Marwan Ibrahim Kaddoura v. Secretary, Department of Homeland Security ( 2018 )


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  •           Case: 17-12308   Date Filed: 04/26/2018   Page: 1 of 8
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-12308
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 6:15-cv-01902-KRS
    MARWAN IBRAHIM KADDOURA,
    Plaintiff-Appellant,
    versus
    SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
    DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
    DISTRICT DIRECTOR, CITIZENSHIP AND IMMIGRATION SERVICES,
    TAMPA, FLORIDA,
    ACTING FIELD OFFICE DIRECTOR, U.S. CITIZENSHIP & IMMIGRATION
    SERVICES,
    Defendants-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (April 26, 2018)
    Case: 17-12308     Date Filed: 04/26/2018    Page: 2 of 8
    Before WILSON, MARTIN, and JORDAN, Circuit Judges.
    PER CURIAM:
    Marwan Ibrahim Kaddoura, a citizen of Lebanon, appeals the magistrate
    judge’s order affirming the denial of his application for naturalization by the
    United States Citizenship and Immigration Services (“USCIS”). The district court
    determined Kaddoura was statutorily ineligible for naturalization due to his 1996
    aggravated felony conviction for delivery of cocaine, in violation of Florida Statute
    § 893.13(1)(a)(1). On appeal, Kaddoura argues his conviction does not qualify as
    an aggravated felony. After careful review, we affirm.
    I.
    In 1991, Kaddoura became a permanent resident of the United States
    through his spouse. In 1996, he was arrested and charged with the unlawful
    delivery of cocaine in violation of Florida Statute § 893.13(1)(a)(1). The
    adjudication was withheld. In 2012, an immigration judge granted Kaddoura relief
    from removal.
    In February 2014, Kaddoura submitted an application for naturalization. On
    May 26, 2015, his application was denied. In its decision, USCIS stated that
    Kaddoura had not demonstrated good moral character. USCIS highlighted
    Kaddoura’s 1996 arrest for unlawful delivery of cocaine, which it concluded
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    qualified as an aggravated felony conviction. Because of this conviction,1 USCIS
    found Kaddoura was “permanently barred from establishing good moral
    character,” making him ineligible for naturalization.
    Kaddoura requested a hearing to appeal this decision, arguing that his
    Florida conviction did not qualify as an aggravated felony using the modified
    categorical approach. USCIS affirmed its decision. Having exhausted his
    administrative remedies, Kaddoura sought review in district court. The district
    court granted USCIS’s motion for summary judgment. This appeal followed.
    II.
    We review de novo the district court’s grant of summary judgment.
    Mendoza v. Sec’y, Dep’t of Homeland Sec., 
    851 F.3d 1348
    , 1352 (11th Cir. 2017)
    (per curiam). Summary judgment is appropriate when the record evidence “shows
    that there is no genuine dispute as to any material fact and the movant is entitled to
    judgment as a matter of law.” Fed. R. Civ. P. 56(a).
    When the USCIS denies an application for naturalization, and the applicant
    seeks judicial review of that denial, that review is conducted de novo. 
    8 U.S.C. § 1421
    (c). We also review de novo whether a conviction qualifies as an
    1
    In the immigration context, a case in which adjudication has been withheld qualifies as
    a “conviction” so long as the alien entered a plea of guilty or nolo contendere and some form of
    punishment was imposed. 
    8 U.S.C. § 1101
    (a)(48)(A). Kaddoura pled nolo contendere to his
    charge for delivery of cocaine and does not contest that some form of punishment was imposed.
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    aggravated felony. Spaho v. U.S. Att’y Gen., 
    837 F.3d 1172
    , 1176 (11th Cir.
    2016).
    III.
    In order to become a naturalized United States citizen, an applicant must
    comply with several statutory prerequisites. 
    8 U.S.C. § 1427
    . Among other things,
    an applicant for naturalization must establish that during all relevant periods he has
    been and still is a person of “good moral character.” 
    Id.
     § 1427(a). The burden of
    proof is on the applicant to establish that he qualifies for naturalization. See id.
    § 1429.
    An applicant for naturalization cannot establish good moral character if he
    has been convicted of an aggravated felony. See id. § 1101(f)(8). As relevant
    here, an aggravated felony is defined as “illicit trafficking in a controlled substance
    (as defined in section 802 of Title 21), including a drug trafficking crime (as
    defined in section 924(c) of Title 18).” Id. § 1101(a)(43)(B).
    Section 924(c) defines a “drug trafficking crime” as “any felony punishable
    under the Controlled Substances Act” (“CSA”). 
    18 U.S.C. § 924
    (c)(2). An
    offense that is punishable by more than one year imprisonment is considered a
    felony. 
    Id.
     § 3559(a). Under the CSA, it is “unlawful for any person knowingly or
    intentionally [] to manufacture, distribute, or dispense, or possess with intent to
    manufacture, distribute, or dispense, a controlled substance,” including cocaine.
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    21 U.S.C. §§ 812
    , 841(a), 841(b). Distribution includes “to deliver (other than by
    administering or dispensing) a controlled substance.” 
    Id.
     § 802(11). And “deliver”
    is in turn defined as “the actual, constructive, or attempted transfer of a controlled
    substance or a listed chemical, whether or not there exists an agency relationship.”
    Id. § 802(8). A person who distributes cocaine, a Schedule II drug, “shall be
    sentenced to a term of imprisonment of not more than 20 years.” 
    21 U.S.C. §§ 812
    , 841(b)(1)(C).
    If a state conviction proscribes conduct that is punishable as a felony under
    the CSA, it also qualifies as a “drug trafficking crime.” See Lopez v. Gonzales,
    
    549 U.S. 47
    , 60, 
    127 S. Ct. 625
    , 633 (2006). Kaddoura was convicted in 1996 of
    delivery of cocaine in violation of Florida Statute § 893.13(1)(a)(1). In 1996,
    Florida law said it was “unlawful for any person to sell, manufacture, or deliver, or
    possess with intent to sell, manufacture, or deliver, a controlled substance,”
    including cocaine. See 
    Fla. Stat. §§ 893.13
    (1)(a), 893.03(2)(a)(4) (1996). At the
    time, Florida law defined “delivery” as “the actual, constructive, or attempted
    transfer from one person to another of a controlled substance, whether or not there
    is an agency relationship.” 
    Id.
     § 893.02(5).
    Kaddoura’s conviction qualifies as a “drug trafficking crime.” First, the
    state crime for which Kaddoura was convicted qualified as a crime under the CSA.
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    Fequiere v. Ashcroft, 
    279 F.3d 1325
    , 1326 n.3 (11th Cir. 2002). 2 Both Florida
    Statute § 893.13(1)(a) and the CSA prohibit the “delivery” of cocaine, and they
    define “delivery” identically. 3 Second, under the CSA, Kaddoura’s conduct was
    punishable by more than one year imprisonment, making it a felony. See 
    21 U.S.C. §§ 812
    , 841(b)(1)(C); 
    18 U.S.C. § 3559
    (a). Because Kaddoura’s conviction
    was for a “drug trafficking crime,” the district court did not err in finding that he
    had been convicted of an aggravated felony, making him statutorily ineligible for
    naturalization.
    Kaddoura argues that the district court’s interpretation of “drug trafficking
    crime” must be incorrect because his conviction, as the government admits, does
    not also qualify as “illicit trafficking in a controlled substance.” He points
    specifically to the phrasing of the statute defining aggravated felonies: “illicit
    trafficking in a controlled substance . . . including a drug trafficking crime.” 
    8 U.S.C. § 1101
    (a)(43)(B) (emphasis added). He says this must mean that illicit
    2
    In Donawa v. U.S. Attorney General, 
    735 F.3d 1275
     (11th Cir. 2013), a panel of this
    Court held that a conviction under Florida Statute § 893.13(1)(a) did not qualify as a “drug
    trafficking crime.” Id. at 1281, 1283. However, as Kaddoura acknowledges, Donawa was
    interpreting a different version of the statute than the one he was convicted of violating. See 
    Fla. Stat. § 893.101
     (eliminating the mens rea requirement in § 893.13(1)). Because Kaddoura was
    convicted of violating the pre-2002 version of § 893.13(1)(a), Fequiere still controls.
    3
    There has been some dispute about whether it is appropriate to use the categorical or
    modified categorical approach in dealing with Florida Statute § 893.13(1)(a)(1) as amended in
    2002. Compare Spaho, 837 F.3d at 1178 (applying the modified categorical approach), with
    Donawa, 735 F.3d at 1281–82 (applying the categorical approach). We need not decide which
    approach is required here, as Kaddoura’s pre-2002 conviction qualifies as a “drug trafficking
    crime” under either approach.
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    trafficking is intended to be a broader category than drug trafficking crimes. As a
    result, he says the court erred in concluding that he committed a “drug trafficking
    crime” when he did not commit “illicit trafficking.”
    In Lopez v. Gonzales, the Supreme Court interpreted the phrase “illicit
    trafficking” in § 1101(a)(43)(B). The Court noted that “ordinarily ‘trafficking’
    means some sort of commercial dealing.” 
    549 U.S. at 53
    , 
    127 S. Ct. at 630
    . But in
    a footnote, the Court added, “Of course, we must acknowledge that Congress did
    counterintuitively define some possession offenses as ‘illicit trafficking,’” by
    including them in § 924(c). Id. at 55 n.6, 
    127 S. Ct. at
    630 n.6. The Court pointed
    specifically to the “coerced inclusion of a few possession offenses in the definition
    of ‘illicit trafficking,’” that did not involve commercial activity, including
    “possession of cocaine base and recidivist possession.” 
    Id.
     Because those crimes
    were punishable as felonies under § 924(c), they therefore qualified as aggravated
    felonies even though they involved no commercial activity. Id.
    The same logic controls here. Although mere delivery of a controlled
    substance may not include the commercial activity necessary to qualify as “illicit
    trafficking,” that crime’s inclusion under § 924(c) shows that Congress nonetheless
    intended to include it within the statutory category of aggravated felonies. The
    district court therefore did not err in concluding that Kaddoura’s “drug trafficking”
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    conviction did not also need to meet the definition of an “illicit trafficking offense”
    in order to qualify as an aggravated felony under 
    8 U.S.C. § 1101
    (a).
    Because Kaddoura’s Florida conviction for delivery of cocaine qualified as
    an aggravated felony, the district court did not err in concluding that he was
    statutorily ineligible for naturalization.
    AFFIRMED.
    8
    

Document Info

Docket Number: 17-12308

Filed Date: 4/26/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021