909 F.3d 388
11th Cir.2018Background
- Petitioner Shariff Bula Lopez, a Colombian national and lawful permanent resident since 1993, pled guilty in Florida in 1997 to an offense described as "possession with intent to deliver" flunitrazepam and received probation.
- On return to the U.S. in 2010 he was served with an NTA charging removability for (1) a crime involving moral turpitude (CIMT) and (2) a state controlled-substance violation; both grounded in the 1997 conviction.
- The IJ found the conviction was for possession with intent to deliver under Fla. Stat. § 893.13(1)(a) (not mere possession under § 893.13(6)(a)), sustained the CIMT ground, but concluded flunitrazepam was not in the CSA schedules so did not sustain the controlled-substance ground.
- On appeal the BIA affirmed: it found clear-and-convincing evidence the conviction was for intent to deliver, held the conviction was a CIMT, and—contrary to the IJ—concluded flunitrazepam is a Schedule IV controlled substance listed in 21 C.F.R. § 1308.14(c)(23), so the controlled-substance ground also supported removal.
- The BIA denied remand to pursue an INA § 212(h) waiver, concluding the offense was a drug-trafficking crime and therefore an aggravated felony, making § 212(h) unavailable.
- Lopez petitioned for review; the Eleventh Circuit dismissed review of the factual statute-of-conviction finding for lack of jurisdiction but entertained and decided the remaining legal questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether record shows conviction was possession with intent to deliver (statute of conviction) | Lopez: records are ambiguous; IJ applied wrong (preponderance) standard; conviction may be simple possession under § 893.13(6)(a) | DHS: record consistently describes offense as possession with intent to deliver under § 893.13(1)(a) | Court: substantial evidence supports BIA finding of intent to deliver; petition as to this factual finding dismissed for lack of jurisdiction |
| Whether DHS/BIA could rely on controlled-substance ground on appeal without filing a cross-appeal | Lopez: BIA may not consider an alternative ground not relied on by the IJ because DHS did not cross-appeal | DHS: may defend the IJ’s removal order on any ground supported by the record | Court: Jennings principle applies—an appellee need not cross-appeal to argue an alternative ground that would afford the same relief; BIA did not err |
| Whether flunitrazepam is a "controlled substance" for INA removal, and consequences for CIMT/aggravated-felony and § 212(h) waiver eligibility | Lopez: flunitrazepam not in original CSA schedules at 21 U.S.C. § 812, so not a controlled substance for INA purposes; thus no controlled-substance removability and possibly not an aggravated felony (so § 212(h) relief should be permitted) | DHS/BIA: definition of controlled substance incorporates updated schedules published in 21 C.F.R. § 1308; flunitrazepam is listed as Schedule IV; thus removal and aggravated-felony determination stand | Court: BIA correctly treated flunitrazepam as a Schedule IV controlled substance via the incorporated C.F.R. schedules; removal under the controlled-substance ground and aggravated-felony determination affirmed; § 212(h) remand denied |
Key Cases Cited
- Seck v. U.S. Att’y Gen., 663 F.3d 1356 (11th Cir.) (we review BIA decision when BIA issues its own decision)
- Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. en banc) (standard for reviewing BIA fact findings and jurisdictional merger principles)
- Garces v. U.S. Att’y Gen., 611 F.3d 1337 (11th Cir. 2010) (jurisdictional inquiry can merge with merits to resolve factual predicate of jurisdiction)
- Indrawati v. U.S. Att’y Gen., 779 F.3d 1284 (11th Cir. 2015) (substantial-evidence standard for BIA fact findings)
- Gonzalez v. U.S. Att’y Gen., 820 F.3d 399 (11th Cir. 2016) (review standards for BIA legal conclusions and factual determinations)
- Jennings v. Stephens, 135 S. Ct. 793 (2015) (appellee may defend lower-court judgment on alternative grounds in the record without cross-appeal)
- Lopez v. Gonzales, 549 U.S. 47 (2006) (state drug offenses are aggravated felonies if elements match a federal drug offense punishable by >1 year)