JOSE EMILIO ULLOA FRANCISCO, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent.
No. 15-13223
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
March 12, 2018
Agency No. A045-874-205. [PUBLISH]. Petition for Review of a Decision of the Board of Immigration Appeals.
Before TJOFLAT and WILSON, Circuit Judges, and ROBRENO,* District Judge.
The Armed Career Criminal Act (“ACCA“) provides that a person convicted of violating
documents, do not identify the offense of conviction, the Government has failed to carry its burden of proof, and it is presumed that the conviction was for an offense that did not qualify as a violent felony.3 Johnson v. United States, 559 U.S. 133, 137, 130 S. Ct. 1265, 1269 (2010).
This same presumption applies in proceedings brought by the Attorney General (“AG“) under the Immigration and Nationality Act (“INA“) to remove an alien from the United States on the ground that the alien, after admission into the country, had been convicted of an offense designated in the INA. See INA § 237(a)(2);
191-92, 133 S. Ct. 1678, 1684-85 (2013). If the AG fails to do so, it is presumed that the alien was convicted of a non-designated offense. Id. This is referred to as the Moncrieffe presumption. See, e.g., Sauceda v. Lynch, 819 F.3d 526, 531-32 (1st Cir. 2016).
In the case before us, the AG proved that the alien, a lawful permanent resident, was removable for having been convicted of a felony related to drug trafficking. INA § 237(a)(2)(B)(i),
The state statute under which the alien had been convicted created the felony of “trafficking in cocaine,” which was defined to include the selling, purchasing, manufacturing, delivering, or possessing of cocaine, or the bringing of cocaine into Florida.
The Board of Immigration Appeals (“BIA“) agreed that the state statute created separate crimes, some of which were aggravated felonies and some of which were not. It then rejected the alien‘s argument—holding that he had the burden to prove that his conviction was not for an aggravated felony—and denied his application for cancellation of removal. The alien now petitions us to review the BIA‘s decision. A recent decision of this Court binds us to hold that the alien did not commit an aggravated felony because the state statute under which he was convicted is neither divisible nor has a categorical match in the Controlled Substance Act (“CSA“). See Cintron v. U.S. Attorney Gen., No. 15-12344, 2018
WL 947533, at *6 (11th Cir. Feb. 20, 2018). We therefore grant the alien‘s petition, vacate the BIA‘s decision, and remand the case for further proceedings.
The INA authorizes the AG to remove from the United States any alien who, at any time after admission, was convicted of certain felonies, including the violation of a law “relating to a controlled substance” and the commission of an “aggravated felony.” INA § 237(a)(2)(A)(iii), (a)(2)(B)(i);
If an immigration court issues an order of removal, a permanent resident may petition the AG to cancel the removal. INA § 240A(a);
both to establish these “eligibility requirements” and to show that he or she “merits a favorable exercise of discretion,”7 INA § 240(c)(4)(A),
The INA defines the term “aggravated felony” in a seemingly interminable list of offenses. See INA § 101(a)(43);
defined under federal law.9 INA § 101(a)(43)(B);
The Supreme Court has constructed a framework—with roots in both immigration and criminal law—to determine when a state crime constitutes an aggravated felony. See Mellouli v. Lynch, 575 U.S. —, 135 S. Ct. 1980, 1986-87 (2015). The framework was designed for cases in which the Government seeks the removal of an alien under INA § 237(a)(2)(A)(iii),
has to decide whether the alien‘s state conviction qualified as one.10 The framework presents two approaches: the categorical approach, which poses a question of law,11 and the modified categorical approach, which poses a mixed question of law and fact.12 We discuss each approach in turn.
A.
The categorical approach is used to decide whether the alien‘s state conviction is of an offense “comparable to an offense listed in the INA.” Moncrieffe, 569 U.S. at 190, 133 S. Ct. at 1684. Under this approach, “the facts” underlying the conviction are ignored. Id. The immigration court looks “instead to whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” Id. (quoting Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 186, 127 S. Ct. 815, 818 (2007)). The question is whether “the state statute shares the nature of the federal
offense that serves as a point of comparison.” Moncrieffe, 569 U.S. at 190, 133 S. Ct. at 1684. This involves a comparison of the elements of the state offense and the federal offense to see
The Supreme Court developed the categorical approach to promote efficiency in removal proceedings by prohibiting the relitigation of “past convictions in minitrials conducted long after the fact.” Moncrieffe, 569 U.S. at 200-01, 133 S. Ct. at 1690. The approach eliminates the necessity of a factual inquiry that would unduly burden the administration of immigration law, especially given that the alien‘s conviction may have occurred years prior to the removal proceeding. Mellouli, 575 U.S. at —, 135 S. Ct. at 1986-87. The categorical approach also “enables aliens to anticipate the immigration consequences of guilty pleas in criminal court.” Id. at 1987 (quotation omitted).
B.
The Supreme Court has modified the categorical approach where the criminal statute is “a so-called ‘divisible statute.‘” Descamps, 570 U.S. at 257, 133 S. Ct. at 2281. A divisible statute is one that “sets out one or more elements of the
offense in the alternative.” Id.; see Donawa v. U.S. Attorney Gen., 735 F.3d 1275, 1281 (11th Cir. 2013) (stating that a statute is divisible when it “lists a number of alternative elements that effectively create several different crimes“). In Mathis v. United States, the Supreme Court made clear that the modified categorical approach applies only to statutes that list alternative elements and so create multiple crimes, not to statutes that list alternative means through which to satisfy a single element.13 136 S. Ct. at 2247-48.
Thus, if a statutory offense merely lists alternative means to commit an element of a single crime, a court must perform the categorical analysis and “ask only whether the elements of the state crime and generic offense make the requisite match.”14 Id. at 2256 (emphasis in original). To determine whether a statute contains alternative elements or means, a court may look at the statutory text and “authoritative sources of state law.” Id. However, “if state law fails to provide clear answers, federal judges have another place to look: the record of a prior
conviction itself.” Id. Where an indictment reiterates “all the terms of” a statute with alternatives, it “is as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt.” Id. at 2257.
After the Government has presented these items and established the crime the alien committed, the court must “do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.”15 Descamps, 570 U.S. at 257, 133 S. Ct. at 2281. Therefore, the modified categorical approach allows the
court to consider a limited set of documents to identify the crime of conviction and thus “implement the categorical approach.” Id. at 263, 133 S. Ct. at 2285.
II.
Jose Emilio Ulloa Francisco is a native and citizen of the Dominican Republic. He was admitted into the United States as a permanent resident on October 5, 1997.
On January 13, 2010, Francisco was arrested by the North Miami Beach Police Department in a sting operation after he gave an undercover police officer $30,000 as partial payment for ten kilograms of cocaine at a price of $21,000 per kilogram.16 Four weeks later, on February 3, the Assistant State Attorney of Miami-Dade County filed a two-count Information in the Miami-Dade County Circuit Court charging Francisco with drug trafficking. Count 1 alleged that Francisco violated
purchase, manufacture, deliver, or bring cocaine into Florida or to knowingly possess cocaine. Count 2 alleged that Francisco violated
2012, Francisco pled guilty to both counts pursuant to a plea agreement. The Circuit Court sentenced him to concurrent prison terms of three years to be followed by a three-year term of probation and imposed a fine of $250,000.18
On September 13, 2012, the Government served Francisco with a Notice to Appear (“NTA“). Based on his conviction on Count 1 of the Information, the NTA alleged that Francisco was removable under INA § 237(a)(2)(A)(iii),
It is a first degree felony under
Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.
A hearing on the removal charge was scheduled to come before an immigration judge (“IJ“) on February 27, 2013. The hearing, however, was rescheduled for April 24, 2013. During the hearing in April, Francisco‘s attorney challenged the NTA charge, contending that Francisco‘s Count 1 conviction did not meet the INA definition of an aggravated felony. The IJ ordered
In the August hearing, the IJ, after considering the parties’ briefs and arguments, decided that the Count 1 conviction constituted a drug trafficking crime, and therefore an aggravated felony, because it was comparable to an offense in INA § 101(a)(43)(B),
Torture (“CAT“).22 The IJ continued the removal proceeding to November 27, 2013, to enable counsel to make the case for CAT relief.
On November 27, the IJ rendered her decision from the bench in open court. The IJ reiterated the conclusion she had reached in August that the Count 1 conviction was a drug trafficking crime and therefore an aggravated felony. She held that Francisco was ineligible for cancellation of removal for that reason. The IJ also ruled that Francisco was “ineligible to seek political asylum or withholding of removal” under the CAT.
Francisco appealed the IJ‘s decision to the BIA on December 20, 2013. He argued that his conviction could not amount to an aggravated felony because
The BIA vacated the IJ‘s decision on April 28, 2014. It did so after concluding that
should have used the modified categorical approach instead. Since the IJ erred in this way, the BIA remanded the case with the instruction that the IJ employ the modified categorical approach in resolving the aggravated felony issue.
On June 20, 2014, the Government amended the NTA to assert an additional ground of removability against Francisco. The amendment alleged that Francisco was removable for violating a “law or regulation of a State . . . relating to a controlled substance,” INA § 237(a)(2)(B)(i),
The IJ responded to the BIA‘s remand on July 2, 2014. She ignored the BIA‘s instruction to apply the modified categorical approach in determining whether Francisco had been convicted of a crime with an analogue in the INA‘s definition of “aggravated felony.” She instead applied the categorical approach once more. This time, however, the IJ concluded that Francisco‘s conviction under
Applying that approach, the IJ observed that
federal custody there. Though the appropriate venue lay elsewhere, the IJ rescinded the removal order and certified her decision to the BIA.
In arriving at her July 2, 2014 decision, the IJ did not consider the Government‘s June 20, 2014 amendment to the NTA, which alleged an alternative ground of removability—namely that Francisco was removable for violating a “law or regulation of a State . . . relating to a controlled substance.” INA § 237(a)(2)(B)(i);
On December 18, 2014, Francisco‘s attorney filed on Francisco‘s behalf an Application for Cancellation of Removal for Certain Permanent Residents. In the application,
The purpose of the hearing on January 13 was to determine whether Francisco was removable on the NTA‘s alternative ground and, if so, whether his
application for cancellation of removal should be granted. The IJ agreed with the Government that Francisco‘s conviction under
In an effort to prove that the conviction was not an aggravated felony, Francisco testified. The following is the gist of his testimony. Jeson Rosa, whom Francisco had known as a “friend” for seventeen years, introduced him to a “guy” and said, “I want you to do this for me.” When Francisco asked what it was, Rosa said that he wanted Francisco to purchase a “packet” and “deliver” it to the man he had just met. Rosa gave Francisco $30,000, the amount needed for the purchase, and the man, whom Francisco soon discovered was an undercover police officer, drove him to “a warehouse.” They went inside the warehouse office, where “[t]hey showed [him] a pack of cocaine.” Francisco gave them the $30,000. He was immediately arrested.
The arresting officers asked him if he “wanted to [cooperate], work with them.” Francisco felt “nervous” and “called Jeson Rosa for them but [Rosa] never
appeared.”27 When the arresting officers asked Francisco if he knew what he was doing when he gave them $30,000 for the package, he responded: “You know, I ha[d] an idea what I was doing.” He was attempting to purchase a large amount of cocaine.
Nevertheless, the IJ applied the modified categorical approach and invoked the Moncrieffe presumption to conclude that Francisco had been convicted of mere possession of cocaine,28 the least serious conduct criminalized by
The Government appealed the IJ‘s decision to the BIA. In its brief, it asserted two grounds for reversal. The first ground was that Francisco failed to
prove his eligibility for cancellation of removal by establishing that his conviction under
The Government‘s second ground for reversal was that the IJ abused his discretion in finding that Francisco merited relief given the seriousness of the conduct for which he had been convicted.
In his brief, Francisco conceded that he was removable for having been convicted for violating a law relating to a controlled substance offense. He also conceded that
“criminalizes conduct punishable as a felony under the CSA, such as the sale, purchase, or manufacture of cocaine and some conduct that is not, such as simple possession.” He submitted that because the record was not clear as to whether he had been convicted of purchasing cocaine with intent to distribute, and thus of committing an aggravated felony, the IJ did not err in invoking the Moncrieffe presumption and finding that his conviction was for mere possession of cocaine—an offense having no analogue among the offenses the INA designates as aggravated felonies.32 According to Francisco, Moncrieffe required the IJ, and thus the BIA, to “presume that [his] conviction rested on nothing but the least culpable conduct” criminalized in
On June 18, 2015, the BIA overturned the IJ‘s decision and reinstated the removal finding. Once again, the BIA found that the modified categorical approach applies to
that do not.34 After determining
III.
Throughout this litigation, the parties and the BIA have agreed that the modified categorical approach applies to
divisible statute.35 In Cintron v. U.S. Attorney Gen., however, a panel of this Court recently held that
The consequence
SO ORDERED.
Notes
[A]ny of the following documents or records (or a certified copy of such an official document or record) shall constitute proof of a criminal conviction:
(i) An official record of judgment and conviction.
(ii) An official record of plea, verdict, and sentence.
(iii) A docket entry from court records that indicates the existence of the conviction.
(iv) Official minutes of a court proceeding or a transcript of a court hearing in which the court takes notice of the existence of the conviction.
(v) An abstract of a record of conviction prepared by the court in which the conviction was entered, or by a State official associated with the State‘s repository of criminal justice records, that indicates the charge or section of law violated, the disposition of the case, the existence and date of conviction, and the sentence.
(vi) Any document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of a conviction.
(vii) Any document or record attesting to the conviction that is maintained by an official of a State or Federal penal institution, which is the basis for that institution‘s authority to assume custody of the individual named in the record.
INA § 240(c)(3)(B);
INA § 240(c)(3)(A);In the proceeding the [Government] has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable. No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.
INA § 240A(a)(1)-(3);The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien—
(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,
(2) has resided in the United States continuously for 7 years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
INA § 240(c)(4)(A);An alien applying for relief or protection from removal has the burden of proof to establish that the alien—
(i) satisfies the applicable eligibility requirements; and
(ii) with respect to any form of relief that is granted in the exercise of discretion, that the alien merits a favorable exercise of discretion.
8 C.F.R. § 1240.8(d).Relief from removal. The respondent shall have the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion. If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.
The BIA has defined “illicit trafficking in a controlled substance.” See Matter of Davis, 20 I. & N. Dec. 536, 540-41 (BIA 1992). The term “illicit” means “not permitted or allowed; prohibited; unlawful; as an illicit trade.” Id. at 541 (quotation omitted). It thus “simply refers to the illegality of the trafficking activity.” Id.
The BIA takes “[t]rafficking” to mean “[t]rading or dealing in certain goods.” Id. (quotation omitted). It has stated that trafficking is a term “commonly used in connection with illegal narcotic sales.” Id. (quotation omitted). “Essential to the term in this sense is its business or merchant nature, although only a minimum degree of involvement may be sufficient under the precedents of this Board to characterize an activity as ‘trafficking’ or a participant as a ‘trafficker.‘” Id.
The BIA therefore defined “illicit trafficking in a controlled substance” to be “unlawful trading or dealing of any controlled substance as defined in section 102 of the Controlled Substances Act.” Id. It further noted that illicit trafficking in a controlled substance includes any “drug trafficking crime” as defined in
[On January 13, 2010, at 3:10 PM], the defendant Jose Ulloa [Francisco] and an unknown co-defendant met with an undercover agent of the [North Miami Beach Police Department] to negotiate a cocaine deal. Ulloa & the co-defendant negotiated to purchase ten kilograms of cocaine for $21,000 per kilogram. At approximately 1510 hours, Ulloa arrived at the Pep Boys Parking lot, [295 N.E. 167th St. in North Miami Beach,] and showed the agent a large amount of U.S. currency. Ulloa responded to the NMBPD undercover location and gave the agent $30,000 in U.S. currency as a down payment for cocaine. Ulloa was placed under arrest for trafficking in cocaine. The total weight of kilogram including packaging was approximately 1027.4 grams. Ulloa was transported to NMBPD/DCJ for processing.
Count 1
JOSE E. FRANCISCO ULLOA, on or about January 13, 2010, in the County and State aforesaid, did unlawfully sell, purchase, manufacture, deliver, or bring into this state, or was knowingly in actual or constructive possession of cocaine, as described in s. 893.03(2)(a)4, Florida Statutes, or any mixture containing cocaine, in the amount of four-hundred (400) grams or more, but less than one-hundred and fifty (150) kilograms of cocaine, or any mixture containing cocaine, in violation of s. 893.135(1)(b)1.c, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
Count 2
And the aforesaid Assistant State Attorney, under oath, further information makes JOSE E. FRANCISCO ULLOA, on or about January 13, 2010, in the County and State aforesaid, did unlawfully and feloniously agree, conspire, combine or confederate with another person or persons, to wit: VICTOR, to commit a felony under the laws of the State of Florida, to wit: unlawful Trafficking in Cocaine, or any mixture containing cocaine, as described in s. 893.135(5) and s. 777.04(3) and s. 777.011, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, . . . but less than 150 kilograms of cocaine . . . commits a felony of the first degree, which felony shall be known as “trafficking in cocaine” . . . If the quantity involved . . . [i]s 400 grams or more, but less than 150 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $250,000.
INA § 237(a)(2)(B)(i);Any 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 802 of Title 21), other than a single offense involving possession for one‘s own use of 30 grams or less of marijuana, is deportable.
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
(b) 1. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as described in s. 893.03(2)(a)4., or of any mixture containing cocaine, but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first degree, which felony shall be known as “trafficking in cocaine,” punishable as provided in s. 775.082, s. 775.083, or s. 775.084. . . .
(c) 1. A person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any morphine, opium, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, . . . or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree, which felony shall be known as “trafficking in illegal drugs,” punishable as provided in s. 775.082, s. 775.083, or s. 775.084.