Matter of Gustavo Ribeiro FERREIRA, Respondent
U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided September 22, 2014
26 I&N Dec. 415 (BIA 2014)
Interim Decision #3815
FOR RESPONDENT: Mary Foden, Esquire, Hartford, Connecticut
FOR THE DEPARTMENT OF HOMELAND SECURITY: Amit Patel, Assistant Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.
PAULEY, Board Member:
In a decision dated August 21, 2013, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Brazil who was admitted to the United States as a lawful permanent resident on October 20, 2004. On March 11, 2010, he pled guilty to the “sale of certain illegal drugs” in violation of section 21a-277(a) of the Connecticut General Statutes Annotated. The criminal court sentenced the respondent to 5 years of confinement, suspended the execution of the sentence, and granted him 5 years of probation. The respondent also received a fine of $7,500. Based on this conviction, the Department of Homeland Security (“DHS“) charged
Both of these removability provisions incorporate the definition of a “controlled substance” in section 102 of the Controlled Substances Act (“CSA“), which is codified as
With regard to section 237(a)(2)(A)(iii) of the Act, the term “aggravated felony” in section 101(a)(43)(B) encompasses “illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code).” (Emphasis added.) An offense is a “drug trafficking crime” under
Section 237(a)(2)(B)(i) of the Act similarly provides that
[a]ny alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), other than a single offense involving possession for one‘s own use of thirty grams or less of marijuana, is deportable.
(Emphasis added.)
In support of the charges of removability, the DHS presented a copy of the respondent‘s criminal judgment, which states that he pled guilty to “sale of certain illegal drugs.” The DHS also submitted a plea colloquy providing that the respondent was pleading guilty to the “sale of narcotics.” Neither document identifies the specific narcotics by name.
The respondent filed a motion to terminate, arguing that the DHS had not established removability pursuant to the categorical approach. In this regard, the respondent observed that when he pled guilty in 2010, Connecticut‘s drug schedules regulated two obscure opiate derivatives (benzylfentanyl and thenylfentanyl) that have not been included in the Federal controlled substance schedules since 1986. He cited three cases that compared the Federal and Connecticut controlled substances schedules
Since the Connecticut schedules were broader than the Federal schedules at the time of his conviction, the respondent contended that section 21a-277(a) did not “necessarily” proscribe conduct that was an offense under the CSA, as required by Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). Moreover, he asserted that the record of conviction presented by the DHS did not provide a factual basis regarding the substance involved. Therefore, the respondent argued that the DHS did not satisfy its burden of proving removability by clear and convincing evidence pursuant to section 240(c)(3)(A) of the Act,
In his decision, the Immigration Judge did not apply the categorical approach, instead proceeding directly to the modified categorical approach. Relying on Gousse v. Ashcroft, 339 F.3d 91 (2d Cir. 2003), he concluded that the DHS met its burden of proof through submission of the plea colloquy, which establishes that the respondent‘s offense involved a narcotic substance. On appeal, the respondent argues that reversal and termination are required under Moncrieffe.2 The DHS has filed a motion for summary affirmance.
II. ANALYSIS
This case presents an issue that often confronts Immigration Judges and the Board in determining whether an alien is removable based on
Since the schedules of the CSA change frequently, they often do not match State lists of controlled substances, which are found in statutes and regulations that are amended with varying frequency. That was the case here, because Connecticut listed benzylfentanyl and thenylfentanyl as controlled substances in its regulations at the time of the respondent‘s 2010 conviction in violation of section 21a-277(a) of the Connecticut General Statutes Annotated, long after the 1985 removal of these two obscure substances from the Federal schedules. See also Sarah French Russell, Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing, 43 U.C. Davis L. Rev. 1135, 1205 n. 344 (2010) (enumerating other States in which benzylfentanyl and thenylfentanyl remain listed).
Connecticut amended its schedules to exclude benzylfentanyl and thenylfentanyl shortly after the publication of Madera, Lopez, and Cohens. In any event, the presence of these two substances in the Connecticut schedules at the time of the respondent‘s conviction meant that the definition of a controlled substance incorporated by section 21a-277(a) was broader than the definition of a controlled substance in
In Moncrieffe, the Court considered whether an alien‘s conviction for possession of marijuana with intent to distribute under Georgia law qualified as an aggravated felony conviction under section 101(a)(43)(B) of the Act, making him removable under section 237(a)(2)(A)(iii). The Court explained that the categorical approach requires looking not to the facts of a prior criminal case, but to “whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding” removal ground. Moncrieffe v. Holder, 133 S. Ct. at 1684 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)).
[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute‘s language. It requires a realistic probability, not a theoretical possibility that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.
Gonzales v. Duenas-Alvarez, 549 U.S. at 193. Although sometimes overlooked when determining removability,3 this “realistic probability test” is part of the initial inquiry that an Immigration Judge must undertake when applying the categorical approach.
Importantly for this case, the Court in Moncrieffe addressed the Government‘s concern that its holding would necessarily tend to preclude aliens from being removable based on an aggravated felony conviction for
Duenas-Alvarez requires that there be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” To defeat the categorical comparison in this manner, a noncitizen would have to demonstrate that the State actually prosecutes the relevant offense in cases involving antique firearms.
Id. (emphasis added) (citation omitted).
We applied this Supreme Court rule in Matter of Chairez, 26 I&N Dec. 349, 355−58 (BIA 2014). The respondent in Chairez asserted that the DHS had not established removability under section 237(a)(2)(C) of the Act because the Federal definition of the term “firearm” excludes “antique firearm[s],” as defined by
Therefore, the import of Moncrieffe and Duenas-Alvarez is that even where a State statute on its face covers a type of object or substance not included in a Federal statute‘s generic definition, there must be a realistic probability that the State would prosecute conduct falling outside the
With that background, we now address the respondent‘s removability under sections 237(a)(2)(A)(iii) and (B)(i) of the Act. The Act and the regulations provide that the DHS bears the burden of proving removability by clear and convincing evidence. Section 240(c)(3)(A) of the Act;
Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned . . . .
The evidence submitted by the DHS establishes that the respondent was convicted under a State statute proscribing conduct that is an offense under the CSA: possession of a controlled substance with intent to distribute. See
Invoking the categorical approach, the respondent argues that section 21a-277(a) did not “necessarily” proscribe conduct that was an offense under the CSA when he pled guilty in 2010 because Connecticut‘s drug schedules regulated two obscure opiate derivatives (benzylfentanyl and thenylfentanyl) that have not been included in the Federal schedules since 1986. However, the categorical approach requires us to first apply the realistic probability test.
Under that test, for the proceedings to be terminated based on this discrepancy between the Connecticut and Federal schedules, Connecticut must actually prosecute violations of section 21a-277(a) in cases involving benzylfentanyl and thenylfentanyl. See Moncrieffe v. Holder, 133 S. Ct. at 1693; Gonzales v. Duenas-Alvarez, 549 U.S. at 193; see also United States v. Carrasco-Tercero, 745 F.3d at 197−98. Thus, a motion to terminate should be granted if the respondent can, as stated in Duenas-Alvarez, 549 U.S. at 193, “at least point to his own case or other cases in which the [Connecticut] state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.”
The Immigration Judge did not apply the realistic probability test but instead sustained the charges under the modified categorical approach because the plea colloquy states that the respondent pled guilty to the “sale of narcotics.” In this regard, the Immigration Judge erred because even assuming that section 21a-277(a) of the Connecticut General Statutes Annotated is divisible, both pertinent substances not listed in the Federal schedules are narcotics. See 50 Fed. Reg. 43,698, 43,698−99 (Oct. 29, 1985); McCoy v. United States, 707 F.3d at 187–88. Therefore, the modified categorical approach is unavailing in this case.
However, as explained above, the “realistic probability” test must be applied as part of the categorical approach, but it was not applied by the Immigration Judge. Since such application requires fact-finding, we will remand the record to the Immigration Judge for application of the realistic probability test, as described in Moncrieffe and Duenas-Alvarez. On remand, the parties may submit additional evidence and argument, which may include evidence of Connecticut prosecutions (or the lack thereof) for possession or sale of benzylfentanyl and thenylfentanyl, or evidence that the respondent‘s conviction involved these obscure substances, rather than those included on the Federal schedules.
ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.