Guillen v. U.S. Attorney Gen.

• Decision Date: 13 December 2018
• Docket Number: No. 17-12247,17-12247
• Citation: 910 F.3d 1174
• Parties: Ramon Duran GUILLEN, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

910 F.3d 1174

Ramon Duran GUILLEN, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 17-12247

United States Court of Appeals, Eleventh Circuit.

December 13, 2018

David H. Stoller, Attorney, Law Offices of David Stoller, PA, Orlando, FL, for Petitioner.

Ann M. Welhaf, OIL, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Nicole Guzman, DHS, Office of Chief Counsel, Orlando, FL, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals, Agency No. AXXX-XX0-040

Before MARCUS, NEWSOM, and EBEL,^* Circuit Judges.

MARCUS, Circuit Judge:

An alien convicted of a state offense "relating to a controlled substance" as defined by federal law is eligible to be removed from the United States. 8 U.S.C. § 1227(a)(2)(B)(i). This case presents the issue whether a conviction for cocaine possession under Fla. Stat. § 893.13(6)(a) counts as a conviction of an offense "relating to a controlled substance" under this provision. Petitioner Ramon Duran Guillen argues that it does not, on the ground that the Florida statute is indivisible and applies to some substances that fall outside the federal definition of a controlled substance. We hold that Fla. Stat. § 893.13(6)(a) is divisible by the identity of the drug possessed, permitting the use of the modified categorical approach to determine what substance was involved in a particular offense. Because the record documents unambiguously reveal that Guillen’s convictions involved cocaine, a federally controlled substance, we deny the petition for review.

I.

The relevant facts are undisputed. Ramon Duran Guillen was born on July 2, 1984, in Mexico. He testified before an Immigration Judge (IJ) that he entered the United States illegally in 1991, later becoming a lawful permanent resident in 1999. His parents and four of his five siblings are also permanent residents, while his youngest sister was born in the United States and is an American. Guillen has lived with his parents and teenage sister in Sarasota, Florida, since 2014. He is unmarried and has no children.

Guillen’s criminal history consists of five incidents, all of which involved cocaine. In 2011, Guillen was first arrested for possession of cocaine under Fla. Stat. § 893.13(6)(a) as well as possession of a small quantity of marijuana. Guillen pleaded nolo contendere and was sentenced to thirty days in jail. Next, in 2014 Guillen was arrested on four counts including cocaine possession, property damage, possession of narcotic equipment, and resisting an officer. Guillen testified that the property damage and resistance occurred after he was arrested and sent to a hospital because of a suspected cocaine overdose. He again pleaded nolo contendere and received a four-month sentence. In 2015, Guillen pleaded nolo contendere to possession of cocaine, possession of more than 20 grams of marijuana, driving under the influence, and fleeing or attempting to elude a police officer. He received a nine-month sentence. Later that year, Guillen was arrested for vehicle theft, another count of cocaine possession, and possession of a small amount of marijuana. Guillen again pleaded nolo contendere, later testifying before the IJ that he had stolen a vehicle from a friend’s mechanic shop while under the influence of marijuana and cocaine.

Most recently, in November 2015 Guillen was arrested for cocaine possession, leaving the scene of an accident, driving under the influence, driving with a suspended license, and possession of narcotics equipment. An officer testified that his radar recorded Guillen, while high on cocaine and marijuana, traveling at 102 miles per hour before his arrest. He once more pleaded nolo contendere, and the next year, DHS officers encountered Guillen at a probation office in Sarasota, Florida, during "routine screening of foreign-born offenders under supervision of the Florida Department of Corrections." At this time he was identified as an alien eligible to be removed from the United States.

The government filed a Notice to Appear charging Guillen as removable because he was convicted of a state offense "relating to a controlled substance" as defined by federal law. 8 U.S.C. § 1227(a)(2)(B)(i). Guillen filed an application for cancellation of removal under 8 U.S.C. § 1229b(a). This section permits the government to cancel a removal order for an alien who 1) was "lawfully admitted for permanent residence" for at least five years; 2) "has resided in the United States continuously" for seven years; and 3) has no "aggravated felony" convictions. If these requirements are met, an alien is only made eligible for cancellation of removal—the decision to grant relief is committed to the discretion of the Immigration Judge.

The IJ found that Guillen met the statutory requirements. He was granted lawful permanent resident status in 2000, and he lawfully resided in the United States since that time. And despite his criminal record, Guillen had never been convicted of an aggravated felony under the immigration law definition. See 8 U.S.C. § 1101(a)(43). Still, the Immigration Judge concluded that Guillen did not merit cancellation of removal as a matter of discretion. The standard for this determination is whether "on balance, the totality of the evidence before [the IJ] indicates that the respondent has adequately demonstrated that he [or she] warrants a favorable exercise of discretion." Matter of A- M-, 25 I. & N. Dec. 66, 76 (BIA 2009) (second alteration in original) (internal quotation marks omitted).

The IJ recognized Guillen’s family ties in the United States, the support he provides to his parents and youngest sister, and his continued residence in the United States since he was seven years old. But these positive equities were outweighed by his extensive series of criminal offenses, several instances of apparent dishonesty on income tax filings, and the likelihood that he would reoffend given his drug problem. At bottom, "the seriousness of his criminal convictions and his lack of rehabilitation" made his claim for relief unsuccessful. The IJ therefore denied Guillen’s application and ordered his removal to Mexico.

Guillen appealed the denial of his application for cancellation of removal to the Board of Immigration Appeals. Before the Board, Guillen continued to press his claim for discretionary relief and added a legal argument. Guillen claimed that he was ineligible for removal because none of his convictions qualified under § 1227(a)(2)(B)(i) as a conviction relating to a controlled substance. Guillen contended that a conviction under Fla. Stat. § 893.13(6)(a) is not categorically related to a controlled substance because the state controlled substance schedules included a number of substances that were not listed in the federal schedules. Thenylfentanyl, 1,4–butanediol, and trenbolone acetate are three examples of substances that are considered controlled substances under Florida law, but not federal law.¹ Compare Fla. Stat. § 893.03 with 21 U.S.C. § 812 and 21 C.F.R. § 1308 (2018). He further argued that the statute was not divisible, preventing a closer look at record documents to determine what substances were involved in his offenses.

The Board rejected Guillen’s argument. Relying on Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014), the Board held that merely pointing to differences in the substances covered by Florida law and the federal controlled substance schedules was insufficient. Rather, one must show that there is "a realistic probability that the state will successfully prosecute conduct outside the removable offense’s generic definition" to establish that the state offense does not render an alien removable. The Board also rejected Guillen’s argument that § 893.13(6)(a) is overbroad because it covers both "actual or constructive possession" of a controlled substance.² The well-established rule is that federal drug laws likewise cover constructive possession. See, e.g., United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996). Still, the Board assumed for the sake of argument that Guillen was correct that a Florida possession conviction is not categorically related to a controlled substance.

More significantly, in as much as this is the ground on which the government now defends the BIA’s decision, the Board held that the Florida possession statute was divisible. The Board relied on the structure of the statute, which "enumerates alternative bases for conviction separated by the disjunctive ‘or,’ " and cited a Florida District Court of Appeal holding that the specific drug possessed is an element of the offense under § 893.13(6)(a). See R.C.R. v. State, 174 So.3d 460, 462 (Fla. Dist. Ct. App. 2015). And last, the Board noted that the standard jury instructions for cocaine possession under this section require a jury to find "that the substance was cocaine." The Board therefore concluded that the statute was divisible by the identity of the substance possessed, permitting the use of the modified categorical approach. The Board found sufficient evidence in the records of Guillen’s convictions to establish that his convictions under the Florida statute were for possession of cocaine, qualifying him for removal. The Board did not reach his convictions for marijuana possession or possession of narcotics equipment, because Guillen’s cocaine possession convictions were sufficient to establish his eligibility for removal.

The Board then reviewed the Immigration Judge’s discretionary denial of Guillen’s application. Examining the same set of facts, the Board agreed that his criminal history and lack of demonstrated rehabilitation outweighed the equities favoring cancellation of removal. The Board dismissed the appeal and Guillen timely petitioned this Court for review.

II.

We are obliged, as a threshold matter, to ensure that we have jurisdiction. Courts generally lack jurisdiction to review "any final order of removal against an alien who is...