.” The IJ informed Pierre that the July 24, 2013 deadline

would also apply to an asylum application. Pierre, through counsel, replied, 

“That’s fine, Your Honor.” 

B. April 30, 2015 Merits Hearing 

Pierre applied for cancellation of removal on January 25, 2014, but did not 

apply for any other forms of relief from removal, such as asylum. A hearing on the 

application was held on April 30, 2015. 

At the hearing, the IJ issued two oral decisions concerning Pierre’s 

removability and eligibility for cancellation of removal. The IJ also denied 

Pierre’s request for additional time to apply for an alternate form of relief from 

removal. We discuss these decisions in turn.

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In his first oral decision, the IJ concluded that Pierre was removable because 

his Florida conviction matched the generic definition of child abuse, which the 

BIA has described as “any offense involving an intentional, knowing, reckless or 

criminally negligent act or omission that constitutes maltreatment of a child or that 

impairs a child’s physical or mental well-being, including sexual abuse or 

exploitation.” See Matter of Velazquez-Herrera, 24 I&N Dec. 503, 517 (BIA 

2008). 

The IJ acknowledged that Fla. Stat. § 784.085 criminalizes both attempted 

battery of a child and actual battery of a child. But the IJ concluded that this did 

not make the statute divisible, because “both the actual crime and the inchoate 

crime would fit the general definition.” This was so, the IJ explained, because, 

under Florida law, the prosecution “must prove the existence of an overt act as 

necessary to support a conviction for attempt.” See Thomas v. State, 531 So. 2d 

708, 709-10 (Fla. 1988). Thus, “even if the crime were [an] inchoate offense, the 

commission of the overt act against a child would, at a minimum, inflict some level 

of mental or emotional harm to the child.” 

In his second oral decision, the IJ concluded that Pierre was ineligible for 

cancellation of removal because “battery on a child is a crime involving moral 

turpitude and falls under the auspices of [8 U.S.C. § 1182].”

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On the day of the hearing, the government moved to pretermit the

application for cancellation of removal, arguing that Pierre was ineligible for that 

relief. The government argued that Pierre did not meet the statutory requirement 

of seven years’ continuous presence in the United States, because his conviction 

under Fla. Stat. § 784.085 was a CIMT, which triggered the “stop time rule” of the 

INA. See 8 U.S.C. § 1229b(d)(1). 

In his second decision, the IJ agreed with the government that Pierre’s 

conviction for a CIMT “cuts him off from establishing . . . seven years of lawfully 

residing in the United States before the commission of the offense,” and that Pierre 

therefore was “precluded statutorily from establishing eligibility for cancellation of 

removal.” 

Because Pierre was ineligible for cancellation of removal, the IJ granted the 

government’s motion to pretermit Pierre’s application for cancellation of removal. 

C. Pierre’s Request for Continuance

At the merits hearing, Pierre’s counsel argued that he had not had “sufficient 

time to develop” an opposition to the government’s motion to pretermit, because 

“[the government] just submitted it today.” In response, the IJ noted that Pierre’s 

counsel had been on the case for “at least two years.” 

Counsel argued that Pierre should be allowed time to file an application for 

asylum, withholding of removal, and relief under the United Nations Convention 

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against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 

(“CAT”). The IJ asked why that application had not already been filed. Counsel 

replied that he was under the impression that cancellation of removal was going to 

be the best possible application, and that the issue of eligibility for cancellation of 

removal had not been raised in over two years. 

The IJ did not grant counsel’s request for more time to file for alternate 

forms of relief from removal and ordered Pierre removed.

D. Appeal to the BIA

Pierre appealed the IJ’s decisions to the BIA. Pierre identified three separate 

grounds for the appeal: (1) that the IJ erred in determining that Pierre’s battery 

conviction was a crime of child abuse; (2) that the IJ erred in determining that 

Pierre’s battery conviction was a CIMT; and (3) that the IJ abused his discretion in 

allowing the government to file its motion to pretermit on the day of the merits 

hearing, rather than 15 days in advance as required by Executive Office for 

Immigration Review (“EOIR”) rules, and in denying Pierre a continuance to allow 

him time to respond to the government’s motion to pretermit. 

E. The BIA’s August 9, 2016 Decision

On August 9, 2016, the BIA dismissed Pierre’s appeal. The BIA first 

concluded that a battery of a child conviction under Fla. Stat. § 784.085 

“categorically constitutes a crime of child abuse within the meaning of [the INA].” 

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The BIA pointed out that at a minimum, a child abuse conviction is one “involving 

the infliction on a child of physical harm, even if slight,” or “mental or emotional 

harm.” See Velazquez-Herrera, 24 I&N Dec. at 512. The BIA reasoned that 

“[t]hrowing, tossing, projecting, or expelling personal bodily fluids or feces onto a 

child not only includes a substantial risk of mental or emotional harm to the child, 

but also carries a significant risk that the child will be exposed to fluid-borne or 

fecal pathogens.” The BIA concluded that the statute falls within the generic 

definition of child abuse, as it describes an act that “impairs a child’s physical or 

mental well-being.” See Velazquez-Herrera, 24 I&N Dec. at 517.

The BIA also affirmed the IJ’s determination that § 784.085 constitutes a 

CIMT. The BIA explained that a CIMT is a crime that is “‘inherently base, vile, or 

depraved,’ and can include the infliction of harm on ‘a person whom society views 

as deserving of special protection, such as a child.’” See Matter of Sanudo, 23 

I&N Dec. 968, 970, 972 (BIA 2006). The statute at issue, the BIA reasoned, 

qualifies as a CIMT because it is “explicit that the perpetrator must have 

knowingly engaged in acts of ‘throwing, tossing, projecting or expelling’ bodily 

fluids or feces onto a child.” This is “substantially beyond simply permitting a 

child to come into contact with such things.” Because Pierre was convicted under 

the Florida battery of a child statute before he had been in the United States 

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continuously for seven years, the BIA affirmed the IJ’s conclusion that Pierre was 

not eligible for cancellation of removal. 

The BIA also found that Pierre had not shown good cause for a continuance. 

First, the BIA concluded that due process did not require allowing Pierre more 

time to respond to the government’s motion to pretermit, because, regardless of 

whether a response to the motion was filed, the IJ, in considering Pierre’s own 

application for cancellation of removal, would nonetheless have been obligated to 

consider Pierre’s statutory ineligibility for the requested relief. The BIA noted 

that, in any event, Pierre had not set forth any viable argument as to why he would 

be eligible for cancellation of removal. Second, the BIA concluded that no 

continuance was warranted to allow Pierre to apply for asylum, withholding of 

removal, or CAT relief, because Pierre had ample “opportunity to submit all 

applications for relief prior to the time of the final hearing.” 

Pierre timely filed this petition for review of the BIA’s decisions.

III. DISCUSSION

A. Standard of Review

Whether a conviction qualifies as a “crime of child abuse” or a “crime 

involving moral turpitude” under the INA is a question of law for the Court. See

Vuksanovic v. U.S. Att’y Gen., 439 F.3d 1308, 1311 & n.3 (11th Cir. 2006). We 

review de novo such questions of law, subject to the principles of deference 

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articulated in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 

104 S. Ct. 2778 (1984). Arevalo v. U.S. Att’y Gen., 872 F.3d 1184, 1187 (11th

Cir. 2017).

If an INA term or provision is undefined or ambiguous, and the BIA has 

interpreted that term or provision in a published, precedential decision, we defer to 

the BIA’s interpretation under Chevron, as long as it reflects a permissible 

construction of the INA statute. See Negusie v. Holder, 555 U.S. 511, 516-17, 129 

S. Ct. 1159, 1163-64 (2009); Perlera-Escobar v. Exec. Office for Immigration, 894 

F.2d 1292, 1296 (11th Cir. 1990).

B. Crime of Child Abuse

We first address whether a battery on a child conviction under Fla. Stat. 

§ 784.085 constitutes a crime of child abuse within the meaning of the INA. 

The INA does not define “child abuse.” See Velazquez-Herrera, 24 I&N 

Dec. at 508. Because the statute is silent on the issue, we may defer to the BIA’s 

interpretation of the INA, so long as that interpretation is reasonable and consistent 

with the statute. Chevron, 467 U.S. at 843, 104 S. Ct. at 2781-82; see Tovar v. 

U.S. Att’y Gen., 646 F.3d 1300, 1304-05 (11th Cir. 2011) (deferring to the BIA’s 

interpretation of the INA term “sought to acquire”); Perlera-Escobar, 894 F.2d at 

1296-97 (deferring to the BIA’s interpretation of the INA term “on account of . . . 

political opinion”).

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The BIA has defined a “crime of child abuse” as “any offense involving an 

intentional, knowing, reckless, or criminally negligent act or omission that 

constitutes maltreatment of a child or that impairs a child’s physical or mental 

well-being.” Velazquez-Herrera, 24 I&N Dec. at 517. This definition includes, 

among other things, “the infliction on a child of physical harm, even if slight,” as 

well as “mental or emotional harm, including acts injurious to morals.” Id. at 512.

In determining this definition, the BIA began with the plain language of the 

INA itself. Id. at 507. The BIA noted the importance of reading statutory words in 

their context and “with a view to their place in the overall statutory scheme.” Id. at 

507-08 (quotations omitted). The BIA pointed out that Congress chose to define 

the term “crime of domestic violence” in the INA “at considerable length,” while 

leaving other statutory terms, including “crime of child abuse,” undefined. Id. at 

508. The BIA concluded that this “trigger[ed] the negative inference that Congress 

deliberately left [the undefined terms] open to interpretation.” Id.

The BIA reasoned that “child abuse” is a well-recognized legal concept, 

such that the BIA’s consideration of the “ordinary, contemporary, and common 

meaning” of child abuse should be “informed by the term’s established legal 

usage.” Id. In addition, the BIA took into account the presumption that federal 

immigration laws are intended to have “uniform nationwide application,” which

should reflect the federal policies underlying the INA. Id. Looking to those

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policies, the BIA found it “significant” that the child abuse section of the INA was 

“part of an aggressive legislative movement to expand the criminal grounds of 

deportability in general and to create a comprehensive statutory scheme to cover 

crimes against children in particular.” Id. at 508-09 (quotation omitted). Thus, the 

BIA stated, “the term ‘crime of child abuse’ should be interpreted broadly.” Id. at 

509.

More recently, the BIA has explained that because the definition of child 

abuse includes an “act or omission that constitutes maltreatment of a child,” the 

definition “is sufficiently broad to encompass endangerment-type crimes.” Matter 

of Soram, 25 I&N Dec. 378, 379, 383 (BIA 2010) (concluding that the Colorado 

crime of endangerment, which punishes a person who knowingly or recklessly 

permits a child to be unreasonably placed in a situation that poses a threat of injury 

to the child’s life or health, categorically qualifies as a crime of child abuse). 

Therefore, child abuse crimes under the INA are not limited to those offenses 

“requiring proof of actual harm or injury to the child.” Id. at 381. 

With this background in mind, we now examine whether the Florida statute 

fits within the BIA’s generic and broad definition of “child abuse.” Because the 

statute is not divisible, we apply the categorical approach, asking whether the

“least culpable conduct necessary to sustain a conviction under the statute” meets 

the BIA’s definition of child abuse. Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1241 

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(11th Cir. 2016) (quoting Keungne v. U.S. Att’y Gen., 561 F.3d 1281, 1284 n.3 

(11th Cir. 2009)). “Under the categorical approach, we consider only the fact of 

conviction and the statutory definition of the offense, rather than the specific facts 

underlying the defendant’s case.” Gelin, 837 F.3d at 1241.

Under Florida Statute § 784.085, a criminal battery of a child occurs when a 

person “knowingly cause[s] or attempt[s] to cause a child to come into contact with 

blood, seminal fluid, or urine or feces by throwing, tossing, projecting, or expelling 

such fluid or material.” Fla. Stat. § 784.085(1). Even the least culpable conduct 

covered by the statute—knowingly attempting to cause a child to come into contact 

with these particular bodily fluids or feces, by the overt act of throwing, tossing, 

projecting, or expelling the fluids or feces—constitutes a crime of child abuse.

As an initial matter, a battery conviction under § 784.085 requires an overt 

act. Indeed, this Court has held that violation of that statute “require[s] a physical 

act . . . directed against a person.” United States v. Young, 527 F.3d 1274, 1278 

(11th Cir. 2008). And while the statute includes attempt within its definition, 

Florida law requires an overt act for a conviction for attempt. Thomas, 531 So. 2d 

at 709-10. As explained above, the statutory language makes clear that the 

difference between the completed crime and the attempt is only that in the attempt, 

the child victim does not actually come into contact with bodily fluids or feces. In 

other words, a defendant violates the attempt prong of § 784.085 if, for example,

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he tosses blood or feces at a child and misses. If the defendant does nothing, there 

is no attempt, no statutory violation, and no conviction. 

An act that knowingly attempts to cause a child to come into contact with 

blood, seminal fluid, urine, or feces—whether or not the attempt is successful—

carries a significant risk of physically injuring or harming the child. As the BIA 

noted in this case, a child who has had blood or urine thrown at her by an adult is 

at substantial risk of mental or emotional harm, in addition to the possibility of 

physical injury through “expos[ure] to fluid-borne or fecal pathogens.” At a 

minimum, this repugnant type of battery or attempted battery constitutes 

maltreatment of a child. See Matter of Soram, 25 I&N Dec. at 382-83.

Accordingly, applying Chevron deference to the definitions of “child abuse” 

found in Velazquez-Herrera and Soram, we (1) uphold them as reasonable 

interpretations of the INA, to the extent they apply to Pierre’s case, and 

(2) conclude that the BIA did not err in concluding that Pierre’s conviction for 

battery on a child constituted a crime of child abuse.3

 

 3 Because Pierre’s conviction necessarily involved a knowing and overt act, Pierre’s case 

does not require us to determine whether purely negligent acts with no injury to the child 

proscribed by a state statute constitute generic crimes of child abuse. Compare Ibarra v. Holder, 

736 F.3d 903 (10th Cir. 2013) (criticizing the BIA’s definitions of “child abuse” as overly 

inclusive, and holding that a conviction under §§ 18-6-401(1)(a) & (7)(b)(II) of Colorado’s child 

abuse statute for criminally negligent conduct with no injury did not fit the generic federal 

definition of child abuse) with Flores v. Holder, 779 F.3d 207 (2d Cir. 2015) (criticizing Ibarra,

applying Chevron deference to the BIA’s definitions of child abuse as reasonable interpretations 

of the INA, and affirming the BIA’s ruling that a New York conviction under N.Y.P.L.

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C. Crime Involving Moral Turpitude

We next determine whether § 784.085 describes a crime involving moral 

turpitude within the meaning of the INA.

Like child abuse, the term “moral turpitude” is not defined in the INA. See

Cano v. U.S. Att’y Gen., 709 F.3d 1052, 1053 (11th Cir. 2013). This Court has 

concluded that moral turpitude “involves an act of baseness, vileness, 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.” Id. (quotations and alteration omitted). “Whether a crime involves 

the depravity or fraud necessary to be one of moral turpitude depends upon the 

inherent nature of the offense, as defined in the relevant statute, rather than the 

circumstances surrounding a defendant’s particular conduct.” Sosa-Martinez v. 

U.S. Att’y Gen., 420 F.3d 1338, 1341-42 (11th Cir. 2005) (quotations omitted).

Where a state statute is not divisible, both this Court and the BIA have 

historically utilized the categorical approach to determine whether a conviction for 

a particular crime qualifies as a CIMT. Gelin, 837 F.3d at 1241. Using that 

approach, this Court previously has held that crimes such as criminal reckless 

conduct, aggravated battery, abuse of an elderly or disabled adult, and aggravated 

 

§ 260.10(1) for “knowingly act[ing] in a manner likely to be injurious to the physical, mental or 

moral welfare of a child” qualified as a generic crime of child abuse).

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child abuse are crimes involving moral turpitude. See Keungne, 561 F.3d at 1287-

88 (Georgia crime of criminal reckless conduct); Sosa-Martinez, 420 F.3d at 1342 

(Florida crime of aggravated battery); Gelin, 837 F.3d at 1247-48 (Florida crime of 

abuse of an elderly or disabled adult); Garcia v. U.S. Att’y Gen., 329 F.3d 1217, 

1222 (11th Cir. 2003) (Florida crime of aggravated child abuse). Among the 

factors this Court has considered are the mental state required for the conviction 

and the vulnerability of those protected by the statute. See Gelin, 837 F.3d at 

1243. If a conviction requires that a defendant acted knowingly or intentionally, 

the statute “requires a sufficiently culpable mental state to constitute a CIMT.” Id.

at 1245. Similarly, if a statute “requires an intentional act targeted at vulnerable 

victims,” that requirement “further demonstrates that a violation of the statute is 

morally turpitudinous.” Id. at 1246. 

Pierre’s battery of a child conviction under § 784.085 means that, at a 

minimum, he knowingly projected blood, seminal fluid, urine, or feces at a child. 

Fla. Stat. § 784.085(1); see Thomas, 531 So. 2d at 709-10. By its plain terms, the 

statute requires that Pierre had a knowing mental state. In the battery context, 

Florida courts have interpreted the requirement of a “knowing” mental state to 

mean the defendant must have had specific intent. See, e.g., T.S. v. State, 965 So. 

2d 1288, 1290 (Fla. Dist. Ct. App. 2007). And Florida law mandates that a statute 

“give[] a person of ordinary intelligence fair notice of what constitutes forbidden 

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conduct . . . . measured by common understanding and practice.” Sieniarecki v. 

State, 756 So. 2d 68, 74 (Fla. 2000) (quotations omitted). Thus, although 

§ 784.085 does not expressly tie the knowing mental state to each element of the 

crime, it is apparent that a defendant cannot be convicted under § 784.085 unless 

he knew that he was (1) projecting (2) bodily fluids or feces (3) at a child. See

Gelin, 837 F.3d at 1246 (“[I]t is apparent that, measured by common understanding 

and practice, perpetrators must have subjective knowledge of their victims’ 

vulnerable status.”).

In any event, we need not rely solely on Pierre’s culpable mental state or the 

vulnerable status of his victim in order to decide this issue. The inherent nature of 

deliberately projecting bodily fluids or feces at a child is base and vile, and 

“contrary to the accepted and customary rule of right and duty between man and 

man.” Cano, 709 F.3d at 1053. We agree with the BIA that this conviction 

categorically constitutes a CIMT. 

We note Pierre’s argument that the act of expelling urine on a child’s 

jellyfish sting, in order to alleviate the pain, would violate the letter of § 784.085,

but would not be base or vile and thus would not be a CIMT. Although this is true, 

it does not affect our determination that the statute is categorically a CIMT. In 

order to show that a statute creates a crime outside the categorical definition, a 

party must show “a realistic probability, not a theoretical possibility, that the State 

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would apply its statute” to the nongeneric conduct. Gonzales v. Duenas-Alvarez, 

549 U.S. 183, 193, 127 S. Ct. 815, 822 (2007). To do this, the party “must at least 

point to his own case or other cases in which the state courts in fact did apply the 

statute in the special (nongeneric) manner for which he argues.” Id. Pierre has 

pointed to no instance in which the state of Florida has prosecuted a person under 

§ 784.085 for urinating on a jellyfish sting, or indeed for any realistic conduct that 

would not qualify as a crime involving moral turpitude. 

4. Due Process

We next consider whether Pierre was deprived of due process when the IJ 

(1) granted the government’s motion to pretermit his application for cancellation of 

removal based on non-eligibility, which motion the government filed the day of the 

merits hearing, and (2) denied Pierre’s motion for a continuance to allow him more 

time to respond to the government’s motion and to apply for alternative forms of 

relief.

Cancellation of removal is a discretionary form of relief, as is the 

continuance of removal proceedings. See Jimenez-Galicia v. U.S. Att’y Gen., 690 

F.3d 1207, 1209 (11th Cir. 2012) (cancellation of removal); Alvarez Acosta v. U.S. 

Att’y Gen., 524 F.3d 1191, 1197 (11th Cir. 2008) (continuance of removal

proceedings). Because the relief sought was discretionary, Pierre “was deprived of 

no liberty interest” in that relief, and can claim no deprivation of substantive due 

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process. Alvarez Acosta, 524 F.3d at 1197 (emphasis in original). We therefore 

address only whether Pierre was deprived of procedural due process.

Procedural due process entitles an alien to notice of the charges of removal

against him, and to an opportunity to be heard. Resendiz-Alcaraz v. U.S. Att’y 

Gen., 383 F.3d 1262, 1272 (11th Cir. 2004). To prevail on a due process 

challenge, an alien must show that he was deprived of notice or an opportunity to 

be heard, and that he was “substantially prejudiced” by the deprivation. Frech v. 

U.S. Att’y Gen., 491 F.3d 1277, 1281 (11th Cir. 2007). An alien can demonstrate 

substantial prejudice by showing that, absent the violation, “the outcome would 

have been different.” See Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987).

Here, as part of his claim for relief from removal, Pierre had the burden to 

show he was eligible for cancellation of removal. Further, the Notice to Appear 

charged that Pierre was removable due to his conviction for battery of a child in 

violation of Fla. Stat. § 784.085, which is the same crime that made him ineligible 

for removal. Nonetheless, the government filed its motion to pretermit on the 

morning of the hearing and thereby violated EOIR rules, which require all parties 

to submit filings at least 15 days in advance of an alien’s individual calendar 

hearing. EOIR R. P. 3.1(b)(ii)(A). One purpose of the 15-day rule, presumably, is 

to ensure that parties have adequate notice of what will be presented at the hearing, 

so that they can prepare a response.

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Nevertheless, we need not resolve any notice issue because Pierre has not 

shown that he was substantially prejudiced by the government’s late motion to 

pretermit, and thus has not established a due process violation. Frech, 491 F.3d at 

1281. Whether the government had filed its motion timely or late, the IJ 

necessarily would have had to consider whether Pierre’s battery on a child 

conviction under § 784.085 was a CIMT in order to determine his eligibility for 

cancellation of removal. See 8 U.S.C. §§ 1229b(a), (d)(1), & 1182(a)(2)(A)(i)(I). 

Nothing in the record, or even in Pierre’s arguments in this appeal, suggests that 

the IJ would have concluded differently if Pierre had been allowed to file an 

opposition. Indeed, the IJ made clear that denying the government’s motion would 

mean “ignor[ing] the law.” The BIA reached the same conclusion, finding that § 

784.085 describes a CIMT. As discussed above, we agree. Accordingly, because 

Pierre has not shown that the “outcome would have been different” if the 

government had filed its motion to pretermit 15 days before the hearing or the IJ 

had granted him additional time to respond, we find no due process violation. 

Ibrahim, 821 F.2d at 1550.

As a final point, we conclude that the IJ’s failure to give Pierre more time to 

file an asylum application also does not constitute a due process violation. Pierre 

was considering applying for asylum, withholding of removal, and CAT relief as 

early as April 25, 2013, more than two years before his merits hearing. The IJ 

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gave express notice of the July 2013 deadline for those applications. Pierre had 

ample notice and opportunity to be heard with respect to alternative forms of relief, 

and thus was not deprived of due process. Resendiz-Alcaraz, 383 F.3d at 1272.

IV. CONCLUSION

For the reasons stated above, we conclude that a battery of a child conviction 

under Florida Statute § 784.085 is categorically a crime of child abuse and a 

CIMT. The Immigration Judge did not deprive Pierre of due process by denying 

his motion for a continuance. Accordingly, we deny Pierre’s petition for review.

PETITION DENIED.

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