Bourtzakis v. U.S. Attorney Gen.

• Decision Date: 09 October 2019
• Docket Number: No. 18-12137,18-12137
• Citation: 940 F.3d 616
• Parties: Dimitrios I. BOURTZAKIS, Plaintiff-Appellant, v. UNITED STATES ATTORNEY GENERAL, Secretary, Department of Homeland Security, Jacksonville Field Office Director, United States Citizenship and Immigration Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

940 F.3d 616

Dimitrios I. BOURTZAKIS, Plaintiff-Appellant,

v.UNITED STATES ATTORNEY GENERAL, Secretary, Department of Homeland Security, Jacksonville Field Office Director, United States Citizenship and Immigration Services, Defendants-Appellees.

No. 18-12137

United States Court of Appeals, Eleventh Circuit.

October 9, 2019

David F. Vedder, David F. Vedder, PA, DAYTONA BEACH, FL, for Plaintiff-Appellant.

Peter J. Sholl, Michelle Thresher Taylor, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, TAMPA, FL, for U.S. ATTORNEY GENERAL, JACKSONVILLE FIELD OFFICE DIRECTOR, U.S. Citizenship and Immigration Service Defendants-Appellees.

Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO,^* District Judge.

WILLIAM PRYOR, Circuit Judge:

This appeal presents the question whether a conviction for delivery of cocaine under Washington law, Wash. Rev. Code § 69.50.401(a)(1)(i) (1989), categorically qualifies as an "aggravated felony" under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43). The Department of Homeland Security denied Dimitrios Bourtzakis’s application for naturalization on the ground that his prior conviction in Washington for delivery of cocaine is an aggravated felony under section 1101(a)(43), which bars him from establishing the "good moral character" necessary for naturalization. Id. §§ 1101(f)(8), 1427(a). Bourtzakis filed a complaint challenging that denial, id. § 1421(c), but the district court ruled that his prior conviction is an aggravated felony and dismissed his complaint. Because we agree with the district court that Bourtzakis’s prior conviction categorically qualifies as an aggravated felony, we affirm.

I. BACKGROUND

Bourtzakis, a citizen of Greece, has lawfully resided in the United States since 1974. He applied for naturalization in 2016, but the Department denied his application on the ground that his prior conviction of an "aggravated felony," 8 U.S.C. § 1101(a)(43), bars him from establishing the necessary "good moral character," id. §§ 1101(f)(8), 1427(a). In 1992, a Washington court convicted Bourtzakis of delivering cocaine in violation of the Uniform Controlled Substances Act, Wash. Rev. Code § 69.50.401(a)(1)(i) (1989). Bourtzakis challenged the denial of his application in a hearing before the Citizenship and Immigration Services, which reaffirmed that decision.

Bourtzakis then filed a complaint in the district court to review the denial of his application. See 8 U.S.C. § 1421(c). His complaint alleged that his conviction for delivery of cocaine was not an aggravated felony and did not bar him from establishing good moral character.

The government moved to dismiss Bourtzakis’s complaint, Fed. R. Civ. P. 12(b)(6), on the ground that his prior conviction categorically qualified as a "drug trafficking crime," which is an aggravated felony under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B). Section 1101(a)(43)(B) defines "drug trafficking crime" to include any felony punishable under the federal Controlled Substances Act, id. (incorporating 18 U.S.C. § 924(c)(2) ), and the government argued that Bourtzakis’s conviction for delivery of cocaine under Washington law also would have been punishable as a felony under the federal Act. Bourtzakis responded that the Washington statute proscribes the act of "administering" a controlled substance, while the federal Act does not. He argued that because the Washington statute proscribes more conduct than the federal Act, a conviction under the state statute does not categorically qualify as an aggravated felony.

The district court dismissed Bourtzakis’s complaint. It ruled that Bourtzakis’s prior conviction for delivery of cocaine categorically qualifies as an aggravated felony, which bars him from establishing good moral character.

II. STANDARD OF REVIEW

We review de novo the dismissal of a complaint. Culverhouse v. Paulson & Co. , 813 F.3d 991, 993 (11th Cir. 2016).

III. DISCUSSION

The Immigration and Nationality Act requires an applicant for naturalization to establish that he "is a person of good moral character," 8 U.S.C. § 1427(a), and an applicant cannot satisfy that requirement if, during the relevant time period, he had a prior conviction for an "aggravated felony." Id. § 1101(f)(8). Among the several offenses included in the definition of "aggravated felony" is "illicit trafficking in a controlled substance," which includes "a drug trafficking crime (as defined in section 924(c) of Title 18 )." Id. § 1101(a)(43)(B). We must determine whether Bourtzakis’s prior conviction qualifies as "a drug trafficking crime (as defined in section 924(c) of Title 18 )" because the government does not argue that his conviction otherwise qualifies as "illicit trafficking in a controlled substance." Id.

Section 924(c) defines "drug trafficking crime" to include "any felony punishable under the Controlled Substances Act ( 21 U.S.C. 801 et seq. )." 18 U.S.C. § 924(c)(2). Under federal law, a "felony" is an offense for which the maximum allowable term of imprisonment is more than one year. See id. § 3559(a)(1)–(5). The result "is that a noncitizen’s conviction of an offense that the Controlled Substances Act ... makes punishable by more than one year’s imprisonment will be counted as an ‘aggravated felony’ " for purposes of determining whether he is a person of good moral character. Moncrieffe v. Holder , 569 U.S. 184, 188, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ; see 8 U.S.C. § 1101(f)(8). "A conviction under either state or federal law may qualify, but a state offense constitutes a felony punishable under the [Controlled Substances Act] only if it proscribes conduct punishable as a felony under that federal law." Moncrieffe , 569 U.S. at 188, 133 S.Ct. 1678 (citation and internal quotation marks omitted).

To determine whether a state offense is a felony punishable under the federal Act, we apply the categorical approach. Id. at 192, 133 S.Ct. 1678. Under the categorical approach, we examine whether the state statute " ‘necessarily’ proscribe[s] conduct that is an offense under the [Controlled Substances Act]" and whether the federal Act " ‘necessarily’ prescribe[s] felony punishment for that conduct." Id. If the answer to both questions is affirmative, then the state statute qualifies as an "aggravated felony" under section 1101(a)(43)(B), id. , and a prior conviction under that statute bars an applicant from establishing "good moral character," 8 U.S.C. § 1101(f)(8), for naturalization.

The categorical approach "is not an invitation to apply ‘legal imagination’ to the state offense." Moncrieffe , 569 U.S. at 191, 133 S.Ct. 1678 (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ). Instead, to conclude that a state statute proscribes conduct not punishable under the federal Act "requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside" the reach of the federal Act. Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815 ; see also Moncrieffe , 569 U.S. at 191, 133 S.Ct. 1678. To establish that realistic probability, an applicant for naturalization "must at least point to his own case or other cases in which the state courts in fact did apply the statute in the [broad] manner for which he argues." Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815. The only exception to this rule is when "the statutory language itself, rather than ‘the application of legal imagination’ to that language, creates the ‘realistic probability’ that a state would apply the statute to conduct beyond" that proscribed by the federal Act. Ramos v. U.S. Att’y Gen. , 709 F.3d 1066, 1072 (11th Cir. 2013) (quoting Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815 ).

Bourtzakis offers two arguments why the Washington statute is broader than the federal Act and does not categorically qualify as an "aggravated felony," 8 U.S.C. § 1101(a)(43). First, he argues that accomplice liability under the Washington statute is broader than accomplice liability under the federal Act. Second, he argues that the Washington statute proscribes "administering" a controlled substance and the federal Act does not.

The government responds that Bourtzakis forfeited the first of those arguments, and Bourtzakis replies that, because he argued in the district court that his prior conviction was not an aggravated felony, he may now make any argument in support of that position on appeal. We agree with Bourtzakis.

"Parties can most assuredly waive or forfeit positions and issues on appeal, but not individual arguments." Hi-Tech Pharm., Inc. v. HBS Int’l Corp. , 910 F.3d 1186, 1194 (11th Cir. 2018) (alterations adopted) (quoting Sec’y, U.S. Dep’t of Labor v. Preston , 873 F.3d 877, 883 n.5 (11th Cir. 2017) ). "Indeed, in Preston , we rejected the theory that a plaintiff ‘waived various arguments by failing to make them in response to the defendants’ motion to dismiss in the district court,’ the very theory [the government] raises in this appeal." Id. (alterations adopted) (quoting Preston , 873 F.3d at 883 n.5 ). This appeal presents one issue—whether Bourtzakis’s Washington drug conviction qualifies as an aggravated felony—and Bourtzakis squarely presented that issue to the district court. He can now "make any argument in support of" the position that his conviction is not an aggravated felony; he is "not limited to the precise arguments [he] made below." Yee v. City of Escondido , 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992).

Although Bourtzakis’s arguments are not forfeited, they fail on the merits. We reject each argument in turn.

A. Accomplice Liability Under the Washington Statute Is No Broader than Under the Federal Act.

The Washington statute makes it "unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance." Wash. Rev. Code § 69.50.401(a) (1989). This language closely...