[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 22-10971 ____________________

MARKEN LEGER, Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A075-313-760 ____________________ USCA11 Case: 22-10971 Document: 43-1 Date Filed: 05/20/2024 Page: 2 of 30

2 Opinion of the Court 22-10971

Before JORDAN and ROSENBAUM, Circuit Judges, and MANASCO,∗ District Judge. JORDAN, Circuit Judge: In Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017), the Su- preme Court considered whether a California conviction for un- lawful sexual intercourse with a minor—pursuant to a statute which prohibited consensual sexual intercourse between a 21-year- old and a 17-year-old—constituted the “sexual abuse of a minor,” which is a listed aggravated felony under the Immigration and Na- tionality Act, 8 U.S.C. § 1101(a)(43)(A). The INA does not define “sexual abuse of a minor,” but the Supreme Court unanimously held (without Justice Gorsuch participating) that “in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16.” Esquivel-Quintana, 581 U.S. at 390–1. Because the California statute at issue did not “categorically fall within that definition,” the Court concluded that a conviction pursuant to it was not an aggravated felony. See id. at 391. In this case, we must decide whether a Florida conviction for lewd and lascivious battery under the 2008 version of Fla. Stat. § 800.04(4)—an offense which the Florida Supreme Court has char- acterized as statutory rape—constitutes the sexual abuse of a

∗ The Honorable Anna M. Manasco, U.S. District Judge for the Northern Dis- trict of Alabama, sitting by designation. USCA11 Case: 22-10971 Document: 43-1 Date Filed: 05/20/2024 Page: 3 of 30

22-10971 Opinion of the Court 3

minor, and is therefore an aggravated felony under the INA. Ap- plying the categorical approach, and building on the Supreme Court’s analysis in Esquivel-Quintana, we hold that it is not. The least culpable conduct under § 800.04(4) is consensual sexual activ- ity between adolescents who are 12 to 15 years old, with no mini- mum age required for the perpetrator. The statute therefore sweeps more broadly than the generic federal definition of “sexual abuse of a minor,” which in the statutory rape context before us requires an age difference of at least one year between the perpe- trator and the victim. We realize that this short summary may be unintelligible to those who are unversed in the intricacies of immigration law and unfamiliar with the Supreme Court’s categorical approach for de- termining which state offenses constitute aggravated felonies—and maybe even to those who profess some expertise. In the pages that follow, we’ll do our best to ex