Elvis Leonel Morfa Diaz v. Acting Secretary, Department of Homeland Security

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10763
____________________
ELVIS LEONEL MORFA DIAZ,
Plaintiff-Appellant,
versus
ALEJANDRO MAYORKAS, SECRETARY, DEPARTMENT OF
HOMELAND SECURITY,
UR JADOU, DIRECTOR, U.S. CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cv-01025-RBD-EJK
____________________
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2 Opinion of the Court 21-10763
Before WILSON, BRANCH, and TJOFLAT, Circuit Judges.
BRANCH, Circuit Judge:
Elvis Morfa Diaz appeals the district court’s dismissal with
prejudice of his complaint challenging the United States
Citizenship and Immigration Service’s (“USCIS”) denial of his
naturalization application pursuant to 8 U.S.C. § 1421(c). The
government denied his application because of Morfa Diaz’s 1996
drug crime conviction in New York, which it found constituted an
aggravated felony under the Immigration and Nationality Act
(“INA”), 8 U.S.C. §§ 1101(f)(8), 1427(a), permanently rendering
him ineligible for naturalization. Morfa Diaz claims that the district
court’s denial of his challenge to his administrative appeal was
improper because his 1996 conviction did not categorically qualify
as an aggravated felony. Rather, according to Morfa Diaz, New
York’s statute also criminalized human chorionic gonadotrophin
(“hCG”), making it broader than the federal Controlled Substances
Act, 21 U.S.C. § 801 et seq. In fact, however, New York did not add
hCG to its controlled substances schedule until 2017, which Morfa
Diaz conceded at oral argument. Hence, after careful
consideration and with the benefit of oral argument, we affirm.
I. BACKGROUND
In 1996, two years into his lawful residency in the United
States, Elvis Morfa Diaz, a citizen of the Dominican Republic, was
convicted of the attempted sale of a controlled substance—
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cocaine—in the third degree under New York Penal Law (“NYPL”)
§ 220.39 for which he was sentenced to five years’ probation.
Ostensibly, Morfa Diaz stayed out of trouble from that point
on, and, in November 2018, he applied for naturalization with the
USCIS. However, after concluding that Morfa Diaz’s crime of
conviction qualified as an aggravated felony, USCIS denied his
application pursuant to 8 U.S.C. § 1427(a)(3) because he failed to
establish good moral character, and his conviction precluded him
from ever satisfying the moral character requirement for
naturalization.1 See 8 U.S.C. § 1101(a)(43) (defining aggravated
felonies to include “illicit trafficking in a controlled substance (as
defined in [21 U.S.C. § 802]), including a drug trafficking crime (as
defined in [18 U.S.C. § 924(c)])”).
Morfa Diaz subsequently appealed USCIS’s determination.
Citing to the Second Circuit’s decision in Pascual v. Holder, 723
F.3d 156 (2d Cir. 2013), which held that offers or attempts to sell
cocaine in violation of NYPL § 220.39 qualify as aggravated
felonies, USCIS denied his administrative appeal.
Undaunted, Morfa Diaz filed suit against the Secretary of the
Department of Homeland Security and the Director of USCIS
1
8 U.S.C. § 1427(a) provides that “[n]o person . . . shall be naturalized unless
such applicant . . . has been and still is a person of good moral character.”
Meanwhile, 8 U.S.C. § 1101(f)(8) establishes that “[n]o person shall be
regarded as, or found to be, a person of good moral character who, during the
period for which good moral character is required to be established, is, or was
. . . one who at any time has been convicted of an aggravated felony . . . .”
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under 8 U.S.C. § 1421(c) in the United States District Court for the
Middle District of Florida, seeking to appeal the denial of his
naturalization application.2 In response, USCIS filed a motion to
dismiss Morfa Diaz’s complaint, arguing that his 1996 aggravated
felony conviction precluded him from establishing the requisite
good moral character, forever shutting the door on his
naturalization. Morfa Diaz responded that although “the actual
comparison should relate to the versions of the State and federal
provisions in 1996, the year in which [he] was convicted,” a cursory
review of the New York drug schedules, NYPL § 3306, and the
Controlled Substances Act, 8 U.S.C. § 812, in effect in 2020 revealed
that New York criminalized the sale of numerous substances not
covered under federal law, and was therefore not a categorical
match. He also caveated that he had not reviewed the Federal
Register which, he recognized, could contain other substances
prohibited by federal law. 3 At any rate, according to Morfa Diaz,
the statute’s current potential—but, by his own admission,
unconfirmed—overbreadth meant that his prior conviction could
not qualify as an aggravated felony or necessarily preclude him
2
Section 1421(c) permits a naturalization applicant to seek judicial review of
the administrative decision. 8 U.S.C. § 1421(c).
3
Although the district court did not pursue it, we note that Morfa Diaz’s
counsel’s inexcusable efforts border on sanctionable conduct. By failing to
conduct the proper research—instead offering to “provide a further
comparison of the schedules” only “if required”—counsel not only
consciously and overtly presented a frivolous argument to the district court,
but also muddied the record for a spurious challenge on appeal, too.
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from showing good moral character. In its reply, USCIS noted that
Morfa Diaz cited exclusively to the 2020 version of § 220.39, not the
version in effect at the time of his 1996 conviction. Likewise,
USCIS also pointed to the later federal regulation adding hCG to
the Controlled Substances Act’s list of prohibited substances, thus
demonstrating the statutes’ current congruence.
Agreeing with USCIS, the district court granted its motion
to dismiss Morfa Diaz’s complaint with prejudice. Finding that the
1996 version of § 220.39 categorically matched the federal CSA, and
that the corresponding federal offense to Morfa Diaz’s state crime
of conviction was also a drug trafficking, and therefore aggravated,
felony, the district court concluded that Morfa Diaz was convicted
of an aggravated felony within the INA’s plain meaning, and that
he was therefore precluded from establishing the requisite moral
character for naturalization.
Morfa Diaz timely appealed.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of a motion to
dismiss under Rule 12(b)(6), accepting the complaint’s well pleaded
factual allegations as true and construing them in the light most
favorable to the plaintiff. See Baker Cnty. Med. Servs. v. U.S. Att’y
Gen., 763 F.3d 1274, 1275 (11th Cir. 2014). We also review de novo
whether a crime of conviction is an aggravated felony under the
INA. See Cintron v. U.S. Att’y Gen., 882 F.3d 1380, 1383 (11th Cir.
2018).
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III. ANALYSIS
On appeal, Morfa Diaz raises two issues. First, he argues
that his conviction under § 220.39 is not an aggravated felony
under the INA because, in 1996, New York Penal Law § 220.39
prohibited the sale of hCG, a substance not regulated by the
relevant federal analogue, the CSA. Second, Morfa Diaz maintains
that § 220.39 is indivisible because it lists only one offense and that
this Court must apply the categorical approach to determine
whether a violation constitutes an “aggravated felony” within the
INA’s plain meaning. And, according to Morfa-Diaz, that means
that the least culpable conduct under § 220.39—the sale of
controlled substances—could refer to the sale of hCG, therefore
placing it outside of the INA”s “aggravated felony” definition. He
is wrong on both counts.
But before we explain why Morfa Diaz’s challenges fail, we
clarify an important fact: Morfa Diaz’s arguments notwithstanding,
at the time of his 1996 conviction, § 220.39 did not prohibit the sale
of hCG. See NYPL § 220.39 (McKinney 1996). Because “[i]n
assessing whether a[n alien’s] conviction qualifies as an aggravated
felony, we compare his offense of conviction to the CSA schedules
in effect when he was convicted,” we conduct our inquiry using the
laws in effect in 1996, a comparison that Morfa Diaz’s counsel
deemed unnecessarily burdensome in proceedings below. Gordon
v. U.S. Att’y Gen., 962 F.3d 1344, 1351 n.4 (11th Cir. 2020).
A. Divisibility
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The INA requires good moral character for naturalization,
and a state conviction for an aggravated felony permanently
disqualifies an applicant from a finding of good moral character.
See 8 U.S.C. §§ 1101(f)(8), 1427(a)(3). In relevant part, federal law
treats “illicit trafficking in a controlled substance (as defined in [21
U.S.C. § 802], including a drug trafficking crime (as defined in [18
U.S.C. § 921])” as an aggravated felony. 8 U.S.C. § 1101(a)(43)(B).
Thus, to determine whether a state conviction qualifies as an
aggravated felony under federal law, we “apply a categorical or
modified categorical approach, depending on the statutory
scheme.” Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1280 (11th
Cir. 2013). When a statute is indivisible, or sets forth only a single
offense, we apply the categorical approach, asking “whether the
state statute defining the crime of conviction categorically fits
within the generic federal definition of a corresponding aggravated
felony.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (quotations
omitted). “[A] State offense is a categorical match . . . only if a
conviction of the state offense necessarily involved facts equating
to the generic federal offense.” Id. (quotations omitted and
alterations adopted). “Under the categorical approach, [we] must
confine [our] consideration only to the fact of conviction and the
statutory definition of the offense.” Donawa, 735 F.3d at 1280.
On the other hand, if a statute is “divisible,” or “lists
multiple, alternative elements, and so effectively creates several
different crimes,” we instead “employ the ‘modified categorical
approach . . . to determine which alternative formed the basis of
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the [alien’s] prior conviction.’” Cintron, 882 F.3d at 1384 (quoting
Descamps v. United States, 570 U.S. 254, 257 (2013)). Consulting
“a limited class of documents, including the indictment, jury
instructions, or plea agreement and colloquy, to determine which
of the multiple crimes listed in the alternatively phrased statute the
defendant was convicted of committing[,]” we then “compare that
crime . . . with the relevant generic offense.” United States v.
Oliver, 962 F.3d 1311, 1317 (11th Cir. 2020); Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016).
When the legislature requires the government to charge and
subsequently prove—or, alternatively, for a defendant to admit
to—specific facts in order to sustain a conviction for a particular
offense, those required facts are elements of the offense. See
Mathis, 579 U.S. at 518. “Sometimes, though, what appear in a
statute to be alternative elements . . . that either must be admitted
to by a defendant or found by a fact-finder to sustain a conviction
. . . are instead alternative ‘means’ of committing a single offense.”
Cintron, 882 F.3d at 1384 (quoting Mathis, 136 S. Ct. at 2248).
“Unlike elements, ‘means’ . . . ‘need neither be found by a jury nor
admitted by a defendant[,]’” and if “a statute lists alternative means,
any one of which would not constitute an aggravated felony, then
the statute is indivisible and categorically cannot constitute a
generic offense.” Id. To differentiate between elements and
means, we look to state law, starting with “the statute on its face”
and state decisional law. Mathis, 136 S. Ct. at 2256. And, of course,
“if the text of the statute and state decisional law are unclear,
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‘federal judges have another place to look: the record of a prior
conviction itself.’” Oliver, 962 F.3d at 1318 (citing Mathis, 136 S.
Ct. at 2256).
This “threshold inquiry [into divisibility] . . . is easy in . . .
many” cases, especially when the statutory text facially resolves the
question, or a state supreme court has definitively answered it.
Mathis, 479 U.S. at 517–19. At bottom, an element is a statutory
component that the legislature requires to be charged and proven
at trial to sustain a conviction for a particular offense. Id. at 518.
Likewise, “[i]f statutory alternatives carry different punishments,
then under Apprendi [v. New Jersey, 530 U.S. 466, 490 (2000)] they
must be elements.” Id. at 518. However, “if a statutory list is
drafted to offer illustrative examples, then it includes only a crime’s
means of commission.” Id. (quotations omitted). As we have
explained, “the phrase ‘illustrative examples’ . . . describe[s] a
statute that includes a non-exhaustive list of means by which a
crime can be committed.” Oliver, 962 F.3d at 1317 (citing United
States v. Howard, 742 F.3d 1334, 1348 (11th Cir. 2014)).
Our divisibility inquiry starts with the text. In 1996, New
York Penal Law § 220.39 provided that:
A person is guilty of criminal sale of a controlled
substance in the third degree when he knowingly and
unlawfully sells:
1. a narcotic drug; or
2. a stimulant, hallucinogen, hallucinogenic
substance, or lysergic acid diethylamide and has
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previously been convicted of an offense defined
in article two hundred twenty or the attempt or
conspiracy to commit any such offense; or
3. a stimulant and the stimulant weighs one gram
or more; or
4. lysergic acid diethylamide and the lysergic acid
diethylamide weighs one milligram or more; or
5. a hallucinogen and the hallucinogen weighs
twenty-five milligrams or more; or
6. a hallucinogenic substance and the
hallucinogenic substance weighs one gram or
more; or
7. one or more preparations, compounds, mixtures
or substances containing methamphetamine, its
salts, isomers or salts of isomers and the
preparations, compounds, mixtures or substances
are of an aggregate weight of one-eighth ounce
or more; or
8. phencyclidine and the phencyclidine weighs two
hundred fifty milligrams or more; or
9. a narcotic preparation to a person less than
twenty-one years old.
Criminal sale of a controlled substance in the third
degree is a class B felony.
N.Y.P.L. § 220.39 (McKinney 1996). Or, to sustain a conviction
under § 220.39, a jury must find beyond a reasonable doubt that the
defendant violated at least one of § 220.39’s prongs, each requiring
the knowing and unlawful sale of a certain amount of one or more
specific prohibited substances. See id.; Mathis, 136 S. Ct. at 2256.
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Given that each of § 220.39’s prongs lists specific combinations of
controlled substances and weights, any one of which must be
charged and proven to obtain a conviction, these nine statutory
alternatives list separate elements, rather than separate means of
committing a single offense. 4 5 See Cintron, 882 F.3d at 1384.
4
Consequently, we agree with Morfa Diaz’s claim that the district court erred
by relying on the Second Circuit’s decision in Pascual v. Holder, albeit for
different reasons which offer no support for his position. In Pascual, the
Second Circuit applied the categorical approach to determine whether NYPL
§ 220.39 violations qualify as aggravated felonies, implicitly holding that the
statute is indivisible, in the process. See 707 F.3d at 405. Yet, the panel did not
appear to consider the statute’s divisibility. Regardless, as we have explained,
§ 220.39 lists separate elements, rather than means, thereby rendering the
statute divisible. As a result, we find Pascual unpersuasive and inapposite to
Morfa Diaz’s appeal.
5
Citing to Mathis, Descamps, Moncrieffe, and Donawa without analysis,
Morfa Diaz contends that § 220.39 lists only a single offense and nine potential
means of committing it. However, in proceedings below, Morfa Diaz cited
the reasoning of a Second Circuit decision, Harbin v. Sessions, which the
USCIS found inapposite before looking to Pascual v. Holder. Ironically,
Harbin’s reasoning supports our conclusion regarding NYPL § 220.39’s
divisibility.
In Harbin, the Second Circuit found that the text of another of New
York’s drug trafficking laws, NYPL § 220.31, listed alternative means, rather
than individual elements, and was therefore indivisible. 860 F.3d 58, 65–69 (2d
Cir. 2011). We agree that § 220.31 is indivisible. And, in fact, comparing
§§ 220.39 and 220.31 reveals crucial textual differences between the two
statutes, emphasizing § 220.39’s divisibility. Section 220.31 criminalized the
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knowing and unlawful sale of “controlled substance[s],” defined by reference
to New York’s drug schedules. Section 220.31 provides that:
A person is guilty of criminal sale of a controlled substance in
the fifth degree when he knowingly and unlawfully sells a
controlled substance. Criminal sale of a controlled substance
in the fifth degree is a class D felony.
NYPL § 220.31. At the time, New York law defined a “controlled substance”
as:
any substance listed in schedule I, II, III, IV or V of section
thirty-three hundred six of the public health law other than
marihuana, but including concentrated cannabis as defined in
paragraph (a) of subdivision four of section thirty-three
hundred two of such law.
Id. § 220.35.
Hence, as the Second Circuit explained in Harbin, the “face of
[§ 220.31] [] gives only one set of four elements: the defendant must (1)
knowingly and (2) unlawfully (3) sell (4) a controlled substance.” Harbin, 860
F.3d at 65. As a result, the court found that “the text does not suggest that a
jury must agree on the particular substance sold. If some jurors believed that
a defendant had sold cocaine, and others believed that he had sold heroin, they
could still agree that he had sold a ‘controlled substance,’ and issue a guilty
verdict” pursuant to § 220.31. Id. In other words, NYPL § 220.31 provides “a
non-exhaustive list of means by which” a defendant may commit its
substantive offense, rather than alternative elements that the government
must prove beyond a reasonable doubt at trial, and is therefore indivisible.
Oliver, 962 F.3d at 1317 (citing Howard, 742 F.3d at 1348).
In contrast, the text of § 220.39 requires proof of the substance and
amount sold to sustain a conviction under any of its nine prongs, and,
therefore, it lists separate elements of nine unique controlled substance
offenses. See NYPL § 220.39. Accordingly, the text of § 220.39 identifies
“which things must be charged” to sustain a conviction rather than a mere list
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B. The Modified Categorical Approach
Because we hold that § 220.39 is divisible, to conclude
whether Morfa Diaz was convicted of an aggravated felony, we
apply the modified categorical approach, “consider[ing] a limited
class of documents, including the indictment, jury instructions, or
plea agreement and colloquy, to determine” the element of
§ 220.39 under which Morfa-Diaz was convicted. Oliver, 962 F.3d
at 1317. To that end, Morfa Diaz’s indictment clarifies that he was
charged with selling a “narcotic drug,” specifically cocaine, to an
undercover police officer. Based on the government’s proffer of a
March 2017 judicial order referring to Diaz’s guilty plea to the
“attempted criminal sale of a controlled substance in the third
degree (Penal Law §§ 110/220.39[1]),” we conclude that Morfa
Diaz was charged and convicted under § 220.39(1). Accord Shepard
v. United States, 544 U.S. 13, 26 (2005) (authorizing courts to look
at a “comparable judicial record” to determine the crime of
conviction).
Next, we determine whether Morfa Diaz’s 1996 conviction
under § 220.39(1) categorically qualifies as an “aggravated felony”
under the INA. Oliver, 962 F.3d at 1317. In relevant part, the INA
defines an “aggravated felony” to include “a drug trafficking crime
(as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B).
of means, and we therefore hold that the statute lists elements and is divisible.
Mathis, 579 U.S. at 518.
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Section 924(c)(2), in turn, defines a “drug trafficking crime” to
include “any felony punishable under the [CSA].” Thus, Morfa
Diaz’s conviction qualifies if § 220.39(1) “necessarily proscribe[s]
conduct that is an offense under the CSA,” and the CSA
“necessarily prescribe[s] felony punishment for that conduct.”
Moncrieffe, 569 U.S. at 192.
Again, § 220.39(1) prohibits the knowing and unlawful sale
of any “narcotic drug,” and § 220.00(7) defines a “narcotic drug” as
“any controlled substance listed in schedule I(b), I(c), II(b) or II(c)
other than methadone,” which, in turn, include cocaine. See NYPL
§ 3306. Likewise, under the CSA, distribution of cocaine carries a
sentence of up to 20 years in prison, rendering it a felony drug
trafficking offense, and therefore an aggravated felony. 21 U.S.C.
§ 841(a), (b)(1)(c). Indeed, even the least culpable conduct under
§ 220.39(1), the attempted sale of a controlled substance, violates 8
U.S.C. § 841(a)(1)’s prohibition on the distribution of a controlled
substance. See NYPL § 220.39(1); 8 U.S.C. § 841(a)(1). Hence, even
if Morfa Diaz only offered to sell the officer cocaine, his state
offense would qualify as a drug trafficking felony at the federal
level, rendering it an aggravated felony under the INA. See 21
U.S.C. §§ 841(b)
Consequently, because we conclude that Morfa Diaz’s 1996
conviction under § 220.39(1) qualifies as an aggravated felony, he
cannot satisfy the good moral character requirement necessary for
naturalization, either. See 8 U.S.C. §§ 1101(f)(8), 1427(a). Thus, the
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district court did not err in dismissing his complaint with
prejudice. 6
6
Although we hold that § 220.39 is divisible, Morfa Diaz would still not prevail
if we held that New York’s statute is indivisible and applied the categorical
approach. “Under the categorical approach, [we] must confine [our]
consideration only to the fact of conviction and the statutory definition of the
offense.” Donawa, 735 F.3d at 1280. Hence, For a § 220.39 offense to
constitute an aggravated felony, it must “necessarily involve[] facts equating
to the generic federal offense” under the Controlled Substances Act.
Moncrieffe, 569 U.S. at 192. We find that it does. In 1996, § 220.39 prohibited
the knowing and unlawful sale of a “narcotic drug,” “narcotic preparation,
“stimulant,” “hallucinogen” “hallucinogenic substance,” “lysergic acid
diethylamide,” “phencyclidine,” or “methamphetamine.” NYPL § 220.39
(McKinney 1996). At the time, New York Schedules I(d)(12), I(e)(3), and
II(d)(2) defined lysergic acid diethylamide, phencyclidine, and
methamphetamine, respectively. See N.Y. Pub. Health Law § 3306(McKinney 1996). Likewise, with the exception of methadone, substances in
New York Schedules I(b), I(c), II(b), and II(c) constituted narcotic drugs, and
substances in Schedules III(d) and III(e) contained narcotic preparations.
NYPL § 220.00(7)-(8). Schedules I(d)(5), (18), (19), (20), (21), and (22) listed
hallucinogens, and all substances in Schedule I(d) except for concentrated
cannabis, lysergic acid diethylamide and other scheduled hallucinogens were
classified as hallucinogenic substances. Id. § 220.00(9)-(10). Finally, substances
found in Schedules I(f) and II(d) were defined as stimulants. Id. § 220.00(11).
At the same time, the federal Controlled Substances Act proscribed
“knowingly or intentionally . . . distribut[ing], or dispens[ing] . . . a controlled
substance,” as well as “attempting or conspiring” to commit the offense. 21
U.S.C. §§ 841(a)(1), 846. The Controlled Substances Act defined a “controlled
substance” as “a drug or other substance, or immediate precursor, included in
schedule I, II, III, IV, or V of part B” of chapter. § 802(6). Those federal
schedules encompass all of the substances prohibited under the 1996 version
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IV. CONCLUSION
Because Morfa Diaz’s 1996 conviction under § 220.39(1)
qualifies as an aggravated felony within the plain meaning of the
INA, we affirm the district court’s grant of the government’s
motion to dismiss his complaint with prejudice.
AFFIRMED.
of NYPL § 220.39. Compare N.Y. Pub. Health L. § 3306 with 21 C.F.R.
§§ 1308.11, 1308.12, 1308.13 (1996). With the exception of phencyclidine—
listed in New York Schedule I and federal Schedule II—every substance
prohibited by the New York schedule corresponded to the identically
enumerated federal schedule. Consequently, an offense under § 220.39
constituted an offense punishable under the Controlled Substances Act, as
well.
Moreover, the Controlled Substances Act prescribed felony
punishment for the knowing and unlawful sale of any of those proscribed
substances. 21 U.S.C. §§ 841(b)(3)-(4) (limiting misdemeanor punishment to
cases involving Schedule V substances or involving the “distributi[on of] a
small amount of marihuana for no renumeration.”). Therefore, Morfa Diaz’s
state crime of conviction is categorically an aggravated felony within the
meaning of the INA, permanently precluding him from establishing eligibility
for naturalization.
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21-10763 WILSON, J., Concurring 1
WILSON, Circuit Judge, concurring:
I concur in the result.