Waling Choizilme v. U.S. Attorney General , 886 F.3d 1016 ( 2018 )

Case: 15-13845 Date Filed: 03/30/2018 Page: 1 of 34
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13845
________________________
Agency No. A075-853-600
WALING CHOIZILME,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 30, 2018)
Before JORDAN, HULL and GILMAN, * Circuit Judges.
HULL, Circuit Judge:
*
Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
Case: 15-13845 Date Filed: 03/30/2018 Page: 2 of 34
Waling Choizilme, a native and citizen of Haiti, petitions for review of the
Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) order of removal based on his five criminal convictions for drug
offenses under Florida Statute § 893.13. After review and with the benefit of oral
argument, we conclude that the BIA did not err in concluding that Choizilme was
ineligible for cancellation of removal because his Florida conviction for sale of
cocaine, in violation of Fla. Stat. § 893.13(1)(a)(1), constituted “illicit trafficking”
within the meaning of 8 U.S.C. § 1101(a)(43)(B). Accordingly, we deny the
petition.
I. LEGAL BACKGROUND
The Immigration and Nationality Act of 1965 (“INA”) makes removable
“[a]ny alien who is convicted of an aggravated felony.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). The INA further provides that an alien who has been
convicted of an aggravated felony is ineligible for discretionary relief in the form
of cancellation of removal. Id. § 1229b(a). All parties agree that Choizilme is
removable and not eligible for cancellation of removal if he was convicted of an
“aggravated felony.” The dispute in this case involves the definition of
“aggravated felony” in 8 U.S.C. § 1101(a)(43)(B), and whether Choizilme’s
sale-of-cocaine conviction under Fla. Stat. § 893.13(1)(a)(1) falls within that
definition.
2
Case: 15-13845 Date Filed: 03/30/2018 Page: 3 of 34
One of the many crimes that constitutes an “aggravated felony” under the
INA is “illicit trafficking in a controlled substance (as defined in section 802 of
Title 21),1 including a drug-trafficking crime (as defined in section 924(c) of Title
18).” 8 U.S.C. § 1101(a)(43)(B).
Recently, this Court has addressed the two portions of this definition:
(1) “illicit trafficking in a controlled substance”; and (2) a “drug trafficking crime”
as defined in 18 U.S.C. § 924(c). First, this Court held that a conviction for
possession of marijuana with intent to sell under Fla. Stat. § 893.13(1)(a)(2) is not
categorically a “drug trafficking crime” as defined in 18 U.S.C. § 924(c), and
therefore cannot qualify as an aggravated felony under that second portion of
8 U.S.C. § 1101(a)(43)(B). Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1283 (11th
Cir. 2013). The Donawa Court left open the possibility that a violation of the same
Florida statute might nevertheless qualify as an aggravated felony under the “illicit
trafficking in a controlled substance” portion of § 1101(a)(43)(B). Id. at 1283.
Subsequently, in Spaho v. U.S. Att’y Gen., 837 F.3d 1172, 1176-79 (11th
Cir. 2016), this Court held that a conviction for sale of a controlled substance
under Fla. Stat. § 893.13(1)(a)(1) qualified as “illicit trafficking in a controlled
substance” and, therefore, constituted an aggravated felony under that first portion
1
Under 21 U.S.C. § 802, the term “controlled substance” is defined in relevant part as “a
drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V” of the
federal drug schedules. 21 U.S.C. § 802(6).
3
Case: 15-13845 Date Filed: 03/30/2018 Page: 4 of 34
of § 1101(a)(43)(B). See also Gordon v. U.S. Att’y Gen., 861 F.3d 1314, 1318-19
(11th Cir. 2017) (following Spaho). That is the same statute under which
Choizilme was convicted.
With this background, we review the procedural history of Choizilme’s
immigration proceedings and then address Choizilme’s arguments on appeal.
II. IMMIGRATION PROCEEDINGS 2012-2017
In December 1998, Choizilme was admitted to the United States as a legal
permanent resident.2 In 2005, Choizilme was convicted in Florida state court of,
inter alia, (1) possession of cocaine, (2) possession of a Schedule IV substance,
(3) possession of a Schedule II substance, and (4) possession of hydrocodone, all in
violation of Fla. Stat. § 893.13(6)(a). In 2006, Choizilme was convicted in Florida
state court of selling cocaine, in violation of Fla. Stat. § 893.13(1)(a)(1).
A. Initial Hearings in August and December 2012
In March 2012, the Department of Homeland Security (“DHS”) issued a
Notice to Appear, charging Choizilme with removability under 8 U.S.C.
§ 1227(a)(2)(B)(i) for having the above-listed five Florida convictions for
controlled-substance offenses. In support of the Notice to Appear, DHS submitted
records of Choizilme’s convictions. At Choizilme’s first master-calendar hearing
2
Choizilme originally was admitted to the United States in April 1991, when he was five
years old. His status was adjusted to that of a legal permanent resident in December 1998, when
his parents obtained legal permanent-resident status.
4
Case: 15-13845 Date Filed: 03/30/2018 Page: 5 of 34
on August 14, 2012, Choizilme appeared pro se. The IJ informed Choizilme that
he had a right to be represented by counsel, and granted Choizilme a continuance
until December 4, 2012 to obtain counsel.
At his second master-calendar hearing on December 4, 2012, Choizilme,
through counsel, requested a continuance because he was seeking to vacate his
Florida convictions in state court. The government did not object, and the IJ
granted a six-month continuance until June 4, 2013.
B. June 4, 2013 Hearing
At the June 4, 2013 hearing, Choizilme, again through counsel, sought
another continuance of his immigration proceedings “to figure out whether or not
he [was] eligible for cancellation [of removal].” Choizilme explained that he had
retained a criminal attorney who was “working on a motion to vacate” his 2006
sale-of-cocaine conviction because that drug conviction would prevent him from
being eligible for cancellation of removal. Choizilme admitted he had not filed a
motion to vacate in state court yet because he was unable to afford a criminal
attorney sooner.
The government opposed Choizilme’s motion for a continuance. The IJ
agreed that a continuance was not warranted at that point because it was “still kind
of tenuous on [his] post-conviction relief.” Accordingly, the IJ suggested that
Choizilme plead to the allegations in the Notice to Appear to “advance the case a
5
Case: 15-13845 Date Filed: 03/30/2018 Page: 6 of 34
little bit.” Choizilme, through counsel, admitted the allegations and conceded the
charge of removability. The IJ sustained the charge and designated Haiti as
Choizilme’s country of removal. The IJ further indicated that Choizilme was
eligible for deferral of removal under the United Nations Convention Against
Torture (“CAT”), and gave him 60 days to file an application for deferral.3
The IJ scheduled a merits hearing for April 25, 2014. This, in effect, gave
Choizilme 10 more months to file a motion to vacate his Florida convictions in
state court (i.e., a 10-month continuance). The IJ stated that, “by that time if he’s
eligible for cancellation, you can file that application and we’ll convert that into
a . . . cancellation hearing.”
C. Merits Hearing on April 25, 2014
Ten months later, at the April 25, 2014 merits hearing, Choizilme, through
counsel, indicated that he still had not filed a petition in state court to vacate his
2006 sale of cocaine conviction and that “without the vacatur he ha[d] no relief
available.” Choizilme, again through counsel, stated that “if the [IJ was] unable to
grant [a] continuance,” the IJ should proceed by issuing a final order of removal.
To the extent that Choizilme was requesting another continuance to “wait[]
to see if his conviction is vacated,” the government objected. The IJ agreed that
3
The CAT allows for deferral of removal of aliens who (1) have been ordered removed
and (2) have been found to be entitled to CAT protection, but (3) are not eligible for withholding
of removal under the CAT. See 8 C.F.R. § 1208.17(a).
6
Case: 15-13845 Date Filed: 03/30/2018 Page: 7 of 34
another continuance was not appropriate. As of this April 25, 2014 hearing,
Choizilme already had had two continuances to seek relief in state court, totaling
16 months (December 4, 2012 to April 25, 2014). The IJ stated, however, that in
the event that Choizilme was successful in seeking post-conviction relief in state
court, he could file a motion to reopen his immigration proceedings to determine
his eligibility for relief. 4
The IJ then issued an oral decision ordering Choizilme’s removal to Haiti.
The IJ noted that Choizilme had admitted the allegations in the Notice to Appear at
the prior June 4, 2013 hearing and was found subject to removal as charged. The
IJ observed that Choizilme previously was granted a continuance (16 months) for
the purpose of seeking post-conviction relief, but had yet to file for such relief in
state court. The IJ reiterated his determination that there was “not sufficient good
cause” to grant Choizilme a further continuance to await the outcome of a post-
conviction motion. Indeed, a post-conviction motion still had not yet been filed.
D. Appeal to the BIA
On May 27, 2014, Choizilme, through counsel, appealed the IJ’s order of
removal to the BIA. In his notice of appeal, Choizilme argued that the IJ erred in
ordering his removal without advising him of his potential eligibility for
cancellation of removal. Choizilme contended that he was eligible for cancellation
4
At the April 25, 2014 hearing, Choizilme, through counsel, advised that he did not
intend to file an application for withholding of removal under the INA or for CAT relief.
7
Case: 15-13845 Date Filed: 03/30/2018 Page: 8 of 34
of removal because, inter alia, his 2006 Florida conviction for sale of cocaine was
not an aggravated felony under the INA because it did not qualify as either a “drug
trafficking crime” or “illicit trafficking.” In support of his argument, Choizilme
cited this Court’s decision in Donawa, which held that a conviction under Fla. Stat.
§ 893.13(1)(a)(2) was not a “drug trafficking crime” but left open the “illicit
trafficking” issue. See Donawa, 735 F.3d at 1283 (declining to affirm on the
ground that Donawa’s marijuana conviction was an illicit trafficking aggravated
felony because the BIA never considered that argument).
In his October 24, 2014 brief before the BIA, Choizilme argued, as an initial
matter, that the BIA should remand his case to the IJ because the IJ’s oral decision
failed to provide a meaningful explanation as to why Choizilme was ineligible for
cancellation of removal.
Choizilme then asserted that he in fact was eligible for cancellation of
removal because he was not convicted of an aggravated felony. First, Choizilme
explained that, in Donawa, this Court had held that convictions under Fla. Stat.
893.13(1)(a)(2) do not qualify as “drug trafficking crimes” under the INA because
the Florida statute, unlike its federal analogue under § 924(c), does not require that
the defendant know the illicit nature of the substance in his possession.
Choizilme acknowledged that the BIA’s decision in Matter of L-G-H-, 26
I&N Dec. 365 (BIA 2014), held that a violation of Fla. Stat. § 893.13(1)(a)(1)
8
Case: 15-13845 Date Filed: 03/30/2018 Page: 9 of 34
qualified as an aggravated felony under the broader “illicit trafficking” clause of
the INA. But Choizilme contended the BIA had wrongly decided Matter of L-G-
H-.
E. BIA’s July 28, 2015 Decision
On July 28, 2015, the BIA denied Choizilme’s request for a remand and
dismissed his appeal. First, the BIA rejected Choizilme’s contention that the IJ
failed to advise him of his eligibility for cancellation of removal or to provide an
explanation for determining that he was ineligible for relief. The BIA noted that
Choizilme’s own counsel acknowledged his apparent ineligibility for cancellation
of removal, and this Court’s decision in Donawa did not impose a duty on the IJ to
advise Choizilme that he could seek cancellation on the basis of that decision. The
BIA further noted that nothing prevented Choizilme’s counsel from arguing at the
April 2014 merits hearing that Choizilme was eligible for cancellation of removal
in light of the 2013 Donawa decision.
As to Choizilme’s arguments about Matter of L-G-H-, the BIA stated that it
was bound to apply that precedential decision and, in any event, that Choizilme’s
arguments on appeal were essentially the same as those considered and rejected in
Matter of L-G-H- itself. Finally, the BIA agreed with the IJ’s conclusion that good
cause did not warrant a third continuance. Choizilme timely filed a petition for
review in this Court.
9
Case: 15-13845 Date Filed: 03/30/2018 Page: 10 of 34
III. STANDARD OF REVIEW
This Court reviews de novo questions of law, including whether a conviction
qualifies as an “aggravated felony” under the INA, subject to the principles of
deference articulated in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 104 S. Ct. 2778 (1984); Arevalo v. U.S. Att’y Gen., 872 F.3d 1184, 1187
(11th Cir. 2017); Spaho v. U.S. Att’y Gen., 837 F.3d 1172, 1176 (11th Cir. 2016).
Where the BIA has interpreted an ambiguous provision of the INA in a published,
precedential decision, we defer to the BIA’s interpretation under Chevron, as long
as it reflects a permissible construction of the statute. See Negusie v. Holder, 555
U.S. 511, 516-17, 129 S. Ct. 1159, 1163-64 (2009).
Chevron prescribes a two-step analysis. First, we ask whether the statute at
issue is ambiguous, which requires the Court to consider “whether Congress has
directly spoken to the precise question at issue.” Vidiksis v. EPA, 612 F.3d 1150,
1154 (11th Cir. 2010) (quoting Chevron, 467 U.S. at 842-45, 104 S. Ct. at 2781-
83) (internal quotation marks omitted). If the statute is unambiguous, the Court
applies it according to its terms and no deference is due to the BIA. Carcieri v.
Salazar, 555 U.S. 379, 387, 129 S. Ct. 1058, 1063-64 (2009); see also Esquivel-
Quintana v. Sessions, __ U.S. __, 137 S. Ct. 1562, 1572 (2017) (declining to apply
Chevron deference to the BIA’s interpretation of one of the aggravated-felony
10
Case: 15-13845 Date Filed: 03/30/2018 Page: 11 of 34
definitions in the INA because “the statute, read in context, unambiguously
foreclose[d] the [BIA’s] interpretation”).
Second, if the statute is silent or ambiguous with respect to the specific issue
presented, we must then determine whether the BIA’s interpretation is reasonable
or based on a permissible construction of the statute. See Chevron, 467 U.S. at
843, 104 S. Ct. at 2781-82. A reasonable interpretation is one that is “rational and
consistent with the statute.” See Sullivan v. Everhart, 494 U.S. 83, 89, 110 S. Ct.
960, 964 (1990).
“[T]o determine whether an alien’s conviction qualifies as an aggravated
felony [under the INA], we employ a categorical approach by looking to the
statute . . . of conviction rather than the specific facts underlying the crime.”
Esquivel-Quintana, 137 S. Ct. at 1567-68 (internal quotation marks omitted).
“Under that approach, we ask whether the state statute defining the crime of
conviction categorically fits within the generic federal definition of a
corresponding aggravated felony.” Id. (internal quotation marks omitted). To
make that determination, we “line[] up [the state] crime’s elements alongside those
of the generic offense and see[] if they match.” Mathis v. United States, 579 U.S.
__, __, 136 S. Ct. 2243, 2248 (2016). In this regard, the court must “compare the
elements of the statute forming the basis of the defendant’s conviction with the
elements of the ‘generic’ crime,” and a conviction under the state statute will
11
Case: 15-13845 Date Filed: 03/30/2018 Page: 12 of 34
constitute a conviction for the generic offense only “if the statute’s elements are
the same as, or narrower than, those of the generic offense.” Descamps v. United
States, 570 U.S. 254, 257, 133 S. Ct. 2276, 2281 (2013).
When the state statute of conviction sets out multiple elements in the
alternative, and thereby defines multiple crimes, we employ a modification of the
categorical approach, in which we may look to certain judicial records to determine
which of the alternative crimes formed the basis for the defendant’s conviction.
Mathis, 579 U.S. at__, 136 S. Ct. at 2249. If we can tell which statutory phrase the
defendant was necessarily convicted under, we “then compare that crime, as the
categorical approach commands, with the relevant generic offense.” Id.
IV. MATTER OF L-G-H-
Because the BIA in Choizilme’s case relied on its precedent in Matter of
L-G-H-, we outline what that decision held and why.
Like Choizilme, the respondent in Matter of L-G-H- was convicted in 2006
of, among other things, selling cocaine in violation of Fla. Stat. § 893.13(1)(a)(1).
Matter of L-G-H-, 26 I&N Dec. at 366. Subsequently, DHS charged him as
removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having a prior aggravated-felony
conviction for illicit trafficking in a controlled substance. Id. An IJ found the
respondent removable, determining in relevant part “that the respondent was
convicted of an aggravated felony based on his conviction for selling cocaine.” Id.12
Case: 15-13845 Date Filed: 03/30/2018 Page: 13 of 34
The respondent appealed to the BIA, which likewise concluded “that the
respondent’s conviction for selling cocaine in violation of [Fla. Stat.
§ 893.13(1)(a)(1)] is for an aggravated felony under the illicit trafficking clause of
[8 U.S.C. § 1101(a)(43)(B)].” Id. at 368.
As a preliminary matter, the BIA explained that, prior to the enactment of
Fla. Stat. § 893.101, the Florida Supreme Court had held that the mens rea element
of the precursor crime for possession of a controlled substance contained two
components: (1) knowledge of the presence of the substance; and (2) knowledge of
its illicit nature. Id. at 367 (citing Scott v. State, 808 So. 2d 166, 169-70 (Fla.
2002), and Chicone v. State, 684 So. 2d 736, 738, 745-46 (Fla. 1996)). In 2002,
the Florida legislature determined that those cases were “contrary to legislative
intent and expressly eliminated knowledge of the substance’s illicit nature as an
element of controlled-substance offenses.” Id. (citing Fla. Stat. § 893.101(2002)).
Section 893.101 did not, however, eliminate knowledge of the presence of the
substance as an element of Florida controlled substance offenses, and created an
affirmative defense of lack of knowledge as to the substance’s illicit nature. Id.(citing State v. Adkins, 96 So. 3d 412, 415-16 (Fla. 2012)); see also Fla. Stat.
893.101(2) (establishing affirmative defense of lack of knowledge of illicit nature).
The BIA then explained that, in Donawa, this Court concluded that
§ 893.101 “had the effect of preventing drug trafficking offenses in Florida from
13
Case: 15-13845 Date Filed: 03/30/2018 Page: 14 of 34
qualifying as aggravated felonies under the ‘drug trafficking crime’ clause of
[§ 1101(a)(43)(B)].” Id. Describing the Donawa Court’s reasoning, the BIA
explained that “because Florida law eliminated knowledge of the illicit nature of
the controlled substance as a required element of the offense of drug trafficking
under section 893.13(1)(a),” the Florida statute was now broader than its federal
counterpart under § 924(c), which requires such knowledge for conviction. Id.
(citing Donawa, 735 F.3d at 1281-82). Consequently, the Donawa Court
concluded that convictions under Fla. Stat. § 893.13(1)(a) cannot qualify as
aggravated felonies under the “drug trafficking crime” clause of § 1101(a)(43)(B).
Id. at 367-68. The BIA noted, however, that the Donawa Court “expressly
declined to consider the possibility that such an offense could be an aggravated
felony under the ‘illicit trafficking’ clause of [§ 1101(a)(43)(B)].” Id. The BIA
then addressed that question in the first instance. See id.
The BIA first noted that the phrase “illicit trafficking” is not defined in the
INA. Id. at 368. However, the BIA previously had “determined that Congress
used the term to include ‘any state, federal, or qualified foreign felony conviction
involving the unlawful trading or dealing’ in a controlled substance as defined by
Federal law.” Id. (quoting Matter of Davis, 20 I&N Dec. 536, 540-41 (BIA 1992),
modified on other grounds by Matter of Yanez, 23 I&N Dec. 390 (BIA 2002)). In
other words, to constitute illicit trafficking, a state offense must be (1) a felony
14
Case: 15-13845 Date Filed: 03/30/2018 Page: 15 of 34
(2) that involves unlawful trading or dealing (3) in a controlled substance. See id.Because the record established that the respondent’s Florida cocaine conviction
met the first and third of these criteria, the BIA determined that “[t]he remaining
issue is whether the respondent’s conviction under [§ 893.13(1)(a)(1)] necessarily
involved the ‘unlawful trading or dealing’ in cocaine.” Id. at 368-69. To make
that assessment, the BIA had to decide whether the “illicit trafficking” clause of
§ 1101(a)(43)(B) included a specific mens rea requirement. Id. at 369.
Looking to the language of § 1101(a)(43)(B), the BIA noted that “[t]here is
no express mens rea requirement included in the term ‘illicit trafficking.’” Id. The
BIA reasoned, however, that because the phrase “including a drug trafficking
crime” in § 1101(a)(43)(B) “is set forth as a subset of ‘illicit trafficking,’ Congress
must have intended that ‘illicit trafficking’ would encompass other controlled
substance offenses beyond those defined to be a ‘drug trafficking crime.’” Id.
Accordingly, the BIA concluded that “illicit trafficking” need not be limited to
crimes that include knowledge of the illicit nature of the substance as a mens rea
requirement. Id.
The BIA further pointed out that when Congress revised the INA in 1990, “it
intended to expand, rather than limit, the removal of aliens convicted of drug
offenses.” Id. Moreover, there was no reason to believe that Congress intended to
impose a specific mens rea requirement, and thereby exclude state drug-trafficking
15
Case: 15-13845 Date Filed: 03/30/2018 Page: 16 of 34
crimes from the aggravated-felony definition solely because they did not require
knowledge of the illicit nature of the substance involved. Id. The BIA also noted
that “[t]he Supreme Court has long recognized the constitutional validity of
statutes related to public-welfare offenses, such as the illegal dealing of narcotics,
even though they lack a mens rea requirement.” Id. Although not aware of any
legislative history addressing the mens rea issue, the BIA determined that Congress
likely was aware of that Supreme Court precedent when it expanded the
aggravated-felony definition to include illicit trafficking. Id. at 370.
Finally, the BIA noted its prior holding in Matter of Davis that “‘illicit’ is
defined as ‘not permitted or allowed; prohibited; unlawful; as an illicit trade.’” Id.
(quoting Matter of Davis, 20 I&N Dec. at 541). In thus defining “illicit,” Matter of
Davis “gave effect to this plain meaning to construe the term ‘illicit’ as simply
referencing the illegality of the trafficking activity.” Id. The BIA explained that
this plain meaning did not necessarily suggest an illicit-nature mens rea
requirement “because a person can engage in the unlawful or illicit trading or
dealing in a controlled substance without knowing that the controlled substance
that is the subject of the transaction is illegal.” Id. Consequently, the BIA
“expressly [held] that there is no such mens rea required by the term ‘illicit,’ at
least not within the context of the statutory scheme established by Florida, where
16
Case: 15-13845 Date Filed: 03/30/2018 Page: 17 of 34
knowledge of the substance is still required and an affirmative defense is available
to show lack of knowledge of the illegal nature of the substance.” Id.
Having concluded that “illicit trafficking” does not include a mens rea
requirement, the BIA then considered whether § 893.13(1)(a)(1) “is otherwise a
categorical match to the illicit trafficking clause” of the INA. Id. at 371. The BIA
reiterated that to qualify as illicit trafficking, “the offense must involve a
commercial transaction.” Id. at 371-72. Examining the text of § 893.13(1)(a), the
BIA found that the Florida statute “is divisible as to the offenses it prohibits,”
explaining that Florida’s standard jury instructions make clear that § 893.13(1)(a)
sets out multiple discrete offenses. Id. at 372. Because it concluded that
§ 893.13(1)(a) is divisible, the BIA applied the modified categorical approach and
looked to the records of the respondent’s conviction to determine if his offense
categorically qualified as “illicit trafficking.” Id. at 372-73. Those records showed
that the respondent was convicted of selling cocaine. Id. at 373. And because the
Florida courts have consistently held that “consideration is part of every sale”
under § 893.13(1)(a), the BIA concluded that selling cocaine under § 893.13(1)(a)
“is categorically an offense involving a commercial transaction and therefore
meets the illicit trafficking definition” in the INA. Id. (internal quotation marks
omitted).
17
Case: 15-13845 Date Filed: 03/30/2018 Page: 18 of 34
V. OUR PRECEDENT IN SPAHO
Subsequent to Donawa and Matter of L-G-H-, this Court in Spaho squarely
addressed whether a conviction for the sale of a controlled substance in violation of
Fla. Stat. § 893.13(1)(a)(1) is an aggravated felony under the illicit-trafficking
portion of 8 U.S.C. § 1101(a)(43)(B). Spaho, 837 F.3d at 1175-76. The petitioner
in Spaho argued that the BIA erroneously determined that § 893.13(1)(a)(1) is
divisible and, therefore, erroneously applied the modified categorical approach in
determining that his conviction under § 893.13(1)(a)(1) constituted an
illicit-trafficking aggravated felony. Id. at 1176.
The Spaho Court concluded that “[i]n this case, the Board was correct in
upholding the IJ’s determination that § 893.13(1)(a)(1) is divisible.” Id. at 1177.
The Spaho Court explained that, in determining divisibility, we focus primarily on
the statutory text. Id. “Section 893.13(1)(a) provides in relevant part that ‘a
person may not sell, manufacture, or deliver, or possess with intent to sell,
manufacture, or deliver, a controlled substance.’” Id. (quoting Fla. Stat.
§ 893.13(1)(a)). Examining this plain language, the Spaho Court concluded that
the text of § 893.13(1)(a) “delineates six discrete alternative elements: sale,
delivery, manufacture, possession with intent to sell, possession with intent to
deliver, and possession with intent to manufacture.” Spaho, 837 F.3d at 1177.
18
Case: 15-13845 Date Filed: 03/30/2018 Page: 19 of 34
Thus, consistent with the BIA’s analysis in that case, the Spaho Court determined
that § 893.13(1)(a) is divisible. Id.
In reaching this conclusion, the Spaho Court rejected the petitioner’s
argument that the BIA’s divisibility determination was in conflict with Donawa.
Id. at 1178. The Spaho Court acknowledged that Donawa “applied the categorical
approach for indivisible statutes in finding that a conviction under
§ 893.13(1)(a)(2) did not qualify as an aggravated felony under the drug trafficking
component of 8 U.S.C. § 1101(a)(43)(B).” Id. But the Spaho Court distinguished
Donawa because it “dealt with a different and narrower question than that
presented here”—namely, whether the affirmative defense of lack of knowledge of
the illicit nature of the substance established by Fla. Stat. § 893.101 effectively
created two separate offenses under § 893.13(1)(a), one with a mens rea
requirement and one without. See id.
The Spaho Court explained that although Donawa concluded that
§ 893.101’s affirmative defense was insufficient to render § 893.13(1)(a)(2)
divisible as to its mens rea component, Donawa “did not analyze the actus reus
element of § 893.13(1)(a) to ascertain whether the separate acts forbidden by the
statute rendered it divisible by establishing multiple, alternative offenses of which
a defendant could be convicted.” Id. (emphasis added). The Spaho Court further
noted that Donawa had no reason to perform that analysis because the
19
Case: 15-13845 Date Filed: 03/30/2018 Page: 20 of 34
§ 893.13(1)(a)’s lower mens rea requirement meant that it categorically was not a
“drug trafficking crime” under § 1101(a)(43)(B). Id. By contrast, the Spaho Court
could not “stop where the Donawa Court did” because illicit trafficking “does not
have the same heightened mens rea requirement as drug trafficking crimes.” Id.
(citing Matter of L-G-H-, 26 I&N Dec. at 370). Thus, performing the appropriate
textual analysis of § 893.13(1)(a), the Spaho Court “agree[d] with the Board that
the statute is divisible with respect to the ‘act’ element and that the modified
categorical approach applies.” Id.
Applying that approach, the Spaho Court explained that some of the
alternative elements set forth in § 893.13(1)(a) involve illicit trafficking and some
do not. Id. Mirroring the BIA’s analysis in Matter of L-G-H-, the Spaho Court
defined “illicit trafficking” as “any state, federal, or qualified foreign felony
conviction involving the unlawful trading or dealing of any controlled substance.”
Id. (quoting Matter of Davis, 20 I&N Dec. at 541). The Spaho Court further
explained that “unlawful trading or dealing” requires “commercial conduct,” and
“[t]wo of the alternative elements of § 893.13(1)(a), sale and possession with intent
to sell, are inherently commercial and qualify under the definition of an illicit
trafficking aggravated felony.” Id. at 1178-79 & n.3 (citing Matter of L-G-H- for
the proposition that “sale” under Florida law “categorically requires
consideration”). Because “Spaho was adjudged guilty of selling a controlled
20
Case: 15-13845 Date Filed: 03/30/2018 Page: 21 of 34
substance” under § 893.13(1)(a)(1), the Spaho Court concluded that his conviction
“easily [fell] within the generic ‘illicit trafficking’ offense.” Id. at 1179.
Before leaving Spaho, we point out that, in citing Matter of L-G-H-, the
Spaho Court noted that the BIA concluded in that case that “illicit trafficking” does
not require knowledge of the illicit nature of the substance as a mens rea element,
at least in the context of the Florida statute. Spaho, 837 F.3d at 1178 n.2. The
Spaho Court further noted that “Spaho does not challenge the correctness of the
BIA’s definition of illicit trafficking, and we express no opinion on it.” Id.
VI. GORDON
Subsequently, this Court has followed Spaho in applying the modified
categorical approach to determine whether an offense under § 893.13(1)(a)
qualifies as an illicit-trafficking aggravated felony. See Gordon, 861 F.3d at 1318-
19. In Gordon, the petitioner had two prior convictions for selling or delivering
cannabis, in violation of § 893.13(1)(a). Id. at 1317. Like the petitioner in Spaho,
the petitioner in Gordon argued that the BIA erred in applying the modified
categorical approach to determine that his convictions were aggravated felonies.
Id. at 1318.
Following the same divisibility analysis outlined in Spaho, the Gordon Court
explained that the text of § 893.13(1)(a) clearly delineates six discrete alternative
elements, meaning that “as we held in Spaho, the statute is divisible.” Id. at 1319.
21
Case: 15-13845 Date Filed: 03/30/2018 Page: 22 of 34
Applying the modified categorical approach, the Gordon Court then addressed
whether the petitioner’s convictions qualified as “illicit trafficking.” Id. Like the
Spaho Court, the Gordon Court recognized that some elements of § 893.13(1)(a)
involve illicit trafficking and some do not because “illicit trafficking” involves the
“unlawful trading or dealing of [a] controlled substance,” which requires
“commercial conduct.” Id. (internal quotations omitted). The Gordon Court then
noted, as had Spaho, that sale and possession with intent to sell under
§ 893.13(1)(a) inherently involve commercial conduct, while the other four
alternative elements might not. Id.
In Gordon the petitioner’s convictions were for sale or delivery of a
controlled substance in violation of § 893.13(1)(a). Id. The Gordon Court
explained that, under Florida law, “sale and delivery of controlled substances are
separate offenses with separate definitions.” Id. (internal quotations omitted). And
“[d]elivery, unlike sale, does not include an element of consideration.” Id. Thus,
the Gordon Court concluded that a conviction for delivery of a controlled
substance under § 893.13(1)(a) does not qualify as an aggravated felony. Id.
The Gordon Court then explained that the documents relied on by the BIA to
determine which of § 893.13(1)(a)’s elements formed the basis of the petitioner’s
convictions “d[id] not disclose whether Mr. Gordon was convicted for violating the
element of sale or for violating the element of delivery.” Id. And because the BIA
22
Case: 15-13845 Date Filed: 03/30/2018 Page: 23 of 34
had to presume that Gordon’s conviction rested on the least of the acts
criminalized, “it had to presume that the conviction was for delivery, and
accordingly not an aggravated felony.” Id. With this background, we turn to
Choizilme’s claims on appeal.
VII. ANALYSIS OF CHOIZILME’S CLAIM
At issue in this appeal is Choizilme’s 2006 conviction under Fla. Stat.
§ 893.13(1)(a)(1). Here, both parties agree that, of the six discrete alternative
elements outlined in § 893.13(1)(a)(1), the “sale” element formed the basis of
Choizilme’s 2006 conviction, and the state court records submitted by the
government during Choizilme’s immigration proceedings confirm this to be the
case. See Mathis, 136 S. Ct. at 2249; see also Gordon, 861 F.3d at 1319; Spaho,
837 F.3d at 1178. Accordingly, we must determine whether a conviction for sale
of cocaine under Fla. Stat. § 893.13(1)(a)(1) categorically qualifies as illicit
trafficking in a controlled substance under § 1101(a)(43)(B). See Mathis, 136
S. Ct. at 2249.
On appeal, Choizilme argues that his sale-of-cocaine conviction cannot
qualify as “illicit trafficking” because the Florida statute does not include
knowledge of the illicit nature of the controlled substance as an element of the
offense. Choizilme contends that, unlike the Florida statute and contrary to the
BIA’s conclusion in Matter of L-G-H-, the generic federal definition of illicit
23
Case: 15-13845 Date Filed: 03/30/2018 Page: 24 of 34
trafficking requires knowledge of the illicit nature of the substance as a mens rea
element. As such, he maintains that convictions under Fla. Stat. § 893.13(1)(a),
which lack that mens rea element, categorically do not qualify as aggravated
felonies.
As described above, Spaho held, using the definition of illicit trafficking
described in Matter of L-G-H-, that a conviction such as Choizilme’s for sale of
cocaine under § 893.13(1)(a)(1) constitutes illicit trafficking within the meaning of
§ 1101(a)(43)(B). See Spaho, 837 F.3d at 1179. The Spaho Court, however,
expressly stated that it was not addressing the argument, which Choizilme now
raises, regarding the BIA’s interpretation of the term “illicit trafficking” in Matter
of L-G-H- as not including an illicit nature mens rea element. See id. at 1178 n.2
(“Spaho does not challenge the correctness of the BIA’s definition of illicit
trafficking [with regard to the mens rea requirement], and we express no opinion
on it.”). Spaho left that question for another day. Here now, Choizilme raises the
issue left open in Spaho. Consequently, we must address in the first instance
whether Matter of L-G-H- correctly determined that “illicit trafficking” does not
require knowledge of the illicit nature of the substance trafficked. For the
following reasons, we conclude that the BIA’s analysis of the mens rea
24
Case: 15-13845 Date Filed: 03/30/2018 Page: 25 of 34
requirement for “illicit trafficking” under § 1101(a)(43)(B) in Matter of L-G-H- is
correct.5
Like the BIA, “[o]ur analysis begins with the language of the statute.” See
Esquivel-Quintana, 137 S. Ct. at 1569 (internal quotations omitted). Section
§ 1101(a)(43)(B) provides that the term “aggravated felony” includes “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).” 8
U.S.C. § 1101(a)(43)(B). Although the “drug trafficking crime” portion of this
definition includes an illicit-nature mens rea requirement, see Donawa, 735 F.3d at
1281, the BIA explained in Matter of L-G-H- that the use of the term “including”
in § 1101(a)(43)(B) demonstrates that “drug trafficking crimes” are only a subset
of “illicit trafficking” under the INA. See 8 U.S.C. § 1101(a)(43)(B); Matter of
L-G-H-, 26 I&N Dec. at 369. Consequently, “Congress must have intended that
‘illicit trafficking’ would encompass other controlled substance offenses beyond
those defined to be a ‘drug trafficking crime.’” Matter of L-G-H-, 26 I&N Dec. at
369.
Furthermore, as the BIA pointed out in Matter of L-G-H-, the ordinary
meaning of the word “illicit” simply denotes the illegality of a particular activity—
in this case, trafficking in a controlled substance. Id. at 370; see also, e.g., Black’s
5
We need not decide whether to defer to the BIA’s decision or review it de novo because,
in any event, we agree with its analysis and conclusion.
25
Case: 15-13845 Date Filed: 03/30/2018 Page: 26 of 34
Law Dictionary (10th ed. 2014) (defining “illicit” as “[i]llegal or improper”);
Oxford English Dictionary (2d ed. 1989) (defining “illicit” as “[n]ot authorized or
allowed,” “improper,” and “unlawful”). Thus, the use of the term “illicit” does not
necessarily imply a mens rea requirement, as a person may engage in the unlawful
trafficking of a controlled substance without knowing the substance that is the
subject of the transaction is illegal. Matter of L-G-H-, 26 I&N Dec. at 370.
Finally, as the BIA noted in Matter of L-G-H-, Congress has generally
evinced an “inten[t] to expand, rather than limit, the removal of aliens convicted of
drug offenses.” Id. at 369 (citing Matter of Esqueda, 20 I&N Dec. 850, 853-54 &
n.3 (BIA 1994) (“[I]t is well recognized that Congress has historically exhibited a
strong national policy to deport aliens convicted of drug offenses from our
country.”)). It stands to reason, then, that Congress would not wish to exclude
from the definition of “illicit trafficking” state offenses that otherwise qualify as
“unlawful trading or dealing of [a] controlled substance” merely because they lack
an illicit nature mens rea requirement. See id. This is particularly true here, where
Florida law explicitly provides a safeguard against convictions for truly innocent
conduct. See Fla. Stat. § 893.101(2); Adkins, 96 So. 3d at 422. As the Florida
Supreme Court has explained:
Any concern that entirely innocent conduct will be punished with a
criminal sanction under chapter 893 is obviated by the statutory
provision that allows a defendant to raise the affirmative defense of an
absence of knowledge of the illicit nature of the controlled substance.
26
Case: 15-13845 Date Filed: 03/30/2018 Page: 27 of 34
In the unusual circumstance where an individual has actual or
constructive possession of a controlled substance but has no
knowledge that the substance is illicit, the defendant may present such
a defense to the jury.
Adkins, 96 So. 3d at 422.
In sum, we agree with the BIA’s analysis in Matter of L-G-H- and conclude
that “illicit trafficking” under § 1101(a)(43)(B) does not require a specific mens
rea of knowledge of the illicit nature of the controlled substance being trafficked.
Accordingly, consistent with the BIA’s decision in Matter of L-G-H- and this
Court’s decision in Spaho, we conclude that the BIA properly determined that
Choizilme’s 2006 conviction for sale of cocaine in violation of § 893.13(1)(a)(1)
qualifies as an illicit-trafficking aggravated felony under the INA, making
Choizilme ineligible for cancellation of removal. We therefore deny Choizilme’s
petition for review.
PETITION FOR REVIEW DENIED.
27
Case: 15-13845 Date Filed: 03/30/2018 Page: 28 of 34
JORDAN, Circuit Judge, concurring in the judgment.
I concur in the judgment.
In Spaho v. U.S. Atty. General, 837 F.3d 1172, 1178 (11th Cir. 2012)—
exercising plenary review independent of any BIA interpretation—we squarely
held that a conviction under Fla. Stat. § 893.13(1)(a)(1) “constitutes an ‘illicit
trafficking’ aggravated felony” pursuant to 8 U.S.C. § 1101(a)(43)(B). I dissented
in Spaho and continue to believe it was wrongly decided, see id. at 1179–82
(Jordan, J., dissenting), but it seems to me that the case necessarily drives the result
here because Mr. Choizilme was also convicted of violating § 893.13(1)(a)(1).
The fact that the Spaho panel, see id. at 1178 n.2, did not address the BIA’s
interpretation of the term “illicit trafficking in a controlled substance[,] . . .
including a drug trafficking crime,” § 1101(a)(43)(B), does not render the decision
any less binding. See Tippit v. Reliance Standard Life, 457 F.3d 1227, 1234 (11th
Cir. 2006) (explaining that a prior panel decision “cannot be circumvented or
ignored on the basis of arguments not made or considered by the prior panel”).
The majority apparently thinks otherwise, however, and engages in its own
interpretation of the term.
If we adhere to the portion of Spaho that agreed with the BIA’s use of the
modified categorical approach, see 837 F.3d at 1177, but still get to decide anew
whether a conviction under § 893.13(1)(a)(1) constitutes “illicit trafficking in a
28
Case: 15-13845 Date Filed: 03/30/2018 Page: 29 of 34
controlled substance,” I conclude that the term is ambiguous. I would deny Mr.
Choizilme’s petition, but only because the BIA’s interpretation of that term in
Matter of L-G-H, 26 I. & N. Dec. 365 (BIA 2014), is due deference under
Chevron, U.S.A., Inc. v. Nat’l Resources Defense Council, Inc., 467 U.S. 837(1984).
*****
The Supreme Court has told us that, in interpreting an undefined term in the
Immigration and Nationality Act, we should look at the language of the relevant
statute, including the everyday understanding of the term in question, followed by
the structure of the statute, the definition of the term in any related federal statutes,
and the term’s generic meaning as gleaned from state criminal codes. See
Esquivel-Quintana v. Sessions, 137 S. Ct 1562, 1569–71 (2017). As I explain
below, this multi-step analysis does not provide any clear answers here.
First, the term “illicit trafficking in a controlled substance[,] . . . including a
drug trafficking crime” is a “riddle wrapped in a mystery inside an enigma.”
Churchill by Himself: The Definitive Collection of Quotations 145 (R. Langworth
ed. 2008). There appears to be no generally accepted definition of the term “illicit
trafficking”—much less “illicit trafficking in a controlled substance”—so we must
turn to what “illicit” and “trafficking” mean. The everyday understanding of
“illicit” is “unlawful; esp. not sanctioned by law, rule, or custom.” 1 Shorter
29
Case: 15-13845 Date Filed: 03/30/2018 Page: 30 of 34
Oxford English Dictionary 1317 (5th ed. 2002). See also Black’s Law Dictionary
865 (10th ed. 2014) (“[i]llegal or improper”). “Trafficking” means “[t]he act of
transporting, trading, or dealing, esp. [i]llegal goods or people.” Id. at 1726. See
also The American Heritage Dictionary of the English Language 1830 (4th ed.
2009) (“to carry on trade or other dealings”); Lopez v. Gonzales, 549 U.S. 47, 53
(2006) (“[O]rdinarily ‘trafficking’ means some sort of commercial dealing.”).
These individual definitions of “illicit” and “trafficking,” however, do not
really tell us what the two words mean when they are combined. If “trafficking”
already connotes some level of illegality or unlawfulness, as Black’s Law
Dictionary suggests, it is difficult to see what “illicit” adds to the calculus. And
even if “illicit” means something else as an adjective for “trafficking,” it is not
apparent what that something else is. Is it the level of mens rea? Or the quantity
being trafficked? Or something else altogether? The text does not yield any ready
answers.
Second, the structure of the INA does not help. The majority reasons that
the use of “including a drug trafficking crime,” following the term “illicit
trafficking in a controlled substance,” indicates that “drug trafficking” is a subset
of “illicit trafficking.” The word “including,” according to the majority, generally
connotes an illustrative example of the preceding general category. See Maj. Op.
at 26. The flaw with this analysis is that, unlike most broad general categories that
30
Case: 15-13845 Date Filed: 03/30/2018 Page: 31 of 34
are followed by narrower illustrative examples, here the example (“a drug
trafficking crime”) is in some ways broader than the general category (“illicit
trafficking in a controlled substance”), and in those instances the example
swallows the general category. The BIA recognized this very fact in Matter of L-
G-H, 26 I. & N. Dec. at 369 n.6 (“the ‘subset’ is both broader and narrower than
‘illicit trafficking’”). That is because of the way “drug trafficking crime” is
defined in Title 21 of the U.S. Code. For example, felony convictions for
recidivist simple possession under 21 U.S.C. § 844(a) are “drug trafficking
crime[s],” but because those offenses do not have an element of commercial
dealing they do not qualify as “illicit trafficking in a controlled substance.” See
Lopez v. Gonzales, 549 U.S. 47, 55 n.6 (2006) (“state possession crimes that
correspond to felony violations . . . such as . . . recidivist possession, see 21 U.S.C.
§ 844(a), clearly fall within the definitions used by congress in . . . §
1101(a)(43)(B) and § 924(c)(2)”). So it is impossible to say with any certainty that
“a drug trafficking crime” is just a narrower subset of “illicit trafficking in a
controlled substance.”
The majority’s reading also potentially renders “drug trafficking crime”
superfluous. If mens rea is the element that distinguishes “illicit trafficking in a
controlled substance” from a “drug trafficking crime,” see Donawa v. U.S. Atty.
General, 735 F.3d 1275, 1281 (11th Cir. 2013) (holding that the generic definition
31
Case: 15-13845 Date Filed: 03/30/2018 Page: 32 of 34
of “drug trafficking crime” requires proof that the defendant had knowledge of the
nature of the substance in question), then convictions that do not qualify as “drug
trafficking crime[s]” (because they lack the necessary mens rea) will always
qualify as “illicit trafficking.” And because both terms deal exclusively with
controlled substances, the term “drug trafficking crime” may become superfluous.
See United States v. Campos-Serrano, 404 U.S. 293, 301 n.14 (1971) (“A statute
ought, upon the whole, to be so construed that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or insignificant.”) (internal citation
and quotation omitted). In sum, the structure of the INA does not resolve the
question before us.
Third, the use of the same term in related federal statutes is equally
unhelpful. To the extent that other federal statutes reference “illicit trafficking,”
the term is left undefined. See, e.g., 6 U.S.C. § 348(a)(1) (defining “situational
awareness” as knowledge and understanding of current unlawful cross-border
activity, including threats and trends concerning “illicit trafficking” and unlawful
crossings); 22 U.S.C. § 2291f(a)(2) (prohibiting the President from providing
assistance to any individual or entity that “is or has been an illicit trafficker in any .
. . controlled substance or is or has been a knowing assistor, abettor conspirator, or
colluder with others in the illicit trafficking in any such substance”).
32
Case: 15-13845 Date Filed: 03/30/2018 Page: 33 of 34
The term “illicit trafficking” is used in other provisions of the INA, see §
1182(a)(2)(C), including a neighboring provision, see § 1101(a)(43)(C), but those
provisions also leave the term undefined, and cases construing those provisions
have deferred to the BIA’s interpretation. See Soto-Hernandez v. Holder, 729 F.3d
1, 3–4 (1st Cir. 2013) (holding that the BIA’s interpretation of “illicit trafficking in
firearms,” as used in § 1101(a)(43)(C), is entitled to Chevron deference); Nguyen
v. Holder, 336 Fed. App’x 43, 46 (2d Cir. 2009) (concluding that “illicit
trafficking,” as used in § 1182(a)(2)(C), is ambiguous and deferring to the BIA’s
interpretation).
Finally, the term “illicit trafficking” is used in some state statutes. But,
again, it is left undefined. See, e.g., Alaska Stat. § 17.30.100; Colo. Rev. Stat. Ann.
§ 18-16-101; 720 Ill. Stat. Ann. Ch. 570/100; Ohio Rev. Code Ann. § 3719.70; 1
L.P.R.A. § 5161; Miss. Code Ann. § 41-29-159 (2007); Utah Code Ann. § 58-38a-
203.
At the end of the day, the Esquivel-Quintana factors do not provide any
clear guidance, and we are left with an ambiguous term. In my view, the BIA’s
interpretation of the ambiguous term “illicit trafficking in a controlled substance”
as not requiring mens rea, see Matter of L-G-H, 26 I. & N. at 369–70, is entitled to
Chevron deference. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999)
(“the BIA should be accorded Chevron deference as it gives ambiguous statutory
33
Case: 15-13845 Date Filed: 03/30/2018 Page: 34 of 34
terms concrete meaning through a process of case-by-case adjudication”) (internal
quotation and citation omitted). Although I can’t say with confidence that the
BIA’s interpretation is right, I also can’t say with any certainty that it is wrong.
Under the circumstances, Chevron deference is warranted.
*****
When a term in the INA is ambiguous, the BIA’s interpretation by way of an
agency opinion is afforded Chevron deference. I would deny Mr. Choizilme’s
petition on that basis.
34