914 F.3d 1292
11th Cir.2019Background
- Shariff Bula Lopez, a Colombian national and lawful permanent resident since 1993, pled guilty in Florida (1997) to an offense described in most records as "possession with intent to deliver" flunitrazepam; sentencing and plea documents refer to intent-to-deliver, but the charging information cites the simple-possession statute.
- Upon return to the U.S. in 2010 he was placed in removal proceedings; DHS charged removability for (1) a crime involving moral turpitude (CIMT) and (2) a controlled-substance violation based on the 1997 conviction.
- The IJ found the conviction was for possession with intent to deliver (Fla. Stat. § 893.13(1)(a)), sustained the CIMT charge, but concluded flunitrazepam was not in the CSA and thus did not sustain the controlled-substance charge.
- On appeal the BIA affirmed the CIMT finding, rejected the IJ’s statement that flunitrazepam was not federally controlled (noting it is listed at 21 C.F.R. § 1308.14(c)(23)), and concluded Lopez was removable for a controlled-substance violation; the BIA also denied a remand to seek a § 212(h) waiver as the conviction was an aggravated felony.
- Lopez petitioned for review in this Court, challenging: (1) the BIA’s finding that the statute of conviction was intent-to-deliver (arguing record ambiguity), (2) the BIA’s consideration of DHS’s controlled-substance argument without a cross-appeal, and (3) the BIA’s conclusion that flunitrazepam is a controlled substance and an aggravated-felony basis for denying § 212(h) relief.
Issues
| Issue | Lopez's Argument | DHS's Argument | Held |
|---|---|---|---|
| 1. Whether record is ambiguous such that BIA erred finding conviction for possession with intent to deliver (vs. simple possession) | Record cites simple-possession statute once; so conviction ambiguous and government failed to prove statute of conviction | Multiple documents (guilty plea, plea transcript, sentencing, arrest affidavit) consistently describe "possession with intent to deliver," supporting BIA finding | Substantial evidence supports BIA’s finding of intent-to-deliver; court dismisses this claim for lack of jurisdiction as INA § 242 bars review of controlled-substance removals absent constitutional/question of law |
| 2. Whether BIA may consider DHS’s alternative ground (controlled-substance violation) without DHS cross-appealing | BIA could not adopt a ground not advanced by DHS via cross-appeal | Appellee may defend judgment on any ground in the record; DHS sought same relief (removal) so no cross-appeal required | BIA did not err; Jennings principle allows appellee to defend judgment on alternative grounds in the record |
| 3. Whether flunitrazepam is a "controlled substance" for INA purposes and thus makes conviction a controlled-substance violation and an aggravated felony (affecting § 212(h) waiver eligibility) | Flunitrazepam not listed in the original CSA schedules in 21 U.S.C. § 812, so not a controlled substance for INA purposes | CSA delegates scheduling updates to Attorney General/DEA; updated schedules are incorporated via 21 U.S.C. § 802 and published at 21 C.F.R. pt. 1308 where flunitrazepam appears as Schedule IV | BIA correctly concluded flunitrazepam is a controlled substance (listed in 21 C.F.R. § 1308.14); Lopez is removable on that basis and is ineligible for § 212(h) waiver; petition denied on merits |
Key Cases Cited
- Seck v. U.S. Attorney General, 663 F.3d 1356 (11th Cir.) (review limited to BIA decision when BIA issues its own opinion)
- Gonzalez v. U.S. Attorney General, 820 F.3d 399 (11th Cir.) (standards for de novo review of legal questions and substantial-evidence review of factual findings)
- Indrawati v. U.S. Attorney General, 779 F.3d 1284 (11th Cir.) (definition and application of substantial-evidence review)
- Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir.) (jurisdictional inquiry may merge with merits when government must prove qualifying conviction)
- Garces v. U.S. Attorney General, 611 F.3d 1337 (11th Cir.) (courts determine underlying factual questions that establish jurisdiction)
- Jennings v. Stephens, 135 S. Ct. 793 (2015) (appellee may defend judgment on alternative grounds in the record without filing a cross-appeal)