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Lopez v. U.S. Attorney General

United States Court of Appeals, Eleventh Circuit

January 31, 2019

SHARIFF DAVID BULA LOPEZ, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent.

          Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A072-836-227

          Before ED CARNES, Chief Judge, ROSENBAUM and HULL, Circuit Judges.

          HULL, CIRCUIT JUDGE

         Upon consideration, we grant in part Petitioner Shariff Bula Lopez's petition for panel rehearing. We vacate the prior opinion in this case, issued on November 21, 2018 and published at 909 F.3d 388 (11th Cir. 2018), and hereby substitute the following opinion in its place.

         Shariff Bula Lopez petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming the Immigration Judge's ("IJ") order of removal. After review, and with the benefit of oral argument, we dismiss in part and deny in part Bula Lopez's petition.

         I. BACKGROUND

         A. Immigration Proceedings

         In 1989, Bula Lopez, a native and citizen of Colombia, moved to the United States, and in 1993 he became a lawful permanent resident ("LPR") of the United States. In 1997, Bula Lopez pled guilty "in his best interest" in Florida state court to one count of possession with intent to deliver Flunitrazepam[1] and was sentenced to two years' probation. Upon returning from a trip abroad in April 2010, Bula Lopez applied for admission to the United States as an LPR and was paroled into the United States pending removal proceedings based on his prior drug conviction.

         In September 2010, the Department of Homeland Security ("DHS") issued Bula Lopez a Notice to Appear ("NTA") charging him as removable, in relevant part: (1) under Immigration and Nationality Act ("INA") § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of a crime involving moral turpitude ("CIMT"); and (2) under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), for having been convicted of violating a law relating to a controlled substance, as defined in the federal Controlled Substances Act ("CSA"). Both charges were based on Bula Lopez's 1997 Florida conviction for possession with intent to deliver Flunitrazepam.

         Bula Lopez, through counsel, denied these charges of removability. Before the IJ, Bula Lopez argued, among other things, that his 1997 Florida conviction was for simple possession of Flunitrazepam, not possession with intent to deliver, and thus his prior conviction did not constitute a CIMT.

         B. IJ's Order

         In a written order, the IJ found that Bula Lopez's Florida conviction was for possession with intent to deliver, not simple possession. Florida Statute § 893.13(1)(a) criminalizes possession with intent to deliver, whereas Florida Statute § 893.13(6)(a) criminalizes simple possession.

         The IJ noted that DHS bears the burden of proving Bula Lopez's inadmissibility by clear and convincing evidence. The IJ acknowledged there was "some ambiguity" regarding the statutory basis for Bula Lopez's Flunitrazepam conviction. The language of the guilty plea form, plea hearing transcript, sentencing documents, and arrest warrant affidavit all described his offense as possession with intent to deliver. However, one document-the information- referred to § 893.13(6)(a), although it also described the offense as possession with intent to deliver. The IJ therefore found "that the preponderance of the evidence supports the conclusion that [Bula Lopez] was convicted under Fla. Stat. § 893.13(1), and not Fla. Stat. § 893.13(6)(a)."

         Having determined that Bula Lopez's prior conviction was for possession with intent to deliver Flunitrazepam under § 893.13(1)(a), the IJ then determined that his conviction qualified as a CIMT under the INA and sustained that charge of removability. The IJ did not, however, sustain Bula Lopez's second charge of removability, for having violated a law relating to a controlled substance, as defined in the CSA. The IJ concluded that Bula Lopez's conviction did not qualify as a controlled substance violation because Flunitrazepam was not listed in the CSA schedules found in 21 U.S.C. § 812 and, thus, Bula Lopez's Flunitrazepam conviction did not "relate to a controlled substance" within the meaning of the INA.

         C. Appeal to the BIA

         Bula Lopez, through counsel, appealed to the BIA. On appeal, Bula Lopez argued that the IJ applied the wrong standard of proof in determining that his 1997 Florida conviction was for possession with intent to deliver, rather than mere possession. Bula Lopez asserted that DHS had the burden to prove his conviction was a CIMT by clear and convincing evidence, but the IJ erroneously applied a preponderance of the evidence standard. Bula Lopez also argued that the IJ erred in sustaining the CIMT charge because Flunitrazepam was not a federally controlled substance, and his offense, whether under § 893.13(6)(a) or § 893.13(1)(a), lacked the requisite "evil intent" mens rea requirement. Bula Lopez also requested a remand to pursue a waiver of inadmissibility under INA § 212(h).

         In response, DHS moved for summary affirmance of the IJ's order. DHS argued that the IJ correctly found Bula Lopez was convicted of possession with intent to deliver Flunitrazepam and that his conviction constituted a CIMT. In addition, DHS argued that, contrary to the ...


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