U.S.

Department

Executive Office for Immigration Review

Board of Immigration Appeals
Ofjice olthe Clerk
5107 Lel'shurg Pike. S1111e 2000
Falls Church. l'irgi11ia 20530

OHS/ICE Office of Chief Counsel - ORL

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3535 Lawton Road, Suite 100

Orlando, FL 32803

CRAWFORDVILLE, FL 32327

Name: B

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-672

Date of this notice: 9/25/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Donna Carr
Chief Clerk

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Cite as: M-B-, AXXX XXX 672 (BIA Sept. 25, 2014)

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A024-683-672
CIO WAKULLA COUNTY JAIL
15 OAK STREET

U.S. Department of Justice

Decision oflhe Board o f Immigration Appeals

Execulive Office for Immigration Review

Falls Church, Virginia 20530

File:

Date:

672 - Orlando, FL

In re: M

fN REMOVAL PROCEEDfNGS

ON BEHALF OF RESPONDENT:

Pro se

ON BEHALF OF OHS:

Kaitlin A. DeStigter
Assistant Chief Counsel

CHARGE:

Notice: Sec.

Sec.

237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)] Convicted of controlled substance violation

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237(a)(2)(A)(iii), J&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -

Convicted of aggravated felony
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APPLICATION: Cancellation of removal; asylum; withholding of removal; Convention;

Against Torture

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The respondent, a native of the Bahamas and a citizen of Haiti, has appealed from an
Immigration Judge's April 8, 2014, decision denying his applications for cancellation of
removal, asylum, withholding of removal and protection under the Convention Against Torture
("CAT"). The Department of Homeland Security ("DHS") has filed a response brief. The
request for oral argument is denied. The record will be remanded for further proceedings.
The respondent submitted his asylum and cancellation of removal applications on March 12,
2014 (Exh. 6). Since the applications were filed on or after May 11, 2005, they are governed by
the provisions of the REAL ID Act. See Maller of S-B-, 24 I&N Dec. 42 (BIA 2006). We
review the Immigration Judge's factual findings for clear error. 8 C.F.R. 1003. l (d)(3)(i).
Questions of law, discretion and judgment and all other issues are reviewed de novo. 8 C.F.R.
1003.l (d)(3)(ii).
The respondent was convicted on March 5, 2007, of possession of cocaine with intent to
sell or deliver in violation of Florida Statutes Annotated 893.13(l )(a)(l ) (Exh. 3). The
Immigration Judge held that the DHS did not meet its burden to show by clear and convincing
evidence that the respondent's conviction constitutes illicit trafficking in a controlled substance
under section 10l (a)(43)(B) of the Immigration and Nationality Act for purposes of removability
under section 237(a)(2)(A)(iii) of the Act (I.J. at I n. l).
However, the Immigration Judge held that the respondent cannot meet his burden of
showing statutory eligibility for the discretionary relief of cancellation of removal by proving
Cite as: M-B-, AXXX XXX 672 (BIA Sept. 25, 2014)

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APPEAL

672

On appeal, the respondent challenges the Immigration Judge's finding, arguing that an
offense must contain an element of "unlawful trading or dealing" to be considered an illicit
trafficking offense. In addition, he argues that under a categorical approach, the statute of
conviction does not categorically proscribe conduct punishable as a felony under the Controlled
Substances Act, and thus is it not a drug trafficking crime. Further, he cites D onawa v. U.S. Att '.Y
General, 735 F.3d 1275 (IIth Cir. 2013), which held that the Florida statute prohibiting
possession of cannabis with the intent to sell or deliver is not categorically a drug trafficking
crime.
The Eleventh Circuit specifically addressed Fla. Stat. 893.13(1)(a)(2), which criminalizes
possession of cannabis with intent to sell, manufacture, or deliver. The court concluded that it is
not categorically a drug trafficking aggravated felony. Donawa v. U.S. Att '.Y General, supra, at
1281; see also Matter of L-G-J-1-, 26 I&N Dec. 365 (BIA 2014). We have noted that the holding
in D onawa also applies to section 893.13(1)(a)( l) since the only difference between sections
893.13(1)(a)(l) and (2) is the controlled substance described. Matter of L-G-H-, supra, at 368
n.4. However, the court in D onawa acknowledged that even if an offense does not qualify as a
drug trafficking aggravated felony, it may still render a person ineligible for cancellation of
removal if it qualifies as an illicit trafficking aggravated felony and remanded the record to allow
the respondent in that case to meet his burden to demonstrate eligibility for cancellation of
removal by showing that his conviction did not constitute an illicit trafficking offense. D onawa
v. U.S. All '.Y General, supra, at 1283 (citing section 240(c)(4)(A) of the Act).
In Matter of L-G-H-, supra, we addressed the question whether a conviction for selling
cocaine under section 893.13(1)(a)(1) of the Florida Statutes is an aggravated felony under the
illicit trafficking clause of section 101(a)(43)(B) of the Act. We held that the discrete offense of
selling cocaine in violation of section 893.13(1 )(a)(l) is categorically an offense involving
a "commercial transaction" and therefore meets the "illicit trafficking" definition in Matter
of Davis, 20 I&N Dec. 536 (BIA 1992). Matter of L-G-H-, supra, at 373; see also Lopez
v. G onzales, 549 U.S. 47, 53-54 (2006) (trafficking means some sort of commercial dealing);
Malter ofSanchez-Cornejo, 25 l&N Dec. 273, 274-75 (BIA 2010).
However, we reserved the question whether a conviction for p ossession of a controlled
substance with intent to sell is also an aggravated felony as either "illicit trafficking" or
attempted "illicit trafficking." Matter of L-G-H-, supra, at 373 n.12. In this case, the respondent
was convicted of possession with intent to sell or deliver. Even assuming that the respondent's
conviction rested upon an intent to sell as opposed to merely deliver for no remuneration, we
find that possession plus intent to sell cocaine is not an illicit trafficking offense because a
2
Cite as: M-B-, AXXX XXX 672 (BIA Sept. 25, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

by a preponderance of the evidence that he did not commit an aggravated felony. 8 C.F.R.
1240.8(d); see also sections 240(c)(4)(A), 240A(a)(3) of the Act.
In particular, the
Immigration Judge found that the respondent's conviction possibly constitutes illicit trafficking
in a controlled substance and a drug trafficking offense because it is a felony punishable under
Florida law, and the controlled substance was cocaine (LT. at 14). The Immigration Judge found
that the conviction record is inconclusive as to whether or not the respondent was selling or
otherwise dealing in cocaine, and thus he has not met his burden to establish that he has not been
convicted of illicit trafficking in a controlled substance. Id.

672

conviction under the statute does not require commercial dealing i.e., a completed commercial
transaction. Rather, intent to sell can be proven with circumstantial evidence such as the
quantity or value of drugs in the defendant's possession where the quantity is substantial and
inconsistent with personal use. Harris v. State, 72 So.3d 804 (Fl. Dist. Ct. App. 2011 ).

While the respondent claims in his brief that the Immigration Judge violated his due process
rights by failing to review his application and by shortening the testimony of his mother, he has
not challenged any specific aspects of the proceeding or identified how he has been prejudiced.
See Resp. Br. at 6. Nor has the respondent challenged the Immigration Judge's finding that he is
barred from asylum, withholding of removal under section 24l(b)(3) of the Act and withholding
of removal under the CAT because his conviction for possession with intent to sell or deliver
cocaine constitutes a particularly serious crime (I.J. at 20). Thus, any challenge to these findings
has been waived.
With regard to deferral of removal under the CAT, the respondent argues he cannot be
removed to Haiti because, as a criminal deportee, he will be detained by police, tortured, and
subject to mob violence. In addition, he claims that because he has tattoos and dreadlocks he
will be assumed to be a gang member and will be a target for crime or abuse by the police. The
respondent has not made any specific arguments on appeal regarding his removal to the
Bahamas.
We find no clear error in the Immigration Judge's finding that th respondent has not
provided evidence showing that he will more likely than not be tortured by or with the consent or
acquiescence of the government in the Bahamas or Haiti (i.J. at 22). The 2012 State Department
Report for Haiti indicates that abuse and extortion of criminal returnees from foreign countries
declined significantly, and by year's end deportees reported no detention at all on arrival in the
country (l.J. at 23; Exh. 4). Further, we have concluded that although the conditions prevailing
in Haitian prisons are appalling, detention in such a facility does not in and of itself constitute
"torture" within the meaning of the CAT because there is insufficient evidence to show that
Haitian officials maintain those appalling conditions with the specific intent to inflict severe pain
or suffering on inmates, or that any particular inmate faces a probability of intentional "torture"
at the hands of guards, as opposed to other forms of mistreatment that fall short of torture.
3
Cite as: M-B-, AXXX XXX 672 (BIA Sept. 25, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

In addition, we conclude that possession with intent to sell is not an attempted "illicit
trafficking" offense. The generic federal definition of attempt requires: (I) an intent to engage in
criminal conduct and (2) conduct constituting a "substantial step" towards the commission of
the substantive offense which strongly corroborates the defendant's criminal intent. See U.S.
v. C ollins, 779 F.2d 1520, 1533 (11th Cir. 1986). Florida's attempt statute is a close analogue to
the federal definition, which is based on the "substantial step" approach, as both require an
"overt act" which clearly signals the commission of the offense instead of mere preparation.
United States v. L ockley, 632 F.3d 1238, 1245 n.6 (11th Cir. 2011). However, a conviction
under Fla. Stat. 893.13(l)(a)(1) for possession with intent to sell does not require a showing of
an attempt or substantial step towards the completion of unlawful trading or dealing. As such,
we find that the respondent's conviction is not an illicit trafficking aggravated felony, and he is
eligible for cancellation of removal. The record will be remanded to provide the respondent an
opportunity to apply for cancellation of removal.

"

672

Cadet v. Bulger, 377 F.3d 1173, 1193 (11th Cir. 2004) (detention of criminal deportees by itself
does not constitute torture as defined under the CAT); Maller ofJ-E-, 23 I&N Dec. 291, 301-04
(BIA 2002).

Accordingly, the following orders are entered.

ORDER: The respondent's appeal of the Immigration Judge's denial of asylum, withholding
of removal and protection under the Convention Against Torture is dismissed.
FURTHER ORDER: The respondent's appeal of the Immigration Judge's denial of
cancellation of removal is sustained, and the record is remanded for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

FOR THE BOARD

4
Cite as: M-B-, AXXX XXX 672 (BIA Sept. 25, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

The respondent's stated fear of returning to the Bahamas is that he has no relatives there, he
has heard that deportees are treated like criminals, and he is afraid of a place he has not returned
to since he was a young boy (Tr. at 83). We are sensitive to the fact that the respondent faces
hardship upon return to the Bahamas, or in the alternative to Haiti, and we have no wish to
minimize the difficult conditions he will confront. The respondent, however, simply has not met
his burden of demonstrating a pr obability that he will be personally at risk of torture, either by a
public official or with the consent or acquiescence of a public official, in the Bahamas or Haiti.
Cadet v. Bulger, supra; Malter ofJ-E-, supra, at 303. In other words, he has not shown that he
would be individually and intentionally singled out for harsh treatment, such that he would more
likely than not be tortured in the Bahamas or Haiti. Cf Jean-Pierre v. U.S. Atty. General, 500
F.3d 1315, 1324 (11th Cir. 2007).