Pedro Moreno Rojo v. U.S. Attorney General , 499 F. App'x 952 ( 2012 )

Case: 12-10183 Date Filed: 12/05/2012 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10183
Non-Argument Calendar
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Agency No. A074-897-651
PEDRO MORENO ROJO,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 5, 2012)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Pedro Moreno Rojo, a native and citizen of Mexico, seeks review of the
Board of Immigration Appeal’s (“BIA”) order denying Rojo’s motion to terminate
removal proceedings. On appeal, Rojo argues that his conviction for distribution
of Alprazolam was not an aggravated felony because Alprazolam is not listed as a
controlled substance in 21 U.S.C. § 812.
We review de novo whether a prior conviction qualifies as an aggravated
felony. Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1335 (11th Cir. 2011).
“Any alien who is convicted of an aggravated felony at any time after
admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). An “aggravated felony”
includes “illicit trafficking in a controlled substance (as defined in section 802 of
Title 21).” Id. § 1101(a)(43)(B) (emphasis added).
In turn, 21 U.S.C. § 802 defines “controlled substance” as “a drug or other
substance, or immediate precursor, included in schedule I, II, III, IV, or V of part
B of this subchapter.” 21 U.S.C. § 802(6). Those five schedules of controlled
substances are listed at 21 U.S.C. § 812.
Importantly, section 812 explicitly instructs that its lists of controlled
substances should be updated and republished annually. The “[r]evised schedules
are published in the Code of Federal Regulations, Part 1308 of Title 21, Food and
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Drugs.” Id. § 812 n.1. In other words, the definition of “controlled substance” in
21 U.S.C. § 802 incorporates the revised schedules as published in 21 C.F.R.
§ 1308.
Alprazolam is not listed in any of the five original schedules found in 21
U.S.C. § 812. However, it is listed in 21 C.F.R. § 1308.14(c)—and accordingly
has been incorporated into § 802.
We agree with the BIA that Rojo’s conviction for distribution of
Alprazolam is an aggravated felony because Alprazolam is a “controlled substance
. . . as defined in section 802 of Title 21.”
PETITION DENIED.
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