for Review of a Decision of the Board of Immigration Appeals
Agency No. A045-874-205
TJOFLAT and WILSON, Circuit Judges, and ROBRENO, [*] District Judge.
TJOFLAT, Circuit Judge:
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]." 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. 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. Johnson v. United
States, 559 U.S. 133, 137, 130 S.Ct. 1265, 1269 (2010).
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. 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.
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. §
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
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.
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. §
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." 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, " INA §
240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A), by a
"preponderance of the evidence, " 8 C.F.R. §
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. 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).
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. The framework
presents two approaches: the categorical approach, which
poses a question of law,  and the modified categorical
approach, which poses a mixed question of law and
fact. We discuss each approach in turn.
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).
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
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. 136 S.Ct. at 2247-48.
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." 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.
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.
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." 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
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.
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. 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. 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,
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),  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).
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.
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. 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"). The IJ
continued the removal proceeding to November 27, 2013, to
enable counsel to make the case for CAT relief.
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.
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."
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
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), 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.
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) is not divisible-bound her to apply the
categorical approach to Fla. Stat. § 893.135(1)(b)1.c.
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. 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.
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). 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.
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.
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.
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.
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." 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 ...