In re Ferreira
| Decision Date | 22 September 2014 |
| Docket Number | Interim Decision #3815 |
| Citation | 26 I&N Dec. 415 |
| Parties | Matter of Gustavo Ribeiro FERREIRA, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
Where a State statute on its face covers a controlled substance not included in the Federal controlled substances schedules, there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach.
FOR RESPONDENT: Mary Foden, Esquire, Hartford, Connecticut
FOR THE DEPARTMENT OF HOMELAND SECURITY: Amit Patel, Assistant Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.
PAULEY, Board Member:
In a decision dated August 21, 2013, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony involving illicit trafficking in a controlled substance any time after admission under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (2012). The Immigration Judge also found the respondent removable pursuant to section 237(a)(2)(B)(i) of the Act, as an alien convicted of a controlled substance violation any time after admission. The respondent has appealed from that decision. The record will be remanded to the Immigration Judge for further proceedings.
The respondent is a native and citizen of Brazil who was admitted to the United States as a lawful permanent resident on October 20, 2004. On March 11, 2010, he pled guilty to the "sale of certain illegal drugs" in violation of section 21a-277(a) of the Connecticut General Statutes Annotated. The criminal court sentenced the respondent to 5 years of confinement, suspended the execution of the sentence, and granted him 5 years of probation. The respondent also received a fine of $7,500. Based on this conviction, the Department of Homeland Security ("DHS") chargedthe respondent with removability under sections 237(a)(2)(A)(iii) and (B)(i) of the Act.
Both of these removability provisions incorporate the definition of a "controlled substance" in section 102 of the Controlled Substances Act ("CSA"), which is codified as 21 U.S.C. § 802 (2012). Under the CSA, a controlled substance is defined as "a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter." 21 U.S.C. § 802(6).
With regard to section 237(a)(2)(A)(iii) of the Act, the term "aggravated felony" in section 101(a)(43)(B) encompasses "illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code)." (Emphasis added.) An offense is a "drug trafficking crime" under 18 U.S.C. § 924(c)(2) (2012) if it is punishable as a "felony under the Controlled Substances Act, (21 U.S.C. 801 et seq.)." See Lopez v. Gonzales, 549 U.S. 47, 56 n.7, 60 (2006) ().
(Emphasis added.)
In support of the charges of removability, the DHS presented a copy of the respondent's criminal judgment, which states that he pled guilty to "sale of certain illegal drugs." The DHS also submitted a plea colloquy providing that the respondent was pleading guilty to the "sale of narcotics." Neither document identifies the specific narcotics by name.
The respondent filed a motion to terminate, arguing that the DHS had not established removability pursuant to the categorical approach. In this regard, the respondent observed that when he pled guilty in 2010, Connecticut's drug schedules regulated two obscure opiate derivatives (benzylfentanyl and thenylfentanyl) that have not been included in the Federal controlled substance schedules since 1986. He cited three cases that compared the Federal and Connecticut controlled substances schedulesand concluded that the State schedules were broader than the Federal schedules insofar as the State schedules listed these two opiate derivatives and the CSA did not. United States v. Lopez, 536 F. Supp. 2d 218, 221-22 (D. Conn. 2008); United States v. Madera, 521 F. Supp. 2d 149, 154-55 (D. Conn. 2007); United States v. Cohens, No. 3:07-cr-195 (EBB), 2008 WL 3824758 at *4-5 (D. Conn. Aug. 13, 2008); see also McCoy v. United States, 707 F.3d 184, 187-88 (2d Cir. 2013) ().1
Since the Connecticut schedules were broader than the Federal schedules at the time of his conviction, the respondent contended that section 21a-277(a) did not "necessarily" proscribe conduct that was an offense under the CSA, as required by Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013). Moreover, he asserted that the record of conviction presented by the DHS did not provide a factual basis regarding the substance involved. Therefore, the respondent argued that the DHS did not satisfy its burden of proving removability by clear and convincing evidence pursuant to section 240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A) (2012), and 8 C.F.R. §1240.8(a) (2013).
In his decision, the Immigration Judge did not apply the categorical approach, instead proceeding directly to the modified categorical approach. Relying on Gousse v. Ashcroft, 339 F.3d 91 (2d Cir. 2003), he concluded that the DHS met its burden of proof through submission of the plea colloquy, which establishes that the respondent's offense involved a narcotic substance. On appeal, the respondent argues that reversal and termination are required under Moncrieffe.2 The DHS has filed a motion for summary affirmance.
This case presents an issue that often confronts Immigration Judges and the Board in determining whether an alien is removable based ona conviction under State law for possessing or trafficking in a controlled substance. Since the enactment of the CSA in 1970, approximately 160 substances have been added, removed, or transferred from one schedule to another. See Office of Diversion Control, Drug Enforcement Admin., U.S. Dep't of Justice, Controlled Substance Schedules, http://www.dea diversion.usdoj.gov/schedules/ (last visited Sept. 19, 2014) ("Controlled Substance Schedules"). An updated and complete list of the five schedules is published annually. See 21 C.F.R. §§ 1308.11-1308.15 (2014). Substances are placed in their respective schedules based on their currently accepted medical use in treatment in the United States, their relative abuse potential, and the likelihood that they will cause dependence when being abused. See Controlled Substance Schedules, supra.
Since the schedules of the CSA change frequently, they often do not match State lists of controlled substances, which are found in statutes and regulations that are amended with varying frequency. That was the case here, because Connecticut listed benzylfentanyl and thenylfentanyl as controlled substances in its regulations at the time of the respondent's 2010 conviction in violation of section 21a-277(a) of the Connecticut General Statutes Annotated, long after the 1985 removal of these two obscure substances from the Federal schedules. See also Sarah French Russell, Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing, 43 U.C. Davis L. Rev. 1135, 1205 n. 344 (2010) ().
Connecticut amended its schedules to exclude benzylfentanyl and thenylfentanyl shortly after the publication of United States v. Madera, United States v. Lopez, and United States v. Cohens. In any event, the presence of these two substances in the Connecticut schedules at the time of the respondent's conviction meant that the definition of a controlled substance incorporated by section 21a-277(a) was broader than the definition of a controlled substance in 21 U.S.C. § 802(6), which is incorporated by reference into sections 101(a)(43)(B) and 237(a)(2)(B)(i) of the Act.
In Moncrieffe, the Court considered whether an alien's conviction for possession of marijuana with intent to distribute under Georgia law qualified as an aggravated felony conviction under section 101(a)(43)(B) of the Act, making him removable under section 237(a)(2)(A)(iii). The Court explained that the categorical approach requires looking not to the facts of a prior criminal case, but to "whether 'the state statute defining the crime of conviction' categorically fits within the 'generic' federal definition of a corresponding" removal ground. Moncrieffe v. Holder, 133 S. Ct. at 1684 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007))."Generic" means that "offenses must be viewed in the abstract, to see whether the state statute shares the nature of the Federal offense that serves as a point of comparison." Id. Therefore, a State offense categorically matches a generic Federal offense only if a conviction for the State offense "'necessarily' involved . . . facts equating" to the generic Federal...
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