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Francisco v. U.S. Attorney General

United States Court of Appeals, Eleventh Circuit

March 12, 2018

JOSE EMILIO ULLOA FRANCISCO, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent.

         Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A045-874-205

          Before TJOFLAT and WILSON, Circuit Judges, and ROBRENO, [*] District Judge.

          TJOFLAT, Circuit Judge:

         The Armed Career Criminal Act ("ACCA") provides that a person convicted of violating 18 U.S.C. § 922(g) faces an enhanced sentence if he or she has three previous convictions for "violent felon[ies]."[1] To determine whether a conviction qualifies as a violent felony, a court may look "only to the statutory definition[] of the prior offense[], and not to the particular facts underlying th[e] conviction[]." Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159 (1990). In some cases, the statute under which the defendant was convicted contains multiple offenses-some that are violent felonies and some that are not. This means that the statute is divisible. Descamps v. United States, 570 U.S. 254, 257, 133 S.Ct. 2276, 2281 (2013). In such cases, the Government must prove that the conviction qualified as a violent felony. To do so, it may introduce limited parts of the record of the conviction.[2] Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 1263 (2005) (plurality opinion). If these parts, which we refer to as Shepard 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); 8 U.S.C. § 1227(a)(2). If the alien was convicted under a divisible statute, one which contains both designated offenses and non-designated offenses, the AG may prove that the alien's conviction qualified as one of the designated offenses by introducing Shepard documents.[4] Moncrieffe v. Holder, 569 U.S. 184, B 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), 8 U.S.C. § 1227(a)(2)(B)(i). After his removal was ordered, the alien petitioned the AG to cancel the removal. To be eligible for such discretionary relief, the alien had to prove that he had not previously been convicted of an "aggravated felony, " as the INA defines that term. INA § 240A(a)(3); 8 U.S.C. § 1229b(a)(3).

          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. Fla. Stat. § 893.135(1)(b)1.c. The alien admitted that these alternative conduct elements created separate crimes, some of which fell under the definition of an aggravated felony and some which did not. He argued that because the AG had not shown that he had been convicted of one of the crimes constituting an aggravated felony, the Moncrieffe presumption applied and required the immigration court to find that he had been convicted of an offense that was not an aggravated felony.

         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.

         I.

         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); 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(B)(i). To obtain the alien's removal, the AG must prove a conviction of one of these felonies by clear and convincing evidence. INA § 240(c)(3)(A); 8 U.S.C. § 1229a(c)(3)(A).[5]

         If an immigration court issues an order of removal, a permanent resident may petition the AG to cancel the removal. INA § 240A(a); 8 U.S.C. § 1229b(a). The AG may exercise his discretion to grant such relief if the alien satisfies three requirements, one being that the alien "has not been convicted of any aggravated felony."[6] INA § 240A(a)(3); 8 U.S.C. § 1229b(a)(3). The alien has the burden 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), 8 U.S.C. § 1229a(c)(4)(A), by a "preponderance of the evidence, " 8 C.F.R. § 1240.8(d).[8]

         The INA defines the term "aggravated felony" in a seemingly interminable list of offenses. See INA § 101(a)(43); 8 U.S.C. § 1101(a)(43). The list includes "illicit trafficking in a controlled substance" and "drug trafficking crime[s]" as defined under federal law.[9] INA § 101(a)(43)(B); 8 U.S.C. § 1101(a)(43)(B). A state crime constitutes an aggravated felony for illicit trafficking in a controlled substance only if the conduct it proscribes is punishable as a felony under federal law. Lopez v. Gonzales, 549 U.S. 47, 60, 127 S.Ct. 625, 633 (2006).

         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), 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an "aggravated felony, " and the immigration court 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 if they match. See Mathis v. United States, 579 U.S. -, 136 S.Ct. 2243, 2248 (2016). After determining that the offenses categorically match, the court must "presume that the conviction 'rested upon nothing more than the least of the acts' criminalized." Moncrieffe, 569 U.S. at 190-91, 133 S.Ct. at 1684 (alterations omitted) (quoting Johnson, 559 U.S. at 137, 130 S.Ct. at 1269).

         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.

         If a statute is determined to be divisible after this analysis, the Government may present "a limited class of documents" to establish the offense the alien committed and therefore the ground for removal. Spaho v. U.S. Attorney Gen., 837 F.3d 1172, 1177 (11th Cir. 2016) (quoting Descamps, 570 U.S. at 257, 133 S.Ct. at 2281). Specifically, the Government may introduce the "trial record-including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms." Johnson, 559 U.S. at 144, 130 S.Ct. at 1273.

         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 Fla. Stat. § 893.135(1)(b)1.c, which makes it unlawful to sell, purchase, manufacture, deliver, or bring cocaine into Florida or to knowingly possess cocaine. Count 2 alleged that Francisco violated Fla. Stat. §§ 777.04(3) and 893.135(5) by conspiring to commit the Count 1 offense.[17] On September 10, 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), 8 U.S.C. § 1227(a)(2)(A)(iii), [19] as an alien convicted of an "aggravated felony, " a term defined to encompass "illicit trafficking in a controlled substance" and "drug trafficking crime[s], " INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).[20]

         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 the parties to brief the issue and scheduled a hearing to resolve it for August 28, 2013.

         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), 8 U.S.C. § 1101(a)(43)(B). The IJ employed the categorical approach in reaching this decision.[21] Because the Count 1 conviction was an aggravated felony, the IJ announced that she would order Francisco's removal and deny his request for cancellation of removal. Faced with the IJ's decision, Francisco's attorney represented that Francisco would seek political asylum and withholding of removal under the United Nations Convention Against 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 Fla. Stat. § 893.135(1)(b)1.c does not necessarily criminalize conduct that falls within the INA's definition of "aggravated felony."

         The BIA vacated the IJ's decision on April 28, 2014. It did so after concluding that Fla. Stat. § 893.135(1)(b)1.c is divisible-meaning that it contains offenses for which there were analogues in the INA definition of aggravated felony and offenses for which there were not. The BIA therefore held that the IJ erred by employing the categorical approach in determining whether, in pleading guilty to Count 1, Francisco pled guilty to an aggravated felony. It concluded that the IJ 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), 8 U.S.C. § 1227(a)(2)(B)(i), [23]because of his conviction under Fla. Stat. § 893.135(1)(b)1.c. The Government also alleged that Francisco's conviction of conspiracy under Count 2 of the Information provided a separate ground of removal as either a conviction of an aggravated felony or a violation of a state law relating to a controlled substance.

         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 Fla. Stat. § 893.135(1)(b)1.c did not constitute an aggravated felony. She reasoned that Donawa v. U.S. Attorney General, 735 F.3d at 1283-where we held that Fla. Stat. § 893.13(1)(a)[24] is not divisible-bound her to apply the categorical approach to Fla. Stat. § 893.135(1)(b)1.c.

         Applying that approach, the IJ observed that Fla. Stat. § 893.135(1)(b)1.c does not require proof that the defendant knew of the illicit nature of the controlled substance, whereas its federal analogue, 21 U.S.C. § 841(a)(1), requires it.[25] The IJ concluded that because Fla. Stat. § 893.135(1)(b)1.c does not require the same mens rea as the federal analogue, Francisco was not convicted of an aggravated felony. Having so concluded, the IJ ruled that the Government failed to make a case for Francisco's removability. After reaching these conclusions, the IJ stated that the removal proceeding was lodged in the wrong venue. The appropriate venue was the immigration court in Orlando, Florida, because Francisco was in 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); 8 U.S.C. § 1227(a)(2)(B)(i).[26] The BIA, on September 10, 2014, therefore remanded the case to the immigration court in Orlando with the instruction that the court address the alternative ground of removability the Government alleged in its amended NTA.

         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, Francisco disclosed his convictions on Counts 1 and 2 of the Information, but stated that he "ha[d] not been convicted of an aggravated felony." On January 13, 2015, Francisco signed the application in Orlando, before the IJ and under oath prior to the commencement of the removal hearing scheduled for that day.

         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 Fla. Stat. § 893.135(1)(b)1.c related to a controlled substance and therefore found Francisco removable. The IJ next considered Francisco's application for cancellation of removal. To prevail, Francisco had to prove that he was eligible for that relief-in particular, that he had not been convicted of an aggravated felony. The focus was on his conviction under Fla. Stat. § 893.135(1)(b)1.c.

         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 ...


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