26 I. & N. Dec. 415
BIA2014Background
- Respondent (Brazilian LPR) pled guilty in Connecticut (Mar. 11, 2010) to "sale of certain illegal drugs" under Conn. Gen. Stat. § 21a-277(a); sentence suspended, five years probation.
- DHS charged removability under INA § 237(a)(2)(A)(iii) (aggravated felony: illicit trafficking) and § 237(a)(2)(B)(i) (controlled substance conviction), both of which incorporate the CSA definition of "controlled substance."
- Connecticut schedules at the time included two obscure opiate derivatives (benzylfentanyl and thenylfentanyl) that had been removed from the federal schedules in 1986. Thus the state statute potentially covered substances outside the federal definition.
- IJ applied the modified categorical approach and relied on the plea colloquy ("sale of narcotics") to sustain removability; respondent argued Moncrieffe requires categorical analysis and that DHS failed to show the conviction necessarily involved a federally controlled substance.
- Board held the IJ erred by skipping the realistic-probability inquiry required by Moncrieffe/Duenas‑Alvarez and remanded for factfinding on whether Connecticut actually prosecutes offenses involving benzylfentanyl or thenylfentanyl (or whether the conviction actually involved those substances).
Issues
| Issue | Petitioner (Ferreira) Argument | Respondent (DHS) Argument | Held |
|---|---|---|---|
| Whether respondent's Conn. conviction is an aggravated felony/controlled-substance conviction under the INA (categorical approach) | Conn. statute was broader than federal CSA because it listed benzylfentanyl/thenylfentanyl; DHS did not show the conviction necessarily involved a federally listed substance | The plea colloquy indicates "narcotics," and the conviction corresponds to a CSA trafficking offense punishable as a felony | Remand for application of the Moncrieffe realistic‑probability test; categorical inquiry required before relying on modified categorical approach |
| Whether the IJ properly used the modified categorical approach (Shepard documents) | Modified categorical approach cannot be used if statute is overbroad; plea colloquy did not identify the exact substance | Plea colloquy admitting "sale of narcotics" shows narcotic rather than an excluded substance | IJ erred: both benzylfentanyl and thenylfentanyl are narcotics, so modified categorical approach would not resolve the overbreadth issue without first applying realistic‑probability test |
| Whether the discrepancy between state and federal schedules defeats removability (realistic‑probability test) | Because Connecticut listed substances not on federal schedules, respondent met burden to show a realistic probability state prosecutes those substances | DHS urged reliance on plea colloquy and prior cases sustaining removability | Board: petitioner must point to his case or other state cases showing Connecticut actually prosecutes using those non‑federal substances; remand for factfinding |
| Burden of proof on removability | Respondent: DHS failed to prove removability by clear and convincing evidence because record lacks substance identity | DHS: judgment and plea colloquy suffice to meet burden | Burden remains DHS's (clear and convincing); remand permits DHS to submit additional evidence to meet that burden under the proper legal framework |
Key Cases Cited
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (categorical approach requires demonstration of "realistic probability" that state statute would be applied to nongeneric conduct)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (established realistic‑probability test for overbroad state statutes)
- Lopez v. Gonzales, 549 U.S. 47 (2006) (state drug offense counts as federal felony only if it proscribes conduct punishable as a felony under the CSA)
- Shepard v. United States, 544 U.S. 13 (2005) (limits documents usable under the modified categorical approach)
- Johnson v. United States, 559 U.S. 133 (2010) (conviction must be viewed as resting on the least culpable conduct)
- McCoy v. United States, 707 F.3d 184 (2d Cir. 2013) (noting obscurity of benzylfentanyl and thenylfentanyl in relation to federal schedules)
- Pascual v. Holder, 723 F.3d 156 (2d Cir. 2013) (distribution can include delivery by gift or offer)
- Carrasco‑Tercero v. United States, 745 F.3d 192 (5th Cir. 2014) (applying Moncrieffe's realistic‑probability requirement to state statutes)