Professional Documents
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Department of Justice
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Cynthia L. Crosby
Acting Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Mann Ana
,
Kelly, Edward F.
Userteam: Docket
Cite as: Devon Christie, A042 259 741 (BIA April 26, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
In re: DEVON CHRISTIE a.k.a Anthony Christie a.k.a. Anthony Richards a.k.a. Tony Christie
a.k.a. Anthony Richard
APPEAL
CHARGE:
The respondent appeals an Immigration Judge's decision of February 23, 2015, denying the
respondent's application for cancellation of removal under section 240A(a) of the Immigration and
Nationality Act {"Act"), 8 U.S.C. 1229b(a). Both the respondent and the Department of Homeland
Security ("DHS") have filed supplemental briefs before us. The appeal will be sustained, and the
record will be remanded. The respondent's request for oral argument is denied. 8 C.F.R.
1003.l(e)(7).1
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.l(d)(3)(i); see also Matter ofJ-Y-C-, 24 l&N Dec. 260 (BIA 2007); Matter ofS-H-, 23 l&N
Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other issues de
novo. See 8 C.F.R. 1003.l(d)(3)(ii).
The respondent was charged in the Notice to Appear with having been cop.victed of second
degree possession of cocaine with intent to distribute/sell, in violation of section 893.13 of the
Florida Statutes, and for the offense of criminal sale of marijuana in the fourth degree, in violation
of section 221.40 of the New York Penal Law (Exhs. 1 and 2). The Im.migration Judge found the
respondent removable as charged under section 237(a)(2)(B)(i) of the Act, for having been
convicted of a controlled substance violation. The Immigration Judge concluded that the
1 The record reflects that the respondent has a history of mental illness (Tr. at 30-35, 39-58; 97;
Exh. 3). However, after considering the factors set forth in Matter of M-A-M-, 25 l&N Dec. 474,
480 (BIA 2011), the Immigration Judge concluded that the respondent, who was represented by
counsel, was mentally competent (Tr. at 58). On appeal, the respondent, who continues to be
represented by counsel, does not contest the competency finding.
Cite as: Devon Christie, A042 259 741 (BIA April 26, 2017)
A042 759 74i
convicted- of a controlled substance violation. The Immigration Judge concluded that the
respondent's Florida conviction was an aggravated felony as 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 (l.J. at 5-7)). See
section 10l(a)(43)(B) of the Act. Accordingly, he denied the respondent's application for
cancellation of removal (1.J. at 7). See section 240A(a)(3) of the Act, 8 U.S.C. 1229b(a)(3)
The DHS contends that the Immigration Judge properly pretennitted 'the respondent's
application for cancellation of removal because the respondent's conviction for delivery/sale of
cocaine is an aggravated felony under the illicit trafficking prong of section 10l(a)(43)(B) of the
Act.
The respondent does not contest the finding of removability. Rather, he contests the
Immigration Judge's finding that the respondent's Florida conviction constitutes an aggravated
felony, rendering him ineligible for cancellation of removal under section 240A(a)(3) of the Act.
As the respondent correctly points out, the judgment of conviction does not reflect that the
respondent was convicted under section 893.13 of the Florida Statutes, but rather section 893.03 of
the Florida Statutes, which is the "standards and schedules" of prohibited controlled substances
(Exh. 11). The respondent thus argues that the record of conviction is insufficient to establish that
he was convicted under section 893.13 of the Florida Statutes.
However, the Immigration Judge also relied on the Criminal Punishment Code Scoresheet
("scoresheet"), which specifies that the respondent was convicted under section "893.13" for
2
"Possession Cocaine with Intent," a second degree felony (Exh. 11). The respondent argues that
the scoresheet cannot be considered, as it is not a part of the record of conviction (Resp. Br. at 2-
3).
We need not resolve this issue. Even considering the scoresheet, we agree with the respondent
that the record remains inconclusive as to whether the crime for which the respondent was
convicted constitutes an aggravated felony. In analyzing whether an alien is convicted of an
aggravated felony, we apply the categorical approach - or, if the statute is divisible, the modified
categorical approach. See Descamps v. United States, 133 S. Ct. 2276, 2281-82 (2013) (setting
forth the framework for the categorical approach and modified categorical approach). Recently, in
Matter of Chairez Ill, 26 I&N Dec. 819 (BIA 2016), we clarified that the understanding of
statutory "divisibility" embodied in Mathis v. United States, 579 U.S._, 136 S. Ct. 2243 (2016),
applies in immigration proceedings nationwide to the same extent that it applies in criminal
2
We note that the record contains two scoresheets for two different convictions, one for a second
degree felony of "Possession of Cocaine with Intent" (Exh. 11) and another for a third degree
felony of "Possession of Cocaine" (Exh. 13). The case number on the judgment document in the
record is the same as the case number on the scoresheet for "Possession of Cocaine with Intent"
(Exh. 11). However, throughout his decision, the Immigration Judge inadvertently refers to these
crimes interchangeably (Exh. 13; l.J. at 2, 4, 6).
Cite as: Devon Christie, A042 259 741 (BIA April 26, 2017)
A042259 741
sentencing proceedings and that Inunigration Judges and the Board must follow applicable circuit
law to the fullest extent possible. See Matter ofChairez I, 26 I&N Dec. 349, 354 (BIA 2014); see
also Matter ofChairez II, 26 I&N Dec. 478, 481-8? (BIA 2015).
Pursuant to Fla. Stat. 893.13(1)(a), "a person may not sell, manufacture, or deliver, or
possess with intent to sell, manufacture, or deliver, a controlled substance." It is uncontested that
The United States Court of Appeals for the Eleventh Circuit recently concluded that
Fla. Stat. 893.13(1)(a)(2) was divisible for purposes of the categorical approach. See
Spaho v. U.S. Att'y Gen., 837 F.3d 1172 (11th Cir. 2016). In that case, the Eleventh Circuit found
that the text of the statute delineated six discrete elements: sale, delivery, manufacture, possession
with intent to sell, possession with intent to deliver, and possession with intent to manufacture.
Spaho v. U.S. Att'y Gen., supra, at 1177. The Eleventh Circuit determined that possession with
intent to sell is inherently commercial and qualifies under the definition of an illicit trafficking
aggravated felony. Spaho v. U.S. Att'y Gen., supra, at 1179. The more pressing issue is whether
possession with intent either to manufacture or deliver constitutes illicit trafficking.
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)."
An "illicit trafficking" aggravated felony includes "any state, federal, or qualified foreign felony
conviction involving the unlawful trading or dealing of any controlled substance." Matter of
Davis, 20 I&N Dec. 536, 541 (BIA 1992). "[U]nlawful trading or dealing" requires commercial
conduct. Id.; see Lopez v. Gonzales, 549 U.S. 47, 53 (2006) ('"(T]rafficking' means some sort of
commercial dealing."). Moreover, "'trafficking' involves a commercial transaction, or passing of
goods from one person to another for money or other consideration." Matter of
L-G-H-, supra, at 374 n.9.
Thus, the relevant inquiry is whether the respondent's conviction under section 893.13 of the
Florida Statutes necessarily involved the "unlawful trading or dealing" in cocaine. The scoresheet
at issue only reflects a conviction for "Possession of Cocaine with Intent" in violation of section of
893.13, but does not specify a subsection. Section 893.13(1)(a) prohibits possession "with intent
to sell, manufacture or deliver" a controlled substance, and section 893.13(2)(a) relates to
"possession with intent to purchase" a controlled substance. While we held in Matter of L-G-H-,
supra, that a conviction for selling cocaine in violation of section 893.13(1)(a)(l) of the Florida
Statutes is for an illicit trafficking aggravated felony, sale of a drug clearly involves a commercial
transaction. However, the scoresheet does not indicate whether the respondent was convicted for
possession with intent to sell or purchase cocaine, rather than to manufacture or deliver it.
The Eleventh Circuit did not expressly decide whether possession with intent to manufacture
or deliver constitutes illicit trafficking. For example, the court noted that "[s]ome of the
alternative elements set forth in 893.13(1)(a) involve "illicit trafficking" and some do not."
3
Cite as: Devon Christie, A042 259 741 (BIA April 26, 2017)
A042 259 741
Spaho v. U.S. Att '.Y Gen., supra, at 1178. However, the court also used arguably more permissive
language, stating that "sale and possession with intent to sell . . . are inherently commercial and
qualify under the definition of an illicit trafficking aggravated felony while the other four
alternatives may not be commercial and may not qualify." Id. at 1179 (emphasis added).
We note the term "delivery" or "deliver" is defined as ''the actual, constructive, or attempted
In sum, we find that possession with intent to sell a controlled substance constitutes an illicit
trafficking aggravated felony. However, we cannot conclude that possession with intent to
manufacture or deliver a controlled substance constitutes an illicit trafficking aggravated felony.
See Mellouli v. Lyn.ch, 135 S. Ct. 1980, 1986 (2015) (noting that an adjudicator must "presume
that the conviction rested upon nothing more than the least of the acts criminalized" under the state
statute) (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-1685 (2013) (internal quotation
marks and alterations omitted)).
The respondent argues that the record of conviction is inconclusive, and that he therefore
meets his burden to establish that he has not been convicted of an aggravated felony. Under the
REAL ID Act, an alien who seeks discretionary relief, such as cancellation of removal, bears the
burden of proof to establish that his or her offense is not a disqualifying offense. Sections
240(c)(4)(A)(i) and 240A(b)(l)(C) of the Act; Matter ofAlmanza-Arenas, 24 I&N Dec. 771, 774-
75 (BIA 2009). Under the law of the Second Circuit, where this case arises, an alien's burden of
proving eligibility for cancellation of removal is met when the alien shows that the crime of which
he was convicted did not necessarily constitute a federal aggravated felony. Martinez v. Mukasey,
551 F.3d 113, 122 (2d Cir. 2008); see also Dabney v. Holder, 2009 WL 578632, at 2 (2d Cir.
2009) (unpublished) (same).
Therefore, the respondent is not barred from cancellation of removal relief under section
240A(a)(3) of the Act. We thus sustain the respondent's appeal and remand the record of
3 The definition of manufacture also includes exceptions for practitioners and pharmacists who
manufacture in the course of their professional practice, or for the pwpose of, or incident to,
research, teaching, chemical analysis, and not for sale. Fla. Stat. 893.02(15)(a)l., 2.
4
Cite as: Devon Christie, A042 259 741 (BIA April 26, 2017)
A042 259 741
proceedings for the Immigration Judge to consider his eligibility for cancellation of removal. We
express no opinion as to the ultimate outcome of this case.
5
Cite as: Devon Christie, A042 259 741 (BIA April 26, 2017)
,
,.. ) )
f t
Respondent.
I. PROCEDURAL HISTORY
1 Initially, Respondent filed an application for withholding of removal under 24 l(b)(3) of the Act and under the
Convention Against Torture (Fonn 1-589), but this application was withdrawn on January 26, 2015.
., ) )
On October 31, 2013, the Department of Homeland Security ("DHS") served the
Respondent with a Form 1-862, Notice to Appear (''NTA"), charging him as removable under
section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA") for having been
convicted of a controlled substance offense at any time after admission. Id. On March 25, 2014,
the Respondent denied all the factual allegations contained in the NTA and denied the charge of
removability. On October 3, 2014, the Court sustained allegations one through three and five
through six, but did not sustain allegation four. The Court also sustained the charge of
removability. Removability was therefore established by clear and convincing evidence. See 8
C.F.R. 1240.8, 1240. lO(c). DHS designated Jamaica as the country of removal. See INA
241(b)(2). On June 20, 2014, the Respondent filed a Form 1-589, Application for Asylum and
for Withholding of Removal and a Form EOIR-42A, Application for Cancellation of Removal
for Certain Permanent Residents and a Form 1-589, Application for Asylum and for Withholding
of Removal. [Exhs. 4; 5.] On January 26, 2015, Respondent withdrew his 1-589.
I. EXHIBITS
2
,
) )
The Supreme Court in Moncrieffe clarified that there must be a "reasonable probability,"
not just a theoretical possibility, that that the State would apply its statute to conduct falling
outside of the generic definition of a crime in order to sustain a finding that the state offense is
not categorically equivalent to the federal offense. Id. at 1685 (citing Gonazalez v. Duenas
Alvarez, 549 U.S. 183, 193 (2007)). If it is only theoretically possible for a person to be
convicted under the state statute for distribution of a small amount of marijuana for no
remuneration, but the state never prosecutes such conduct under that statute, there is sufficient
evidence to find that a respondent's conviction categorically constitutes an aggravated felony.
Id.; see Matter ofFerreir 26 I&N Dec. 41S, 419 (2d Cir. 2014) (remanding for application of
the realistic probability test where a State statute covered a controlled substance not included in
the Federal controlled substance schedules, and noting that the '"realistic probability test' is part
of the initial inquiry that an Immigration Judge must undertake when applying the categorical
approach"); see also Matter ofChaire 26 l&N Dec. 349, 357 (finding no realistic probability
3
) )
that a state statute would be applied in a manner constituting a removable offense where the
Respondent identified no decision where anyone had been so prosecuted).
2. The Respondent has not met his burden of proving that F.S. 893.13 is not an
aggravated felony
a. Categorical Approach
under federal criminal law. See Lopez, 549 U.S. at 57. The state drug offense must meet two
conditions to be considered a felony under federal criminal law: it must "necessarily" proscribe
conduct that is an offense under the CSA, and the CSA must "necessarily" prescribe felony
punishment for that conduct." Moncrieffe, 133 S. Ct. at 1685.
The Court must begin by employing the categorical approach. See Descamps v. United
Under the modified categorical approach, the Court may look at the Respondent's record
of conviction to determine under which offense the Respondent was convicted. The Scoresheet
indicates that the Respondent was convicted under F.S. 893.13 and sentenced to one year and
one day in prison. [Exh. 2, Tab B.] His conviction therefore constitutes a felony under the CSA
because he was sentenced to a term of imprisonment of more than one year. However, the
Scoresheet does not indicate tinder which subsection ofF.S. 893.13 the Respondent was
5
) )
.
convicted. It merely contains a description of the Respondent's conviction as "Possession
Cocaine." Id. Based on this description, it is clear that the Respondent was convicted of a
controlled substance offense regarding cocaine, which is a federally controlled substance. See
21 U.S.C. 802; 21 C.F.R.1308.12(b)(4). This description alone does not clarify the
subsection under which the Respondent was convicted.
In the past, Legal Aid has argued that Florida's definition of "cocaine" is broader than the
federal definition because the federal definition includes the qualifying phrase "any salt,
compound, derivative, or preparation thereof which is chemically equivalent or identicaf'
(emphasis added), while Florida's definition of "cocaine" does not include the phrase
"chemically equivalent or identical." Compare 21 C.F.R. l308.12(b)(4) with F.S.
893.03(2)(a)(4). According to this argument, the absence of the phrase "chemically equivalent
or identical" renders Florida's definition of cocaine broader than the federal definition because
possession of cocaine derivatives that are not "chemically equivalent or identical" would be
punishable under federal law, while possession of such derivatives would not be punishable
under federal law.
However, even if Florida's definition of cocaine were broader than the federal definition,
to fail the categorical test, "there must be 'a realistic probability, not a theoretical possibility, that
the State would apply its statute to conduct"' not constituting an illicit trafficking aggravated
felony. Moncrieffe , 133 S. Ct. at 1685 (citing Duenas-Alvarez, 549 U.S. at 193 (2007)).
6
Specifically, the issue would be whether criminal defendants possessing cocaine derivatives that
are not chemically equivalent or identical to cocaine have been prosecuted for cocaine
possession under F.S. 893.13. Under this inquiry, Florida's definition of cocaine does not
appear to fail the categorical test because it does not appear that there is a realistic probability
that the broader portion of Florida's cocaine definition, cocaine derivatives that are not
III. CONCLUSION
The Respondent has not met his burden of establishing that his conviction under F.S.
893.13 is not an aggravated felony. The Scoresheet included in the record of proceedings
constitutes reliable proof of his conviction. Moreover, he has not established that the least
culpable conduct necessary to violate F.S. 893.13 is not an aggravated felony. Therefore, the
Respondent is not eligible for cancellation of removal.
ORDERS
IT IS FURTHER ORDERED that Respondent be removed from the U.S. to Jamaica on the
charges of removability contained in the NTA.
Gabriel C. Videla
Immigration Judge