Gustavo Cucalon v. William Barr
958 F.3d 245
| 4th Cir. | 2020Background
- Petitioner Gustavo Cucalon, a lawful permanent resident from Nicaragua, pleaded guilty in 2006 to distribution of cocaine as an accommodation under Va. Code § 18.2-248(D).
- In 2017 DHS charged him removable on two grounds: (1) aggravated felony (drug trafficking crime) under 8 U.S.C. § 1227(a)(2)(A)(iii); and (2) crime relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B)(i).
- Cucalon argued the Virginia statute is broader than federal controlled-substance schedules and is indivisible by substance, so his conviction cannot categorically qualify under the INA.
- The IJ applied the modified categorical approach and found removability; the BIA affirmed and denied Cucalon’s later motion to reconsider as untimely and meritless.
- The Fourth Circuit reviewed de novo whether the conviction qualifies as an aggravated felony/crime relating to a controlled substance and whether the BIA abused its discretion in denying reconsideration.
- The court held Va. Code § 18.2-248 is divisible by substance, and that Cucalon’s conviction for distribution of cocaine (a federally listed Schedule II drug) qualifies under both removal grounds; the BIA’s denial of reconsideration was not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Va. Code § 18.2-248 is indivisible (so categorical approach bars conviction from matching federal drug definitions) | Cucalon: statute is overbroad and not divisible by substance, so conviction cannot categorically match INA definitions | Government: statute is divisible by substance; identity of the drug is an element of the offense | Va. Code § 18.2-248 is divisible by substance; identity is an element |
| Whether distribution-as-accommodation conviction matches federal "crime relating to a controlled substance" | Cucalon: accommodation variant and state schedules broaden scope beyond federal schedules | Government: modified categorical approach shows conviction was for cocaine, a federal Schedule II drug | Conviction for distribution of cocaine qualifies as a crime relating to a controlled substance |
| Whether the same conviction constitutes a federal "drug trafficking crime" (aggravated felony) | Cucalon: state offense broader; not a categorical match to federal definition of drug trafficking felony | Government: distribution of federally listed drug (cocaine) fits federal drug-trafficking crime definition | Conviction for distribution of cocaine qualifies as a drug trafficking crime/aggravated felony |
| Whether the BIA abused its discretion by denying Cucalon’s motion to reconsider | Cucalon: submitted new arguments/evidence (mens rea, isomer coverage, accomplice liability, other indictments) that show indivisibility | Government/BIA: arguments were untimely/waived and, even if considered, lack merit | BIA did not abuse its discretion; arguments were waived and would not change divisibility conclusion |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (establishes limits of categorical vs. modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (distinguishes elements from means; divisibility principle)
- Mellouli v. Lynch, 135 S. Ct. 1980 (requires connection between conviction element and federal drug schedules for § 1227(a)(2)(B)(i))
- Shepard v. United States, 544 U.S. 13 (documents permissible under modified categorical approach)
- Taylor v. United States, 495 U.S. 575 (foundational categorical-approach framework)
- Bah v. Barr, 950 F.3d 203 (4th Cir.) (held Va. possession statute divisible by substance; applied to § 18.2-248 analysis)
- Furlow v. United States, 928 F.3d 311 (4th Cir.) (discusses modified categorical approach application)
- Cornette v. United States, 932 F.3d 204 (4th Cir.) (uses jury instructions as evidence of divisibility)
- Guevara-Solorzano v. Sessions, 891 F.3d 125 (4th Cir.) (standards for de novo review of legal issues in immigration convictions)