U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5/07 Leesburg Pike, Suite 2000

Falls Church. Virginia 2204/

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Salazar, Rachel Elizabeth OHS/ICE Office of Chief Counsel - NYD
The Legal Aid Society 201 Varick, Rm. 1130
199 Water St. 3rd Floor New York, NY 10014
New York, NY 10038

Name: CHRISTIE, DEVON A 042-259-741

Date of this notice: 4/26/2017

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

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Devon Christie, A042 259 741 (BIA April 26, 2017)
 U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Offi e for Immigration Review

Falls Church, Virginia 20530

File: A042 259 741 - New York, NY Date: APR 2 6 2017

In re: DEVON CHRISTIE a.k.a Anthony Christie a.k.a. Anthony Richards a.k.a. Tony Christie
a.k.a. Anthony Richard

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Rachel E. Salazar, Esquire

ON BEHALF OF DHS: Donald W. Cassidy

Associate Legal Advisor

CHARGE:

Notice: Sec. 237(a)(2)(B)(i), l&N Act [8 U.S.C. 1227(a)(2)(B)(i)] -

Convicted of controlled substance violation

APPLICATION: Cancellation of removal under section 240A(a) of the Act

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.

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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)

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(barring those convicted of aggravated felonies from being eligible for cancellation of removal).

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

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the controlled substance in the respondent's case was cocaine, which is covered under Fla. Stat.
893.13(l)(a)(1). We have previously determined that Fla. Stat. 893.13(1)(a) lists multiple
discrete offenses and is thus divisible and amenable to the modified categorical approach. Matter
ofL-G-H-, 26 l&N Dec. 365, 372 (BIA 2014).

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
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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

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transfer from one person to another of a controlled substance, whether or not there is an agency
relationship." Fla. Stat. 893.02(6). Neither the definition of "delivery" nor the Florida statute
itself includes "consideration" as an element of the offense. "'Manufacture' means the
production, preparation, propagation, compounding, cultivating, growing, conversion, or
processing of a controlled substance, either directly or indirectly, by extraction from substances of
natural origin, or independently by means of chemical synthesis, or by a combination of extraction
and chemical synthesis, and includes any pack.aging of the substance or labeling or relabeling of
3
its container." Fla. Stat. 893.02(15)(a). We have previously noted that under the statute, one
could be convicted for manufacturing a small amount of a controlled substance for personal use or
with no remuneration. Matter of L-G-H-, supra, at 372. Similarly, it appears that one can be
convicted for possessing with intent to deliver without receiving remuneration.

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
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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.

Accordingly, the following orders will be entered.

ORDER: The respondent's appeal is sustained.

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FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

5
Cite as: Devon Christie, A042 259 741 (BIA April 26, 2017)
,
,.. ) )
f t

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
201 VARICK STREET, ROOM 1140
NEW YORK, NEW YORK

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File No: A042 259 741 February 23, 2015

In the Matter of:

CHRISTIE, Devon, also known as: IN REMOVAL PROCEEDINGS

CHRISTIE, Anthoy; RICHARDS, Anth- :
ony; CHRISTIE, Tony; and RICHARD,
Anthony,

Respondent.

CHARGE: INA 237(a)(2){B)(i) Controlled Substance Violation

APPLICATIONS: INA 240A(a)(l) Cancellation of Removal for Certain

Permanent Residents

ON BEHALF OF RESPONDENT ON BEHALF OF DHS

Rachel Salazar, Esq. Kamephis Perez, Esq.
The Legal Aid Society Assistant Chief Counsel
199 Water St., 3rd Floor 201 Varick Street, Rm. 1130
New York, NY 10038 New York, NY 10014

DECISION AND ORDERS OF THE IMMIGRATION JUDGE

In this removal proceeding, Devon Christie ("Respondent") applies for cancellation of

1
removal for certain permanent residents For the reasons that follow, the Court orders
Respondent removed and pretermits his application for relief.

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.
., ) )

Respondent is a thirty-six-year-old male, native and citizen of Jamaica. [Exhibit ("Exh.")

l.] He entered the United States ("U.S.") on or about December 29, 1989 as a lawful permanent
resident ("LPR")' on a conditional basis. Id. On July 15, 1992, the conditions of the
Respondent's permanent residency were removed. Id. On October 25, 1999, the Respondent
was convicted of Possession of Cocaine with Intent to Distribute/Sell in the Second Degree, in
violation of F.S. 893.13. Id. On May 31, 2006, the Respondent was convicted of Criminal

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Sale of Marijuana in the Fourth Degree, in violation of section 221.40 of the New York State
Penal Law ("NYPL"). Id.

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

Exh. 1: Form 1-862, NTA, served October 31, 2013;

Exb. 2: DHS's Submission of Evidence, Tabs A-E, filed November 20, 2013;
Exh. 3: Mental Health Evaluation from Hudson County Correctional Center, filed
January 30, 2014;
Exh. 4: Form EOIR-42B, Application for Cancellation of Removal, filed June 20,
2014;
Exh. S: Form I-589, Application for Asylum and for Withholding of Removal,
filed June 20, 2014;
Exh. 6: The Respondent's medical records;
Exh. 7: The Respondent's submission of evidence, Tabs A-L, filed September 19,
2014;
Exh. 8: Letter from York Regional Police regarding the Respondent's arrest
information, dated September 12, 2014;
Exh.9: Letter of reassurance from Housing Works' Re-entry Program, dated
October 1, 2014;
Exh.10: Case sununaries from the Broward County Clerk of Courts website,
accessed October 2, 2014.

2
,
) )

II. LEGAL ANALYSIS

A. Statutory eligibility for cancellation of removal

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An applicant for reliefbears the burden ofestablishing by a preponderance ofthe
evidence that he is eligible for the requested benefit and that it should be granted in the exercise
of discretion. INA 240(c)(4)(A)(i). The Supreme Court in Moncrieffe did not address whether
establishing that the minimum criminal conduct necessary to sustain a conviction would satisfy a
respondent's burden ofdemonstrating eligibility for relief. Moncrieffe v. Holder, 133 S. Ct.
1678 (2013). Although this is an open question on the national level, an applicant for reliefin
the Second Circuit meets his burden of proving statutory eligibility for relief by applying the
(modified) categorical approach to show that the criminal statute of conviction covers conduct
that both qualifies and does not qualify as an aggravated felony. See Martinez v. Mukasey, SS1
F.3d 1 Ij, 121-22 (2d Cir. 2008). The respo!ldent need only show that the least culpable conduct
necessary to sustain a conviction under the criminal statute at issue would not qualify as an
aggravated felony. Id. The Second Circuit expressly rejected the government's argument that an
applicant must establish "that he has not committed an aggravated felony" and ''that the
particular conduct which led to his conviction in state court would not qualify as a federal
felony." Martinez, S51 F.3d at 122.

The term "aggravated felony" encompasses illicit trafficking in a controlled substance,

including "a drug trafficking crime," as defined in section 924(c) of Title 18 of the U.S. Code
("U.S.C."). INA 10 l (a)(43)(B). As relevant here, the term "drug trafficking crime" is defined
as any felony punishable under, inter alia, the Controlled Substances Act ("CSA") (21 U.S.C.
801 et seq.). 18 U.S.C. 924(c)(2); see Lopez v. Gonzales, S49 U.S. 47, SS, 60 (2006). "(A]ny
felony" includes a state drug trafficking offense, as long as it would be a felony under the CSA.
Lopez, S49 U.S. at SS, 60. An offense constitutes a felony under the CSA ifthe maximum term
of imprisonment authorized by the CSA is more than one year. See 18 U.S.C. 3SS9(a)(S);
Martinez, SSl F.3d at 117-18. The CSA authorizes a maximum term ofimprisonment of more
than one year for "manufacturing, distributing, or dispensing a controlled substance." 21 U.S.C.
841(a). A controlled substance is any substance that appears under 21 U.S.C. 812.

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).

1. S ufficiency of the documentary evidence

1

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The Respondent argues that the record of conviction that DHS submitted does not
conclusively establish that the Respondent was convicted under F.S. 893.13. However, the
"Rule 3.992(a) Criminal Punishment Code Scoresheet" ("Scoresheet"), which was included in
DHS's submission, can properly be considered as proof of the Respondent's conviction. See
[Exh. 2, Tab B.]

Pursuant to INA 240(c)(3)(B), the following documents or records shall constitute

proof of criminal conviction: (1) official records of judgment and conviction; (2) an official
record of plea, verdict, and sentence; (3) a docket entry from court records that indicates the
existence of the conviction; (4) official minutes of a court proceeding; (5) abstract record of
conviction prepared by the court in which conviction was entered; (6) any document prepared by
the court in which the conviction was entered; and (7) any document attesting to the conviction
that is maintained by an official of a State or Federal Penal institution. The Federal Regulations
further explain that "[a]ny document or record prepared by, or under the direction of, the court in
which the conviction was entered that indicates the existence of a conviction" can be relied upon
as conclusive proof of the conviction. 8 C.F.R. 1003.41(6).
Among the documents OHS submitted as evidence of the Respondent's conviction is the
Scoresheet. [Exh. 2, Tab B.) According to the Florida Criminal Punishment Code, "[o]ne or
more Criminal Punishment Code scoresheets must be prepared for each off ender covering all
offenses pending before the court for sentencing." Fla. C.P.C. 3.704(d)(l). Moreover, "the
state attorney must prepare the scoresheets and present them to defense counsel for review as to
accuracy," after which time "[t]he sentencing judge must review the scoresheet for accuracy and
sign it." Fla. C.P.C. 3.704(d){l), (4). The Respondent's Scoresheet indicates that he was being
sentenced for the "primary offense" of violating F.S. 893.13 "Possession Cocaine," a third
degree felony. [Exh. 2, Tab B.] The Florida Criminal Punishment Code defines "primary
offense" as ''the offense at conviction pending before the court for sentencing .. . ." Fla. C.P.C.
3.704(d)(7). Based on the procedures enumerated in the Florida Criminal Punishment Code for
completing the Rule 3.992(a) Criminal Punishment Code Scoresheet, the Respondent's
Scoresheet can properly be considered as proof of his criminal conviction under F.S. 893.13
because it was prepared under the direction of the criminal court, and it lists the conviction for
which he was sentenced. 8 C.F.R. 1003.41(6).

2. The Respondent has not met his burden of proving that F.S. 893.13 is not an
aggravated felony

a. Categorical Approach

In determining whether the Respondent's conviction under Florida Statute 893.13

constitutes an aggravated felony within the meaning of INA l01(a)(43)(B), the Court must
determine whether the elements of the Respondent's conviction would be punishable as a felony
 ) _)

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

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States, 133 S. Ct. 2276, 2281 (2013); Moncrieffe, 133 S. Ct. at 1684; James v. Mukasey, 522
FJd 250, 254-55 (2d Cir. 2008). Under this approach, the "singular circumstances" of an
individual respondent's crimes are not considered. Moncrieffe, 133 S. Ct. at 1684 (holding that
under the categorical approach, actual conduct is "irrelevant"). Rather, the Court assesses the
minimum conduct necessary to sustain a conviction under the statute in question. Gertsenshteyn
v. U.S. Dep't of Justice, 544 F.3d 137, 143 (2d Cir. 2008). A conviction under F.S. 893.13 is
not categorically an aggravated felony because there is a "realistic probability" that 893.13
could be applied to conduct that does not constitute a drug trafficking aggravated felony. F.S.
893.13(3) states: "(a] person who delivers, with.out consideration, 20 grams or less of cannabis . .
. commits a misdemeanor of the first degree." Under Florida law, a first degree misdemeanor is
punishable "by a definite term of imprisonment not exceeding [one] year." F.S. 775.082(4)(a).
This renders the offense a misdemeanor under the CSA, not a felony. 18 U.S.C. 3559(a)(5).
Therefore, at least one of the offenses punishable under F.S. 893.13 is not considered an
aggravated felony under the INA. INA 10l(a)(43)(B)

b. Modified Categorical Approach

A criminal statute is divisible, so as to warrant a modified categorical inquiry, only if (1)

it lists multiple discrete offenses as enumerated alternatives or defines a single offense by
reference to disjunctive sets of "elements," more than one combination of which could support a
conviction; and (2) at least one (but not all) of those listed offenses or combinations of
disjunctive elements is a categorical match to the relevant generic standard. Descamps, 133 S.
Ct. at 2281-83; see Chairez, 26 I&N Dec. at 353 (rejecting Matter of Lanferman "to the extent
that it is inconsistent with [the Board's] understanding of the Supreme Court's approach to
divisibility in Descamps"). In such a case, "a court may determine which particular offense the
noncitizen was convicted of by examining the charging document and jury instructions, or in the
case of a guilty plea, the plea agreement, plea colloquy, or 'some comparable judicial record' of
the factual basis for the plea."' Moncrieffe, 133 S. Ct. 1678, 1684 (quoting Nijhawan v. Holder,
557 U.S. 29, 35 (2009)). F.S. 893.13 is clearly a divisible statute because it lists multiple
discrete offenses as enumerated alternatives, at least one of which is a categorical match to the
"illicit trafficking" aggravated felony pursuant to INA 101(a)(43)(B). See, e.g. Matter of L-G
H-, 26 I&N Dec. 365 (BIA 2014) (finding F.S. 893.13( l )(a)(l) to be an aggravated felony
under INA 10l(a)(43)(B)).

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.

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Section 893.13 penalizes conduct with regard to possession in two ways. First, it
penalizes conduct where the offender did "possess with intent to sell, manufacture, or deliver, a
controlled substance." See. e.g.893.13( l )(a)(l ). This statutory phrase is divisible because it
sets forth multiple ways in which it can be violated in a disjunctive set of elements. Moreover, a
jury would have to find one of these elements beyond a reasonable doubt. See Descamps, 133 S.
Ct. at 2288 ("the only facts the court can be sure the jury so found are those constituting the
elements of the offense"); see also Schad v. Arizona, 501 U.S. 624, 631-32 (1992) (instructing
that the elements of an offense are found in the jury instructions attached to that offense). The
Court finds that this statutory phrase is consistent with the federal definition of illicit trafficking.
Compare Florida Statute839.13( l )(a)(l ) ("possess with intent to sell, manufacture, or deliver,
a controlled substance") with 21 U.S.C.83l (a)( l ) ("knowingly or
intentionally. . . manufacture[s], distribute[s], or dispense[s], or possess[es] with intent to
manufacture, distribute, or dispense, a controlled substance"); see also 21 U.S.C. 802(11)
(defining "distribute" under federal law as "to deliver (other than by administering or dispensing)
a controlled substance or a listed chemical").
Second, F.S.893.13 penalizes conduct where the offender did "possess with intent to
purchase, a controlled substance." See F.S.893.13(2)(a). Although not binding on this Court,
the Eleventh Circuit has found convictions under F.S. 893.13(2)(a) to be aggravated felonies
pursuant to INAIOI(a)(43)(B). See Baig v. U.S. Attorney Gen., 213 F. App'x 772, 774 (11th
Cir. 2006). Therefore, in the absence of any evidence to the contrary, the Court finds that the
Respondent has not proven that the least culpable conduct necessary to be convicted under F.S.
893.13 would not constitute an illicit trafficking aggravated felony.

c. Florida's definition of "cocaine"

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

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chemically equivalent or identical to cocaine, would result in prosecution under F.S. 893.13.
See Chairez, 26I&N Dec. at 356; Ferreira, 26 l&N Dec. at 420-21. A brief survey of Florida
case law revealed no instances where a criminal defendant was prosecuted under F.S. 893.13
with regard to cocaine derivatives that are not chemically equivalent or identical to cocaine.
Moreover, the Respondent bears the burden of proof in this case, as he is an applicant for relief.
Therefore, if the Respondent were to make an argument that Florida's definition of "cocaine" is
broader than the federal definition, he would bear the burden of proffering a case in which the
criminal defendant was prosecuted under Florida law with regard to cocaine derivatives that are
not chemically equivalent or identical to cocaine.

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.

Accordingly, the following orders shall be entered:

ORDERS

IT IS HEREBY ORDERED that Respondent's application for cancellation of removal pursuant

to INA 240A(a)(l) be DENIED.

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