Shariff David Bula Lopez v. U.S. Attorney General

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15179
________________________
Agency No. A072-836-227
SHARIFF DAVID BULA LOPEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 21, 2018)
Before ED CARNES, Chief Judge, and ROSENBAUM and HULL, Circuit Judges.
HULL, Circuit Judge:
Shariff Bula Lopez petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order of
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removal. After review, and with the benefit of oral argument, we dismiss in part
and deny in part Bula Lopez’s petition.
I. BACKGROUND
A. Immigration Proceedings
In 1989, Bula Lopez, a native and citizen of Colombia, moved to the United
States, and in 1993 he became a lawful permanent resident (“LPR”) of the United
States. In 1997, Bula Lopez pled guilty “in his best interest” in Florida state court
to one count of possession with intent to deliver Flunitrazepam1 and was sentenced
to two years’ probation. Upon returning from a trip abroad in April 2010, Bula
Lopez applied for admission to the United States as an LPR and was paroled into
the United States pending removal proceedings based on his prior drug conviction.
In September 2010, the Department of Homeland Security (“DHS”) issued
Bula Lopez a Notice to Appear (“NTA”) charging him as removable, in relevant
part: (1) under Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i)(I), 8
U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of a crime involving moral
turpitude (“CIMT”); and (2) under INA § 212(a)(2)(A)(i)(II), 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), for having been convicted of violating a law relating to a
controlled substance, as defined in the federal Controlled Substances Act (“CSA”).
1
Flunitrazepam, also known as Rohypnol, is a sedative commonly used as a date rape
drug.
2
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Both charges were based on Bula Lopez’s 1997 Florida conviction for possession
with intent to deliver Flunitrazepam.
Bula Lopez, through counsel, denied these charges of removability. Before
the IJ, Bula Lopez argued, among other things, that his 1997 Florida conviction
was for simple possession of Flunitrazepam, not possession with intent to deliver,
and thus his prior conviction did not constitute a CIMT.
B. IJ’s Order
In a written order, the IJ found that Bula Lopez’s Florida conviction was for
possession with intent to deliver, not simple possession. Florida Statute
§ 893.13(1)(a) criminalizes possession with intent to deliver, whereas Florida
Statute § 893.13(6)(a) criminalizes simple possession.
The IJ noted that DHS bears the burden of proving Bula Lopez’s
inadmissibility by clear and convincing evidence. The IJ acknowledged there was
“some ambiguity” regarding the statutory basis for Bula Lopez’s Flunitrazepam
conviction. The language of the guilty plea form, plea hearing transcript,
sentencing documents, and arrest warrant affidavit all described his offense as
possession with intent to deliver. However, one document—the information—
referred to § 893.13(6)(a), although it also described the offense as possession with
intent to deliver. The IJ therefore found “that the preponderance of the evidence
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supports the conclusion that [Bula Lopez] was convicted under Fla. Stat.
§ 893.13(1), and not Fla. Stat. § 893.13(6)(a).”
Having determined that Bula Lopez’s prior conviction was for possession
with intent to deliver Flunitrazepam under § 893.13(1)(a), the IJ then determined
that his conviction qualified as a CIMT under the INA and sustained that charge of
removability. The IJ did not, however, sustain Bula Lopez’s second charge of
removability, for having violated a law relating to a controlled substance, as
defined in the CSA. The IJ concluded that Bula Lopez’s conviction did not qualify
as a controlled substance violation because Flunitrazepam was not listed in the
CSA schedules found in 21 U.S.C. § 812 and, thus, Bula Lopez’s Flunitrazepam
conviction did not “relate to a controlled substance” within the meaning of the
INA.
C. Appeal to the BIA
Bula Lopez, through counsel, appealed to the BIA. On appeal, Bula Lopez
argued that the IJ applied the wrong standard of proof in determining that his 1997
Florida conviction was for possession with intent to deliver, rather than mere
possession. Bula Lopez asserted that DHS had the burden to prove his conviction
was a CIMT by clear and convincing evidence, but the IJ erroneously applied a
preponderance of the evidence standard. Bula Lopez also argued that the IJ erred
in sustaining the CIMT charge because Flunitrazepam was not a federally
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controlled substance, and his offense, whether under § 893.13(6)(a) or
§ 893.13(1)(a), lacked the requisite “evil intent” mens rea requirement. Bula
Lopez also requested a remand to pursue a waiver of inadmissibility under INA
§ 212(h).
In response, DHS moved for summary affirmance of the IJ’s order. DHS
argued that the IJ correctly found Bula Lopez was convicted of possession with
intent to deliver Flunitrazepam and that his conviction constituted a CIMT. In
addition, DHS argued that, contrary to the IJ’s finding, Flunitrazepam is a federally
controlled substance under the CSA.
In his reply brief, Bula Lopez contended, among other things, that the BIA
could not consider the IJ’s finding that Flunitrazepam is not a controlled substance
because DHS did not file a cross-appeal.
D. BIA Decision
The BIA dismissed Bula Lopez’s appeal and denied his motion to remand.
First, the BIA addressed Bula Lopez’s argument that the IJ applied the wrong
burden of proof. The BIA noted that the IJ identified the correct clear and
convincing evidence standard in its decision, but also referred to the incorrect
preponderance of the evidence standard in making its finding regarding Bula
Lopez’s statute of conviction. The BIA concluded, however, that “this
misstatement [was] not material” because the record provided clear and convincing
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evidence that Bula Lopez was convicted under § 893.13(1)(a) for possession with
intent to deliver Flunitrazepam.
Next, the BIA affirmed the IJ’s determination that Bula Lopez’s conviction
was a CIMT. In the course of that analysis, the BIA “address[ed] the [IJ’s]
erroneous determination that Flunitrazepam is not a controlled substance under
immigration law.” The BIA explained that: (1) although Flunitrazepam is “not
directly listed at 21 U.S.C. § 812 (listing scheduled substances), this section of the
law specifically provides for updating of the schedules by the Attorney General,
under specified administrative procedures”; (2) “the additions and deletions are
then to be listed in the Code of Federal Regulations at 21 C.F.R. § 1308”; and
(3) “Flunitrazepam is listed at 21 C.F.R. § 1308.14(c)(23) and is a controlled
substance under schedule IV.” Because it concluded that Flunitrazepam is a
controlled substance, the BIA found Bula Lopez also was removable for having
violated a law relating to a controlled substance under INA § 212(a)(2)(A)(i)(II), 8
U.S.C. § 1182(a)(2)(A)(i)(II).
Further, the BIA expressly rejected Bula Lopez’s argument that it could not
consider the IJ’s finding regarding Flunitrazepam on appeal because DHS had not
cross-appealed. The BIA stated: “No separate appeal is required where, as here,
the non-appealing party seeks to defend the [IJ’s] decision based on different
reasons.”
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The BIA also denied Bula Lopez’s request for a remand to pursue a § 212(h)
waiver. The BIA concluded that Bula Lopez was ineligible for such relief because
his Flunitrazepam conviction was a “drug trafficking crime” and, therefore, an
aggravated felony under the INA.
Bula Lopez now petitions this Court for review.
II. STANDARD OF REVIEW
When the BIA issues its own decision, we review only that decision, except
to the extent the BIA expressly adopts the IJ’s opinion or reasoning. Seck v. U.S.
Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). We review the BIA’s legal
conclusions de novo and its factual determinations under the substantial evidence
test. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). We apply
the substantial evidence test even when, as here, DHS was required to prove
removability by clear and convincing evidence in the administrative proceedings.
Adefemi v. Ashcroft, 386 F.3d 1022, 1028 (11th Cir. 2004) (en banc). Under the
substantial evidence test, we will affirm the BIA’s factual findings as long as they
are “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th
Cir. 2015) (internal quotations omitted). We will reverse the BIA’s factual
findings only if the record compels reversal, and the mere fact that the record may
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support a contrary conclusion is insufficient to justify reversal of the BIA’s
findings. Id.Bula Lopez argues that the BIA erred: (1) in concluding his prior conviction
was for possession with intent to deliver Flunitrazepam because the records of his
conviction are ambiguous; (2) in considering DHS’s argument on appeal that,
contrary to the IJ’s determination, Bula Lopez was removable for having
committed a controlled substance violation because DHS did not file a cross-
appeal; and (3) in concluding that Flunitrazepam is a controlled substance for
purposes of the INA, such that his conviction qualifies as a CIMT, controlled
substance violation, and aggravated felony. We address each issue in turn.
III. STATUTE OF CONVICTION
As a preliminary matter, we must address whether we have jurisdiction to
review the BIA’s factual determination that Bula Lopez was convicted of
possession with intent to deliver under Fla. Stat. § 893.13(1)(a), rather than simple
possession under Fla. Stat. § 893.13(6)(a). Section 242 of the INA limits our
jurisdiction to review final orders of removal against criminal aliens who have
been found removable for having committed a controlled substance violation. See
INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (“[N]o court shall have jurisdiction
to review any final order of removal against an alien who is removable by reason
of having committed a criminal offense covered in section 1182(a)(2) . . . of this
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title . . . .”); INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled
substance violation). In such cases, our jurisdiction is limited to constitutional
claims and questions of law. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)
(“Nothing in subparagraph . . . (C) . . . shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with this section.”).
However, even in cases involving criminal aliens, we “have jurisdiction to
determine underlying facts that establish our jurisdiction or lack of it.” Garces v.
U.S. Att’y Gen., 611 F.3d 1337, 1343 (11th Cir. 2010). In Garces, for example, we
had to answer the underlying factual question of whether the alien “in fact
‘committed a criminal offense.’” Id. Only by answering that question could we
determine whether the alien was removable for having committed a covered
criminal offense and, therefore, whether INA § 242’s jurisdictional limitations
applied. See id. Thus, “the jurisdictional question merge[d] into our consideration
of the merits.” Id.; see also Adefemi v. Ashcroft, 358 F.3d 828, 833 (11th Cir.
2004) (“Our jurisdictional inquiry thus merges with the merits of Adefemi’s
challenge, which rests on his assertion that the INS failed to prove a qualifying
firearms conviction by sufficient evidence. We therefore proceed to the merits on
the understanding that we have jurisdiction to grant relief if the government failed
to prove that Adefemi was convicted of a firearms offense.”), vacated in part on
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reh’g en banc, Adefemi, 386 F.3d at 1024 & n.2 (reaffirming the panel’s
jurisdictional ruling).
Here, we must answer an underlying factual question—whether Bula Lopez
was convicted of possession with intent to deliver Flunitrazepam or merely simple
possession of Flunitrazepam—to determine whether he is removable because of
that criminal conviction and, therefore, whether INA § 242’s jurisdictional
limitations apply. Thus, as in Garces and Adefemi, our jurisdictional inquiry
merges with the merits of Bula Lopez’s challenge, which rests in part on his
assertion that DHS failed to prove his statute of conviction by sufficient evidence.
See Garces, 611 F.3d at 1343; Adefemi, 358 F.3d at 833.
We have no trouble concluding, on this record, that substantial evidence
supports the BIA’s finding that Bula Lopez was convicted under § 893.13(1)(a)
(possession with intent to deliver), and not § 893.13(6)(a) (simple possession).
Though the information does cite § 893.13(6)(a), it twice refers to Bula Lopez’s
offense as “possession with intent to deliver flunitrazepam.” And aside from this
one citation, no other document in the record indicates that Bula Lopez’s
conviction was for simple possession. Indeed, Bula Lopez’s signed guilty plea
form likewise refers to the charge as “possession with intent to deliver
flunitrazepam,” as does the plea hearing transcript. Three state court sentencing
documents and the arrest warrant affidavit also refer to Bula Lopez’s offense as,
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respectively, (1) “poss w/ intent to deliver/sell flunitrazepam,” (2) “poss with intent
to del.,” (3) “poss/sell/deliv flunitrazepam,” and (4) “poss w/ intent to deliver—
flunitrazepam.” In short, reasonable, substantial evidence supports a finding that
Bula Lopez was convicted of possession with intent to deliver under
§ 893.13(1)(a), and the single reference in the information to § 893.13(6)(a) does
not compel reversal. 2 See Indrawati, 779 F.3d at 1297.
Having concluded that substantial evidence supports the BIA’s factual
finding regarding Bula Lopez’s statute of conviction, we lack jurisdiction under
INA § 242 to grant Bula Lopez relief on this claim. See INA § 242(a)(2)(C), (D),
8 U.S.C. § 1252(a)(2)(C), (D); Adefemi, 358 F.3d at 833 (indicating that we have
jurisdiction to grant relief in a case such as this only if the government failed to
prove the alien’s conviction by sufficient evidence). We therefore dismiss Bula
Lopez’s petition for review in part for lack of jurisdiction as to this claim.
Bula Lopez’s remaining two claims, however, present legal questions over
which we have jurisdiction even under INA § 242. INA § 242(a)(2)(D), 8 U.S.C.
§ 1252(a)(2)(D). We next address Bula Lopez’s argument concerning DHS’s
2
To the extent Bula Lopez argued at oral argument that his petition must be granted
because the IJ applied the wrong burden of proof in resolving this factual question, we note that
the BIA applied the correct, clear and convincing evidence standard, and it is the BIA’s decision
that we are reviewing. Seck, 663 F.3d at 1364.
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failure to file a cross-appeal before the BIA and then proceed to the merits of his
claim that the BIA erred in concluding Flunitrazepam is a controlled substance.
IV. FAILURE TO CROSS-APPEAL
The BIA found that Bula Lopez’s conviction was both a controlled
substance violation and a CIMT. Because the IJ found Bula Lopez removable only
on the CIMT ground, Bula Lopez argues the BIA could not reach the controlled
substance violation ground without a cross-appeal by DHS. DHS responds that the
BIA did not err in considering this alternative basis for Bula Lopez’s removability.
The BIA’s regulations do not contain any specific rules regarding the filing
of cross-appeals. See, e.g., 8 C.F.R. §§ 1003.38 (providing rules for appeals),
1003.3 (providing requirements for a notice of appeal). In the absence of such
rules or BIA precedent on the issue, we look to the general cross-appeal rule
applied in federal courts to determine whether the BIA erred by considering DHS’s
argument on appeal that Flunitrazepam is a controlled substance and that Bula
Lopez was removable for having committed a controlled substance violation.
The Supreme Court has explained that “[a]n appellee who does not take a
cross-appeal may urge in support of a decree any matter appearing before the
record, although his argument may involve an attack upon the reasoning of the
lower court.” See Jennings v. Stephens, 574 U.S. __, __, 135 S. Ct. 793, 798
(2015) (internal quotations omitted). In other words, the appellee may argue for
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affirmance on any ground supported by the record, even one the lower court did
not rely on. See id. However, “an appellee who does not cross-appeal may not
attack the decree with a view either to enlarging his own rights thereunder or of
lessening the rights of his adversary.” Id. (internal quotations omitted).
To determine whether the cross-appeal rule applies, we must distinguish
between the rights of a party and the reasons a court gives for recognizing those
rights. Because “[c]ourts reduce their opinions and verdicts to judgments precisely
to define the rights and liabilities of the parties,” it is the judgment of the court, not
its opinion, that matters. Id. at 799. In Jennings, for instance, the district court
granted habeas relief to the petitioner on two of his ineffective-assistance-of-
counsel theories, but denied relief as to a third theory and entered judgment
directing the state either to release him from custody or resentence him. Id. at 798.
The state appealed, attacking only the two ineffective-assistance theories on which
the district court had granted relief. Id. Without filing a cross-appeal, the
petitioner defended the district court’s judgment on all three ineffective-assistance
theories. Id. The Fifth Circuit determined it lacked jurisdiction to consider the
third ineffective-assistance theory, on which the district court had not relied in
granting relief, because Jennings did not file a cross-appeal. Id. The Supreme
Court granted certiorari and reversed. Id. at 798-802.
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In concluding that Jennings could raise his third ineffective-assistance theory
on appeal without filing a cross appeal, the Supreme Court explained:
Jennings’ rights under the judgment [granting habeas relief on the first
two theories] were what the judgment provided—release, resentencing,
or commutation within a fixed time, at the State’s option; the [third]
theory would give him the same. Similarly, the State’s rights under the
judgment were to retain Jennings in custody pending resentencing or to
commute his sentence; the [third] theory would allow no less.
Id. at 798-99.
The Court further explained that “[a] prevailing party seeks to enforce not a
district court’s reasoning, but the court’s judgment,” and that federal appellate
courts “do[] not review lower courts’ opinions, but their judgments.” Id. at 799(emphasis in original). Accordingly, “[a]ny potential claim that would have
entitled Jennings” to the same relief as that provided in the district court’s
judgment “could have been advanced to urge . . . support of the judgment,” as long
as that alternative ground was present in the record. Id. at 800 (internal quotations
omitted). And because Jennings’s third ineffective-assistance theory “sought the
same relief” as was awarded under his first two ineffective-assistance theories, he
was not required to file a cross-appeal in order to raise it. Id. at 801-02.
Here, DHS’s controlled substance argument on appeal to the BIA is akin to
the alternative argument raised in Jennings. Like the habeas petitioner in Jennings,
DHS here prevailed on one theory of removability (CIMT), but not on another
(controlled substance violation) and, on appeal, defended the IJ’s order of
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removability on both theories. See id. at 798. In arguing to the BIA that Bula
Lopez was also removable for having committed a controlled substance violation,
DHS “sought the same relief”—Bula Lopez’s removal—as was awarded in the IJ’s
removal order based on the CIMT charge. Id. at 801-02. Thus, DHS was not
required to file a cross-appeal to advance its controlled substance argument on
appeal to the BIA, and the BIA did not err in considering that argument.
V. CONTROLLED SUBSTANCE VIOLATION
The INA provides that an LPR (such as Bula Lopez) is considered an
“applicant for admission,” and therefore subject to removal, if he “has committed
an offense identified in section 1182(a)(2) of this title.” INA § 101(a)(13)(C)(v), 8
U.S.C. § 1101(a)(13)(C)(v). One of the offenses identified in § 1182(a)(2) is “a
violation of . . . any law or regulation of a State, the United States, or a foreign
country relating to a controlled substance (as defined in section 802 of Title 21).”
INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). Section 802, in turn,
defines the term “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,
which also instructs that the list of controlled substances shall be updated annually,
pursuant to the procedures set out in 21 U.S.C. § 811. See 21 U.S.C. § 812(a), (c);
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id. § 811(a)(1) (providing that “the Attorney General may by rule add to such a
schedule . . . any drug or other substance if he finds that such drug or other
substance has a potential for abuse”). Section 812 of the CSA further specifies that
the “[r]evised schedules are published in the Code of Federal Regulations, Part
1308 of Title 21, Food and Drugs.” Id. § 812(c) n.1; see also 21 C.F.R. § 1308.01(“Schedules of controlled substances as established by section 202 of the [CSA]
(21 U.S.C. 812) . . . as they are changed, updated, and republished from time to
time, are set forth in this part.”). 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.
Bula Lopez contends that because Flunitrazepam is not listed in the initial
schedules of controlled substances contained in § 812 of the CSA, it is not a
controlled substance for purposes of the INA. See 21 U.S.C. § 812(c).
Flunitrazepam is, however, listed as a Schedule IV controlled substance in the
updated schedules found in the Code of Federal Regulations. 21 C.F.R.
§ 1308.14(c)(23). Flunitrazepam therefore has been incorporated into § 802 of the
CSA and is a controlled substance within the meaning of INA
§ 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II).3 Therefore, the BIA did not
3
Indeed, Flunitrazepam has been on Schedule IV since late 1984, well before Bula-
Lopez’s conviction. See Drug Enforcement Administration, Schedules of Controlled
Substances, 49 Fed. Reg. 39307-01 (Oct. 5, 1984).
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err in concluding that Flunitrazepam is a controlled substance and that Bula
Lopez’s conviction for possessing Flunitrazepam with intent to deliver is a
“violation of . . . [a] law or regulation of a State . . . relating to a controlled
substance (as defined in section 802 of Title 21).” 4 INA § 212(a)(2)(A)(i)(II), 8
U.S.C. § 1182(a)(2)(A)(i)(II). As such, Bula Lopez was properly considered an
“applicant for admission” subject to removal based on his prior conviction. See
INA § 101(a)(13)(C)(v), 8 U.S.C. § 1101(a)(13)(C)(v). Because the BIA correctly
determined that Bula Lopez was removable for having been convicted of a
controlled substance violation, we may deny his petition for review on that basis
alone and need not address whether his prior conviction is also a CIMT.
One further issue bears mention. Bula Lopez also argues, based on his
contention that Flunitrazepam is not a controlled substance, that his Florida
conviction is not an aggravated felony and does not render him ineligible to pursue
a waiver of inadmissibility under INA § 212(h). He therefore requests that we
remand this case to allow him to pursue a § 212(h) waiver. DHS responds that
Flunitrazepam is a controlled substance, and the BIA correctly denied Bula
4
Bula Lopez argues that the BIA cannot rely on Flunitrazepam’s listing in the C.F.R.
because that list is compiled by the Drug Enforcement Agency (“DEA”), not Congress, and
Congress is the only body with the authority to make and amend laws. Unfortunately for Bula
Lopez, that is an argument he needs to take up with the Supreme Court. See Touby v. United
States, 500 U.S. 160, 169, 111 S. Ct. 1752, 1758 (1991) (holding that delegation from Congress
to the Attorney General, and from the Attorney General to the DEA, neither violated the
Constitution nor the Controlled Substances Act).
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Lopez’s request for a remand to pursue a § 212(h) waiver because he is ineligible
for such relief.
INA § 212(h) allows the Attorney General to waive removal for certain
aliens. INA § 212(h), 8 U.S.C. § 1182(h). Relief under that section is not
available, however, for someone convicted of an aggravated felony. Id. An
aggravated felony includes (but is not limited to) a drug-trafficking crime, as
defined in 18 U.S.C. § 924(c). INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).
And § 924(c) defines a “drug trafficking crime” as “any felony punishable under
the Controlled Substances Act.” 18 U.S.C. § 924(c). A “felony” under federal law
is an offense for which one could be imprisoned for over a year. 18 U.S.C. § 3559.
A state drug offense is an aggravated felony if its elements correspond with a
federal drug offense punishable by over a year in prison. See Lopez v. Gonzales,
549 U.S. 47, 59, 127 S. Ct. 625, 633 (2006).
Possession with intent to distribute Flunitrazepam is a federal crime under
the CSA punishable by over a year’s imprisonment.5 21 U.S.C. § 841(a)(1). Bula
Lopez was convicted of possessing with intent to deliver Flunitrazepam under Fla.
5
Pursuant to federal law, to “distribute” is to “deliver (other than by administering or
dispensing) a controlled substance,” and administering or dispensing a controlled substance both
involve lawful medical or scientific purposes. 21 U.S.C. § 802(11). Federal law thus prohibits
any controlled-substance delivery outside of lawful medical or scientific purposes. Id.§ 841(a)(1).
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Stat. § 893.13(1)(a).6 So Bula Lopez violated the state equivalent of a federal law
prohibiting distribution of a Schedule IV substance, a crime for which he could
have been imprisoned for over a year. 7 See 21 U.S.C. § 841(a). Bula Lopez
therefore committed a felony punishable under the CSA, meaning his crime of
conviction was a “drug trafficking crime” and, thus, an aggravated felony.
Because Bula Lopez’s crime was an aggravated felony, the BIA did not err
in denying Bula Lopez’s motion for a remand to pursue a § 212(h) waiver, and we
must deny his present request for a remand to seek such relief.
VI. CONCLUSION
For the foregoing reasons, we dismiss in part and deny in part Bula Lopez’s
petition for review.
PETITION DISMISSED in part and DENIED in part.
6
Section 893.13 clarifies that delivery of a controlled substance for legitimate medical or
scientific purposes is not illegal. Fla. Stat. § 893.13(9). Bula Lopez’s conviction therefore
necessarily means Bula Lopez was convicted for possessing with intent to deliver a controlled
substance outside of legitimate medical or scientific purposes. Fla. Stat. § 893.13(1)(a), (9).
7
We note that Bula Lopez’s only challenge to the BIA’s aggravated felony determination
is his contention that Flunitrazepam is not a controlled substance. He does not raise an argument
based on Donawa v. U.S. Att’y Gen., 735 F.3d 1275 (11th Cir. 2013), apparently because his
1997 Florida conviction occurred before the Florida legislature amended the mens rea
requirement for § 893.13 offenses in 2002. See Fla. Stat. § 893.101.
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