26 I. & N. Dec. 365
BIA2014Background
- Respondent: Venezuelan lawful permanent resident convicted (Dec. 2006) of selling cocaine under Fla. Stat. § 893.13(1)(a)(1) (second-degree felony); additional later drug convictions noted.
- DHS charged removability including an aggravated-felony allegation under INA § 101(a)(43)(B) for “illicit trafficking in a controlled substance.”
- Florida amended Fla. Stat. § 893.101 to eliminate knowledge of the illicit nature of the substance as an element, retaining knowledge of the substance’s presence and providing an affirmative defense for ignorance of illegality.
- Eleventh Circuit in Donawa held Fla. § 893.13(1)(a) is broader than federal 21 U.S.C. § 841(a) and therefore not a categorical match to federal “drug trafficking crime,” but remanded for the Board to consider the separate “illicit trafficking” clause.
- The Board analyzed whether “illicit trafficking” requires knowledge of illegality, whether Fla. § 893.13(1)(a)(1) involves a commercial/trafficking element, applied the modified categorical approach to the record, and addressed consequences for relief eligibility.
Issues
| Issue | Respondent’s Argument | DHS’s Argument | Held |
|---|---|---|---|
| Whether conviction under Fla. § 893.13(1)(a)(1) is an aggravated felony under INA § 101(a)(43)(B) as “illicit trafficking.” | Respondent: Florida statute lacks required mens rea and so cannot be an aggravated felony. | DHS: Florida sale-of-cocaine conviction involves commercial dealing and qualifies as illicit trafficking. | Held: Conviction for selling cocaine under § 893.13(1)(a)(1) is an aggravated felony under the illicit-trafficking clause. |
| Whether the phrase “illicit trafficking” requires knowledge of the substance’s illegal nature. | Respondent: “Illicit” implies mens rea of knowledge of illegality; Florida statute’s omission prevents immigration aggravated-felony classification. | DHS: No specific mens rea required; Congress intended broad scope; statutes may be public-welfare style. | Held: No mens rea for knowledge of illicit nature is required for “illicit trafficking” when statute still requires knowledge of presence and allows an affirmative defense for ignorance of illegality. |
| Whether Fla. § 893.13(1)(a) is divisible and whether the respondent’s conviction met the trafficking (commercial) element. | Respondent: Statute covers multiple conduct including noncommercial manufacturing or personal-use conduct. | DHS: Sale conviction (record shows sale to CI) is a commercial transaction and divisible statute permits modified categorical inquiry. | Held: Statute is divisible; record shows sale of cocaine (commercial), so modified categorical approach establishes a categorical match to illicit trafficking. |
| Effect on relief (cancellation, asylum, withholding, CAT deferral). | Respondent: Sought cancellation of removal, asylum, withholding, and CAT protection/deferral. | DHS: Aggravated-felony conviction bars cancellation/asylum; bars withholding as a particularly serious crime; CAT deferral still possible. | Held: Aggravated-felony determination bars cancellation and asylum; withholding denied as particularly serious; remand for further findings on CAT deferral (insufficient IJ analysis). |
Key Cases Cited
- Donawa v. U.S. Att’y Gen., 735 F.3d 1275 (11th Cir. 2013) (Eleventh Circuit found Fla. § 893.13(1)(a) broader than federal § 841(a) and remanded to the Board to consider the “illicit trafficking” clause)
- Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (modified categorical approach and divisibility analysis guidance)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (categorical approach and realistic probability of conviction test)
- Lopez v. Gonzales, 549 U.S. 47 (U.S. 2006) (interpretation of federal drug offenses in removal context)
- United States v. Balint, 258 U.S. 250 (U.S. 1922) (public-welfare offenses and mens rea considerations)
- United States v. Castleman, 134 S. Ct. 1405 (U.S. 2014) (waiver of divisibility issue)