884 F.3d 1120
11th Cir.2018Background
- Francisco, a Dominican national and lawful permanent resident, pled guilty in Florida to trafficking in cocaine under Fla. Stat. § 893.135(1)(b)1.c (alleging sale/purchase/manufacture/delivery/bringing into state or possession of 400+ grams) and to conspiracy; he received a downward-departure sentence.
- DHS issued a Notice to Appear charging removability both as an alien convicted of an aggravated felony (illicit drug trafficking) and under the INA provision for conviction of a state law relating to a controlled substance.
- At successive proceedings the IJ and BIA disagreed on whether the Florida trafficking statute is divisible and whether Francisco’s conviction matched a federal aggravated-felony predicate under the categorical/modified-categorical framework.
- The IJ ultimately found Francisco eligible for cancellation by concluding, under the modified categorical approach and applying the Moncrieffe presumption, that the record indicated only the least culpable conduct (possession) and not an aggravated felony; the BIA reversed, concluding the statute was divisible and Francisco bore the burden to prove he was not convicted of an aggravated felony.
- On appeal the Eleventh Circuit, bound by this Court’s recent decision in Cintron holding the Florida trafficking provision (substantively identical language) is indivisible and lacks a categorical match to the federal Controlled Substances Act, held Francisco’s conviction cannot be an aggravated felony and remanded with vacatur of the BIA order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fla. Stat. § 893.135(1)(b)1.c is divisible (allowing the modified categorical approach) | Francisco conceded the statute criminalizes alternative crimes but argued record was inconclusive and Moncrieffe presumption applied to treat conviction as for least culpable conduct | Government argued the statute is divisible and at least some alternatives are aggravated felonies, so Francisco must prove he did not commit those offenses | Court held statute is indivisible (controlling precedent Cintron) and thus cannot categorically match a federal aggravated-felony drug offense |
| Whether Francisco’s conviction qualifies as an aggravated felony under INA §101(a)(43)(B) | Francisco argued the state statute lacks a categorical match to federal drug trafficking and the conviction therefore is not an aggravated felony | Government argued the state offenses include trading/dealing conduct that constitutes illicit trafficking and thus qualify | Held: Because the statute is indivisible and lacks categorical match to the CSA, the conviction is not an aggravated felony |
| Burden of proof for eligibility for cancellation when record is inconclusive | Francisco argued Moncrieffe presumption requires treating conviction as least culpable if Shepard documents are inconclusive | Government argued alien seeking cancellation bears the burden to prove eligibility, including that he was not convicted of an aggravated felony | The court did not resolve the circuit split on application of Moncrieffe in divisible-statute cases because Cintron made § 893.135 indivisible; outcome favored Francisco on statute’s status (so he met statutory eligibility requirement) |
| Remedy and next steps | Francisco sought vacatur of BIA removal order and remand for further proceedings on discretionary relief | Government sought reinstatement of removal and denial of cancellation | Held: BIA decision vacated and case remanded for further proceedings consistent with holding that the conviction is not an aggravated felony; BIA will address remaining discretionary issues on remand |
Key Cases Cited
- Taylor v. United States, [citation="495 U.S. 575"] (establishes categorical approach; courts look only to statutory elements)
- Shepard v. United States, [citation="544 U.S. 13"] (limited documents may be used to identify offense of conviction under modified categorical approach)
- Descamps v. United States, [citation="570 U.S. 254"] (distinguishes divisible statutes from alternative means; limits modified categorical approach)
- Johnson v. United States, [citation="559 U.S. 133"] (presumption that conviction rests on least culpable conduct when record is inconclusive)
- Moncrieffe v. Holder, [citation="569 U.S. 184"] (applies categorical framework in immigration context and explains presumption and burdens)
- Lopez v. Gonzales, [citation="549 U.S. 47"] (state conviction counts as aggravated felony only if conduct is punishable as felony under federal law)