Francisco v. U.S. Attorney Gen.

• Decision Date: 12 March 2018
• Docket Number: No. 15-13223,15-13223
• Parties: Jose Emilio Ulloa FRANCISCO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

884 F.3d 1120

Jose Emilio Ulloa FRANCISCO, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 15-13223

United States Court of Appeals, Eleventh Circuit.

March 12, 2018

Liana Salas, Law Offices of Jay Marks, LLC, Silver Spring, MD, for Petitioner.

Jesse Matthew Bless, Jennifer A. Bowen, Yedidya Cohen, Jennifer Paisner Williams, Anthony Cardozo Payne, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Nicole Guzman, DHS, Office of Chief Counsel, Orlando, FL, for Respondent.

Before TJOFLAT and WILSON, Circuit Judges, and ROBRENO,^* District Judge.

TJOFLAT, Circuit Judge:

The Armed Career Criminal Act ("ACCA") provides that a person convicted of violating 18 U.S.C. § 922(g) faces an enhanced sentence if he or she has three previous convictions for "violent felon[ies]."¹ To determine whether a conviction qualifies as a violent felony, a court may look "only to the statutory definition[ ] of the prior offense[ ], and not to the particular facts underlying th[e] conviction[ ]." Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 2159, 109 L.Ed.2d 607 (1990). In some cases, the statute under which the defendant was convicted contains multiple offenses—some that are violent felonies and some that are not. This means that the statute is divisible. Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). In such cases, the Government must prove that the conviction qualified as a violent felony. To do so, it may introduce limited parts of the record of the conviction.² Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005) (plurality opinion). If these parts, which we refer to as Shepard documents, do not identify the offense of conviction, the Government has failed to carry its burden of proof, and it is presumed that the conviction was for an offense that did not qualify as a violent felony.³ Johnson v. United States , 559 U.S. 133, 137, 130 S.Ct. 1265, 1269, 176 L.Ed.2d 1 (2010).

This same presumption applies in proceedings brought by the Attorney General ("AG") under the Immigration and Nationality Act ("INA") to remove an alien from the United States on the ground that the alien, after admission into the country, had been convicted of an offense designated in the INA. See INA § 237(a)(2); 8 U.S.C. § 1227(a)(2). If the alien was convicted under a divisible statute, one which contains both designated offenses and non-designated offenses, the AG may prove that the alien’s conviction qualified as one of the designated offenses by introducing Shepard documents.⁴

Moncrieffe v. Holder , 569 U.S. 184, 191–92, 133 S.Ct. 1678, 1684–85, 185 L.Ed.2d 727 (2013). If the AG fails to do so, it is presumed that the alien was convicted of a non-designated offense. Id. This is referred to as the Moncrieffe presumption. See, e.g. , Sauceda v. Lynch , 819 F.3d 526, 531–32 (1st Cir. 2016).

In the case before us, the AG proved that the alien, a lawful permanent resident, was removable for having been convicted of a felony related to drug trafficking. INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). After his removal was ordered, the alien petitioned the AG to cancel the removal. To be eligible for such discretionary relief, the alien had to prove that he had not previously been convicted of an "aggravated felony," as the INA defines that term. INA § 240A(a)(3); 8 U.S.C. § 1229b(a)(3).

The state statute under which the alien had been convicted created the felony of "trafficking in cocaine," which was defined to include the selling, purchasing, manufacturing, delivering, or possessing of cocaine, or the bringing of cocaine into Florida. Fla. Stat. § 893.135(1)(b) 1.c. The alien admitted that these alternative conduct elements created separate crimes, some of which fell under the definition of an aggravated felony and some which did not. He argued that because the AG had not shown that he had been convicted of one of the crimes constituting an aggravated felony, the Moncrieffe presumption applied and required the immigration court to find that he had been convicted of an offense that was not an aggravated felony.

The Board of Immigration Appeals ("BIA") agreed that the state statute created separate crimes, some of which were aggravated felonies and some of which were not. It then rejected the alien’s argument—holding that he had the burden to prove that his conviction was not for an aggravated felony—and denied his application for cancellation of removal. The alien now petitions us to review the BIA’s decision. A recent decision of this Court binds us to hold that the alien did not commit an aggravated felony because the state statute under which he was convicted is neither divisible nor has a categorical match in the Controlled Substance Act ("CSA"). See Cintron v. U.S. Attorney Gen. , No. 15-12344, 882 F.3d 1380, 1387–88, 2018 WL 947533, at *6 (11th Cir. Feb. 20, 2018). We therefore grant the alien’s petition, vacate the BIA’s decision, and remand the case for further proceedings.

I.

The INA authorizes the AG to remove from the United States any alien who, at any time after admission, was convicted of certain felonies, including the violation of a law "relating to a controlled substance" and the commission of an "aggravated felony." INA § 237(a)(2)(A)(iii), (a)(2)(B)(i); 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(B)(i). To obtain the alien’s removal, the AG must prove a conviction of one of these felonies by clear and convincing evidence. INA § 240(c)(3)(A); 8 U.S.C. § 1229a(c)(3)(A).⁵

If an immigration court issues an order of removal, a permanent resident may petition the AG to cancel the removal. INA § 240A(a); 8 U.S.C. § 1229b(a). The AG may exercise his discretion to grant such relief if the alien satisfies three requirements, one being that the alien "has not been convicted of any aggravated felony."⁶ INA § 240A(a)(3); 8 U.S.C. § 1229b(a)(3). The alien has the burden both to establish these "eligibility requirements" and to show that he or she "merits a favorable exercise of discretion,"⁷ INA § 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A), by a "preponderance of the evidence," 8 C.F.R. § 1240.8(d).⁸

The INA defines the term "aggravated felony" in a seemingly interminable list of offenses. See INA § 101(a)(43); 8 U.S.C. § 1101(a)(43). The list includes "illicit trafficking in a controlled substance" and "drug trafficking crime[s]" as defined under federal law.⁹ INA § 101(a)(43)(B); 8 U.S.C. § 1101(a)(43)(B). A state crime constitutes an aggravated felony for illicit trafficking in a controlled substance only if the conduct it proscribes is punishable as a felony under federal law. Lopez v. Gonzales , 549 U.S. 47, 60, 127 S.Ct. 625, 633, 166 L.Ed.2d 462 (2006).

The Supreme Court has constructed a framework—with roots in both immigration and criminal law—to determine when a state crime constitutes an aggravated felony. See Mellouli v. Lynch , 575 U.S. ––––, 135 S.Ct. 1980, 1986–87, 192 L.Ed.2d 60 (2015). The framework was designed for cases in which the Government seeks the removal of an alien under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an "aggravated felony," and the immigration court has to decide whether the alien’s state conviction qualified as one.¹⁰ The framework presents two approaches: the categorical approach, which poses a question of law,¹¹ and the modified categorical approach, which poses a mixed question of law and fact.¹² We discuss each approach in turn.

A.

The categorical approach is used to decide whether the alien’s state conviction is of an offense "comparable to an offense listed in the INA." Moncrieffe , 569 U.S. at 190, 133 S.Ct. at 1684. Under this approach, "the facts" underlying the conviction are ignored. Id. The immigration court looks "instead to whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony." Id. (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 186, 127 S.Ct. 815, 818, 166 L.Ed.2d 683 (2007) ). The question is whether "the state statute shares the nature of the federal offense that serves as a point of comparison." Moncrieffe , 569 U.S. at 190, 133 S.Ct. at 1684. This involves a comparison of the elements of the state offense and the federal offense to see if they match. See Mathis v. United States , 579 U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). After determining that the offenses categorically match, the court must "presume that the conviction ‘rested upon nothing more than the least of the acts’ criminalized." Moncrieffe , 569 U.S. at 190–91, 133 S.Ct. at 1684 (alterations omitted) (quoting Johnson , 559 U.S. at 137, 130 S.Ct. at 1269 ).

The Supreme Court developed the categorical approach to promote efficiency in removal proceedings by prohibiting the relitigation of "past convictions in minitrials conducted long after the fact." Moncrieffe , 569 U.S. at 200–01, 133 S.Ct. at 1690. The approach eliminates the necessity of a factual inquiry that would unduly burden the administration of immigration law, especially given that the alien’s conviction may have occurred years prior to the removal proceeding. Mellouli , 575 U.S. at ––––, 135 S.Ct. at 1986–87. The categorical approach also "enables aliens to anticipate the immigration consequences of guilty pleas in criminal court." Id. at 1987 (quotation omitted).

B.

The Supreme Court has modified the categorical approach where the criminal statute is "a so-called ‘divisible statute.’ " Descamps , 570 U.S. at 257, 133 S.Ct. at 2281. A divisible statute is one that "sets out one or more elements of the offense in the alternative." Id. ; see Donawa v. U.S. Attorney Gen. , 735 F.3d 1275, 1281 (11th Cir. 2013) (stating that a statute is divisible when it "lists a number of alternative elements that effectively create several different crimes"). In Mathis v. United States , the...