Matter of L-G-H-, Respondent
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided August 15, 2014
26 I&N Dec. 365 (BIA 2014)
Interim Decision #3809
Sale of a controlled substance in violation of section 893.13(1)(a)(1) of the Florida Statutes, which lacks a mens rea element with respect to the illicit nature of the substance but requires knowledge of its presence and includes an affirmative defense for ignorance of its unlawful nature, is an “illicit trafficking” aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(43)(B) (2012).
FOR RESPONDENT: Jesus Novo, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Elizabeth A. S. Thaler, Associate Legal Advisor
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.
PAULEY, Board Member:
In a decision dated September 4, 2013, an Immigration Judge found the respondent removable and denied his application for cancellation of removal under section 240A(a) of the Immigration and Nationality Act,
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Venezuela who was first admitted to the United States as a nonimmigrant visitor on April 28, 1989.
On December 1, 2006, the respondent was convicted of selling cocaine in violation of section 893.13(1)(a)(1) of the Florida Statutes. On the same day, he was convicted of possession of cocaine in violation of section 893.13(6)(a) of the Florida Statutes. Again on January 9, 2009, the respondent was convicted of both possession of cannabis with intent to sell, manufacture, or deliver in violation of section 893.13(1)(a)(2) of the Florida Statutes and of use or possession of drug paraphernalia in violation of section 893.147(1).
Based on these convictions, the Department of Homeland Security (“DHS“) issued a notice to appear, charging that the respondent was removable under sections 237(a)(2)(A)(ii) and (B)(i) of the Act,
At his removal hearing, the respondent admitted the factual allegations and conceded the charges in the notice to appear, but he denied the lodged charge that he was convicted of an aggravated felony. Based on the respondent‘s convictions and his concession of removability, the Immigration Judge found him removable as an alien convicted of a controlled substance violation.1 He further determined that the respondent was convicted of an aggravated felony based on his conviction for selling cocaine. The Immigration Judge also denied each of the respondent‘s applications for relief from removal. On appeal, the respondent argues that the Immigration Judge erred in finding that his convictions were for aggravated felonies and in denying his applications for relief. A panel of the Board held oral argument on March 6, 2014.2
Section 101(a)(43)(B) of the Act includes within the definition of an aggravated felony
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).
Prior to the enactment of section 893.101 of the Florida Statutes, the Florida Supreme Court held that the “guilty knowledge” element of the crime of possession of a controlled substance contained two aspects: knowledge of the presence of the substance and knowledge of its illicit nature. Scott v. State, 808 So. 2d 166, 169-70 (Fla. 2002); Chicone v. State, 684 So. 2d 736, 738, 745-46 (Fla. 1996). In 2002, the Florida legislature found those cases to be contrary to legislative intent and expressly eliminated knowledge of the substance‘s illicit nature as an element of controlled substance offenses.
This change was evidently intended to help facilitate the prosecution of drug offenses in Florida. However, for purposes of the immigration laws, the amendment had the effect of preventing drug trafficking offenses in Florida from qualifying as aggravated felonies under the “drug trafficking crime” clause of section 101(a)(43)(B) of the Act. See Donawa v. U.S. Att‘y Gen., 735 F.3d 1275 (11th Cir. 2013). In that case, the United States Court of Appeals for the Eleventh Circuit held that because Florida law eliminated knowledge of the illicit nature of the controlled substance as a required element of the offense of drug trafficking under section 893.13(1)(a), that statute is now broader than the corresponding Federal crime at
However, the court expressly declined to consider the possibility that such an offense could be an aggravated felony under the “illicit trafficking” clause of section 101(a)(43)(B), and it remanded the case to the Board to consider the question. Donawa v. U.S. Att‘y Gen., 735 F.3d at 1283-84. See generally Matter of Sanchez-Cornejo, 25 I&N Dec. 273, 274 (BIA 2010) (stating that under section 101(a)(43)(B) of the Act, the “illicit trafficking” clause of the aggravated felony definition is distinct from the “drug trafficking crime” clause). This case addresses that question. For the reasons that follow, we conclude that the respondent‘s conviction for selling cocaine in violation of section 893.13(1)(a)(1) of the Florida Statutes is for an aggravated felony under the illicit trafficking clause of section 101(a)(43)(B) of the Act.
III. ANALYSIS
A. “Illicit Trafficking”
The phrase “illicit trafficking” is not defined in the Act, but we have determined that Congress used the term to include “any state, federal, or qualified foreign felony conviction involving the unlawful trading or dealing” in a controlled substance as defined by Federal law. Matter of Davis, 20 I&N Dec. 536, 540-41 (BIA 1992) (emphasis added), modified on other grounds, Matter of Yanez, 23 I&N Dec. 390 (BIA 2002). The record establishes that the respondent was convicted of a State felony involving cocaine, a federally controlled substance.5 Thus, the conviction
There is no express mens rea requirement included in the term “illicit trafficking” in section 101(a)(43)(B). Since the phrase “including a drug trafficking crime” in section 101(a)(43)(B) is set forth as a subset of “illicit trafficking,” Congress must have intended that “illicit trafficking” would encompass other controlled substance offenses beyond those defined to be a “drug trafficking crime” in
It is clear that when Congress revised the Act in 1990, it intended to expand, rather than limit, the removal of aliens convicted of drug offenses. See Matter of Esqueda, 20 I&N Dec. 850, 853-54 & n.3 (BIA 1994). We have no reason to believe that Congress intended to impose a specific knowledge requirement, and thus exclude a State drug trafficking crime from the aggravated felony definition, solely because it does not require knowledge of the illicit nature of the substance involved.
The Supreme Court has long recognized the constitutional validity of statutes related to public welfare offenses, such as the illegal dealing of narcotics, even though they lack a mens rea requirement. See, e.g., United States v. Balint, 258 U.S. 250, 251-52 (1922) (holding that the general rule requiring proof of criminal intent has been modified for certain statutes that would otherwise be rendered ineffective by such a rule); Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 67-68 (1910) (holding that the due process clause of the Fourteenth Amendment does not require a State to prove intent for statutes implicating the “public welfare“); see also United States v. Dominguez, 661 F.3d 1051, 1068-69 (11th Cir. 2011) (holding that to require a mens rea element contrary to the plain language of a statute and its legislative history could “functionally eliminate” its purpose); State v. Adkins, 96 So. 3d at 422-23 (upholding the
As we held in Matter of Davis, the term “illicit” is defined as “not permitted or allowed; prohibited; unlawful; as an illicit trade.” 20 I&N Dec. at 541 (quoting Black‘s Law Dictionary 673 (5th ed. 1979)). Thus, we gave effect to this plain meaning to construe the term “illicit” as simply referencing the illegality of the trafficking activity. Id. In deciding this aspect of Matter of Davis, we referred without further explanation to the Tenth Circuit‘s holding in Bassett v. U.S. INS, 581 F.2d 1385, 1388 (10th Cir. 1978), which set forth a similar definition for the term “illicit,” although the State statute of conviction required some level of intentional conduct. However, Davis did not decide whether an “illicit” act requires knowledge of the unlawful nature of the controlled substance. It also did not suggest such a mens rea requirement, because a person can engage in the unlawful or illicit trading or dealing in a controlled substance without knowing that the controlled substance that is the subject of the transaction is illegal.
We now expressly hold that there is no such mens rea required by the term “illicit,” at least not within the context of the statutory scheme established by Florida, where knowledge of the substance is still required and an affirmative defense is available to show lack of knowledge of the illegal nature of the substance. To the extent there may have been ambiguity in our prior holdings with regard to whether the term “illicit” implies an intentional state of mind, we explicitly hold that it does not. See Matter of Esqueda, 20 I&N Dec. at 862 (withdrawing from prior precedent decisions “to the extent they indicate that aliens convicted under a statute without any element of scienter are not subject to exclusion or deportation“).
The DHS has argued that even a purely strict liability offense would qualify as an “illicit trafficking” aggravated felony. We need not address that question because the Florida statute involved in this case does not go that far.7 Section 893.13(1)(a) of the Florida Statutes includes an affirmative defense for a person who possesses a controlled substance
Because section 893.13(1)(a) retains a mens rea requirement regarding the presence of a controlled substance and includes an affirmative defense for ignorance of its unlawful nature, we do not consider it to be a “strict liability” statute. We therefore conclude that “illicit trafficking” offenses do not require a mens rea element with respect to knowledge of the illicit nature of the controlled substance, at least when accompanied, as here, by an affirmative defense permitting a defendant to show that he or she had no such awareness, as well as by a requirement that the defendant be aware of the presence of the substance (apart from its illegality).
Next, we must decide if section 893.13(1)(a)(1) is otherwise a categorical match to the illicit trafficking clause of the Act.8 To determine if a State crime is a categorical match to the analogous Federal offense, the Eleventh Circuit follows the analytical approach established in Taylor v. United States, 495 U.S. 575 (1990), and recently set forth in Descamps v. United States, and Moncrieffe v. Holder. See Donawa v. U.S. Att‘y Gen., 735 F.3d at 1280-81 & n.3. On this point, we are guided by our holding in Davis, which, as noted earlier, held that to meet the definition of “illicit trafficking” under the Act, the offense must involve a commercial transaction.9 Matter of Davis, 20 I&N Dec. at 541 (concluding that
Applying this “commercial transaction” test, we first find that section 893.13(1)(a) is divisible as to the offenses it prohibits. See Descamps v. United States, 133 S. Ct. at 2284 (stating that a statute is divisible where it “comprises multiple, alternative versions of the crime“); Matter of Chairez, 26 I&N Dec. 349, 352-53 (BIA 2014). As the generally applicable jury instructions for a drug trafficking offense in Florida make clear, section 893.13(1)(a) lists multiple discrete offenses, which may or may not categorically match the “illicit trafficking” clause of section 101(a)(43)(B) of the Act. Fla. Standard Jury Instr. (Crim.) 25.2 (2013) (stating that to prove an offense under section 893.13(1)(a) or (2)(a), the State must prove that the defendant “[sold] [purchased] [manufactured] [delivered] [possessed with intent to sell] [possessed with the intent to purchase] [possessed with intent to manufacture] [possessed with intent to deliver] a certain substance“).
For example, since it is illegal to manufacture a controlled substance under the statute, a person could potentially be convicted of manufacturing only a small amount of marijuana or another controlled substance for personal use or with no remuneration. However, we need not decide whether such conduct fits within the scope of “illicit trafficking” because the statute is clearly divisible, and the modified categorical approach applies.10 See Descamps v. United States, 133 S. Ct. at 2283-85 (stating that the modified categorical approach is appropriate to assist courts in applying the categorical approach when assessing a “divisible” criminal statute).
Employing the modified categorical approach, we look to the record of conviction to determine if the respondent‘s offense is categorically “illicit trafficking.” Evidence that may be considered in applying the modified categorical approach includes the charging document, the terms of a plea
Count One of the information contained in the record states that the respondent sold cocaine to a confidential informant in violation of section 893.13(1)(a)(1) of the Florida Statutes. The judicial order containing a finding of guilt confirms that the respondent was convicted of selling cocaine under Count One of the information.11 The Florida courts have consistently held that for purposes of section 893.13(1)(a), “consideration is part of every sale.” State v. Stewart, 374 So. 2d 1381, 1383 (Fla. 1979). Thus, selling cocaine in violation of section 893.13(1)(a) is categorically an offense involving a “commercial transaction” and therefore meets the “illicit trafficking” definition in Matter of Davis. Based on the documents in the record, we conclude that the respondent‘s conviction for the sale of cocaine under section 893.13(1)(a)(1) is for an aggravated felony as defined by section 101(a)(43)(B) of the Act.12 Accordingly, his appeal from the Immigration Judge‘s finding of removability will be dismissed.
B. Relief From Removal
As an alien convicted of an aggravated felony, the respondent is ineligible for cancellation of removal and asylum. See sections 208(b)(2)(A)(ii), (B)(i), 240A(a)(3) of the Act. Moreover, aggravated felonies involving unlawful trafficking in controlled substances are presumptively “particularly serious crimes,” and the Immigration Judge properly found that the respondent‘s aggravated felony conviction rendered him ineligible for withholding of removal under both section 241(b)(3) of the Act and the Convention Against Torture. See section 241(b)(3)(B)(ii)
The respondent‘s claim to deferral of removal is based on his alleged fear of the Revolutionary Armed Forces of Colombia (FARC) in Venezuela. The Immigration Judge found that the respondent did not adequately establish that “he would be tortured by the present government of Venezuela.” However, under the proper standard for establishing eligibility for deferral of removal, the respondent needs to show that it is “more likely than not” that he will be subjected to torture “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
On remand, the parties should be given an opportunity to present additional evidence pertaining to the respondent‘s application for deferral of removal, including, but not limited to, testimony and updated country conditions materials. The Immigration Judge should then further consider the respondent‘s request for that relief, including all necessary findings of fact.
ORDER: The respondent‘s appeal from the Immigration Judge‘s finding of removability under section 237(a)(2)(A)(iii) of the Act is dismissed.
FURTHER ORDER: The respondent‘s appeal from the denial of his applications for cancellation of removal, asylum, and withholding of removal under section 241(b)(3) of the Act and the Convention Against Torture is dismissed.
FURTHER 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.