Cucalon v. Barr

• Citation: 958 F.3d 245
• Decision Date: 07 May 2020
• Docket Number: No. 18-1292, No. 18-2206,18-1292
• Parties: Gustavo CUCALON, Petitioner, v. William P. BARR, Attorney General, Respondent. Gustavo Cucalon, Petitioner, v. William P. Barr, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

958 F.3d 245

Gustavo CUCALON, Petitioner,

v.William P. BARR, Attorney General, Respondent.

Gustavo Cucalon, Petitioner,

v.William P. Barr, Attorney General, Respondent.

No. 18-1292

No. 18-2206

United States Court of Appeals, Fourth Circuit.

Argued: October 30, 2019

Decided: May 7, 2020

ARGUED: Benjamin James Osorio, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Melissa K. Lott, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Mark Stevens, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Keith I. McManus, Assistant Director, Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before GREGORY, Chief Judge, and KEENAN and RICHARDSON, Circuit Judges.

Petitions for review denied by published opinion. Judge Keenan wrote the opinion, in which Chief Judge Gregory and Judge Richardson concurred.

BARBARA MILANO KEENAN, Circuit Judge:

Gustavo Cucalon, a native and citizen of Nicaragua, petitions for review of a final order of removal issued by the Board of Immigration Appeals (BIA). The BIA concluded that Cucalon’s conviction in 2006 for distribution of cocaine as an accommodation, in violation of Virginia Code § 18.2-248(D), rendered him removable as an alien convicted of an "aggravated felony," and as an alien convicted of a crime "relating to a controlled substance." See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). In Cucalon’s view, because Virginia prohibits the distribution of more substances than those prohibited under federal law, a conviction under Virginia Code § 18.2-248 does not categorically qualify as an "aggravated felony" or as a crime "relating to a controlled substance" under the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i).

Upon our review, we conclude that Virginia Code § 18.2-248 is divisible by prohibited substance. Applying the modified categorical approach, we hold that distribution of cocaine under Virginia Code § 18.2-248, including distribution of that substance as an accommodation under Virginia Code § 18.2-248(D), satisfies the federal definitions of an "aggravated felony" and of a crime "relating to a controlled substance." We also conclude that the BIA did not abuse its discretion in denying Cucalon’s motion to reconsider. We therefore deny Cucalon’s petitions for review.

I.

Cucalon has been a lawful permanent resident of the United States since 1987. He was convicted in 2006 of distribution of cocaine as an accommodation, in violation of Virginia Code § 18.2-248(D). In 2017, the Department of Homeland Security charged Cucalon with removability on two grounds: (1) as an alien convicted of an aggravated felony, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) ; and (2) as an alien convicted of a crime relating to a controlled substance, pursuant to 8 U.S.C. § 1227(a)(2)(B)(i).

Cucalon moved to terminate his removal proceedings, asserting that his conviction under Virginia Code § 18.2-248 did not qualify as an aggravated felony or as a crime relating to a controlled substance. The immigration judge (IJ) applied the modified categorical approach set forth in Descamps v. United States , 570 U.S. 254, 133 S. Ct. 2276, 186 L.Ed.2d 438 (2013), to both grounds of removability, and found that Cucalon was removable as charged.

The BIA applied a different analysis to the aggravated felony ground, but ultimately affirmed the IJ’s order of removal with respect to both grounds of removability. Cucalon later filed a petition for review with this Court.

Two days before filing his petition for review, Cucalon filed a motion for reconsideration with the BIA, asserting several new arguments and offering new evidence not presented in his initial administrative appeal. The BIA found that Cucalon had waived these arguments by failing to present them in a timely manner and that, in any event, the new issues lacked merit. Cucalon filed a second petition for review in this Court, challenging the BIA’s denial of his motion to reconsider. We consolidated the two petitions.

Cucalon challenges the BIA’s determination that his conviction under Virginia Code § 18.2-248 rendered him removable as an aggravated felon and as an alien convicted of a crime relating to a controlled substance. He argues that because the Virginia statute prohibits distribution of a wider range of substances than prohibited under federal law, his conviction does not qualify under the INA as an aggravated felony, here, a drug trafficking crime, or as a crime relating to a controlled substance. 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). Cucalon also argues that the Virginia statute is not divisible by prohibited substance and that, therefore, we should not apply the modified categorical approach. We disagree with Cucalon’s arguments.

A.

In general, we lack jurisdiction to review an order of removal based on an alien’s conviction of an aggravated felony or of a crime relating to a controlled substance. See 8 U.S.C. § 1252(a)(2)(C) ; Larios-Reyes v. Lynch , 843 F.3d 146, 152 (4th Cir. 2016). We nevertheless have jurisdiction to review constitutional claims and questions of law, including the question whether an alien’s conviction qualifies under either or both these categories of removable offenses. 8 U.S.C. § 1252(a)(2)(D) ; Larios-Reyes , 843 F.3d at 152. We review this legal issue de novo. Guevara-Solorzano v. Sessions , 891 F.3d 125, 131 (4th Cir. 2018) ; Castillo v. Holder , 776 F.3d 262, 267 (4th Cir. 2015). When, as here, the BIA has not adopted the reasoning of the IJ, we confine our review to the opinion of the BIA. Martinez v. Holder , 740 F.3d 902, 908 (4th Cir. 2014).

The BIA concluded that Cucalon’s Virginia drug conviction rendered him removable on the two separate grounds. The first ground subjects an alien to removal if he is convicted of violating a state law "relating to a controlled substance," as that term is defined in 21 U.S.C. § 802. See 8 U.S.C. § 1227(a)(2)(B)(i). Section 802 defines the term "controlled substance" to include substances listed in one of the five federal drug schedules. 21 U.S.C. §§ 802(6), 812 ; see Mellouli v. Lynch , 575 U.S. 798, 135 S. Ct. 1980, 1991, 192 L.Ed.2d 60 (2015) ("[T]o trigger removal under § 1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug defined in § 802." (internal brackets and quotation marks omitted)).

The BIA also held that Cucalon was removable on the additional ground of being an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii), because his Virginia conviction constituted a drug trafficking crime, one category of aggravated felonies set forth in the INA, id. § 1101(a)(43)(B).¹

Federal law defines the term "drug trafficking crime" to include "any felony punishable under the Controlled Substances Act," such as the knowing or intentional distribution of a controlled substance listed in the federal schedules. 18 U.S.C. § 924(c)(2) ; 21 U.S.C. §§ 812, 841(a). Cocaine is included as a controlled substance on federal Schedule II. 21 U.S.C. § 812.

To determine whether a state offense constitutes a drug trafficking crime or a crime relating to a controlled substance under the INA, we generally apply a categorical approach. Castillo , 776 F.3d at 267. Under this framework, we compare the federal definitions of "drug trafficking crime" and crime "relating to a controlled substance" to the elements of the relevant state offense. Id. If the elements of the state offense "correspond in substance to the elements" of the federal definition, without consideration of the individual’s underlying conduct, the state conviction is a categorical "match" to the federal definition. United States v. Dozier , 848 F.3d 180, 183 (4th Cir. 2017) (citation, internal quotation marks, and brackets omitted). However, when a state statute governs a "broader swath of conduct" than the federal definition, the state and federal definitions are not a categorical match. Descamps , 570 U.S. at 258, 133 S.Ct. 2276.

In limited circumstances, we apply the "modified categorical approach." Id. at 257, 133 S. Ct. 2276. We use this approach only when a statute is divisible, that is, the statute lists multiple elements in the alternative, and at least one of the resulting crimes is a categorical match to the federal definition. Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (2016) ; United States v. Furlow , 928 F.3d 311, 318 (4th Cir. 2019). Elements of a crime are the "constituent parts of a crime’s legal definition ... [that] the jury must find beyond a reasonable doubt." Mathis , 136 S. Ct. at 2248 (citation and internal quotation marks omitted). In contrast to a listing of alternative elements, if a statute lists only "various factual means of committing a single element," the statute is indivisible, and the categorical approach applies. Id. at 2248-49 (emphasis added).

When analyzing a divisible statute, the modified categorical approach enables us to review "a limited class of documents ... to determine what crime, with what elements," formed the basis of a defendant’s conviction. Id. at 2249. These documents include the charging document, the plea agreement or the transcript of the plea colloquy, and any jury instructions given. Shepard v. United States , 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ; Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Once we have determined the elements of the crime of conviction, we evaluate whether those elements match the federal definitions of a crime "relating to a controlled substance" and "drug trafficking crime." Mathis , 136 S. Ct. at 2256 ; Furlow , 928 F.3d at 319.

B.

In the present case, because both grounds of removability incorporate the same federal drug schedules, our analysis of Cucalon’s Virginia...