Lopez v. U.S. Attorney Gen.

• Decision Date: 21 November 2018
• Docket Number: No. 17-15179,17-15179
• Citation: 909 F.3d 388
• Parties: Shariff David BULA LOPEZ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

909 F.3d 388

Shariff David BULA LOPEZ, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 17-15179

United States Court of Appeals, Eleventh Circuit.

November 21, 2018

HULL, Circuit Judge:

Shariff Bula Lopez petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming the Immigration Judge's ("IJ") order of removal. After review, and with the benefit of oral argument, we dismiss in part and deny in part Bula Lopez's petition.

I. BACKGROUND

A. Immigration Proceedings

In 1989, Bula Lopez, a native and citizen of Colombia, moved to the United States, and in 1993 he became a lawful permanent resident ("LPR") of the United States. In 1997, Bula Lopez pled guilty "in his best interest" in Florida state court to one count of possession with intent to deliver Flunitrazepam¹ and was sentenced to two years' probation. Upon returning from a trip abroad in April 2010, Bula Lopez applied for admission to the United States as an LPR and was paroled into the United States pending removal proceedings based on his prior drug conviction.

In September 2010, the Department of Homeland Security ("DHS") issued Bula Lopez a Notice to Appear ("NTA") charging him as removable, in relevant part: (1) under Immigration and Nationality Act ("INA") § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of a crime involving moral turpitude ("CIMT"); and (2) under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), for having been convicted of violating a law relating to a controlled substance, as defined in the federal Controlled Substances Act ("CSA"). Both charges were based on Bula Lopez's 1997 Florida conviction for possession with intent to deliver Flunitrazepam.

Bula Lopez, through counsel, denied these charges of removability. Before the IJ, Bula Lopez argued, among other things, that his 1997 Florida conviction was for simple possession of Flunitrazepam, not possession with intent to deliver, and thus his prior conviction did not constitute a CIMT.

B. IJ's Order

In a written order, the IJ found that Bula Lopez's Florida conviction was for possession with intent to deliver, not simple possession. Florida Statute § 893.13(1)(a) criminalizes possession with intent to deliver, whereas Florida Statute § 893.13(6)(a) criminalizes simple possession.

The IJ noted that DHS bears the burden of proving Bula Lopez's inadmissibility by clear and convincing evidence. The IJ acknowledged there was "some ambiguity" regarding the statutory basis for Bula Lopez's Flunitrazepam conviction. The language of the guilty plea form, plea hearing transcript, sentencing documents, and arrest warrant affidavit all described his offense as possession with intent to deliver. However, one document — the information — referred to § 893.13(6)(a), although it also described the offense as possession with intent to deliver. The IJ therefore found "that the preponderance of the evidence supports the conclusion that [Bula Lopez] was convicted under Fla. Stat. § 893.13(1), and not Fla. Stat. § 893.13(6)(a)."

Having determined that Bula Lopez's prior conviction was for possession with intent to deliver Flunitrazepam under § 893.13(1)(a), the IJ then determined that his conviction qualified as a CIMT under the INA and sustained that charge of removability. The IJ did not, however, sustain Bula Lopez's second charge of removability, for having violated a law relating to a controlled substance, as defined in the CSA. The IJ concluded that Bula Lopez's conviction did not qualify as a controlled substance violation because Flunitrazepam was not listed in the CSA schedules found in 21 U.S.C. § 812 and, thus, Bula Lopez's Flunitrazepam conviction did not "relate to a controlled substance" within the meaning of the INA.

C. Appeal to the BIA

Bula Lopez, through counsel, appealed to the BIA. On appeal, Bula Lopez argued that the IJ applied the wrong standard of proof in determining that his 1997 Florida conviction was for possession with intent to deliver, rather than mere possession. Bula Lopez asserted that DHS had the burden to prove his conviction was a CIMT by clear and convincing evidence, but the IJ erroneously applied a preponderance of the evidence standard. Bula Lopez also argued that the IJ erred in sustaining the CIMT charge because Flunitrazepam was not a federally controlled substance, and his offense, whether under § 893.13(6)(a) or § 893.13(1)(a), lacked the requisite "evil intent" mens rea requirement. Bula Lopez also requested a remand to pursue a waiver of inadmissibility under INA § 212(h).

In response, DHS moved for summary affirmance of the IJ's order. DHS argued that the IJ correctly found Bula Lopez was convicted of possession with intent to deliver Flunitrazepam and that his conviction constituted a CIMT. In addition, DHS argued that, contrary to the IJ's finding, Flunitrazepam is a federally controlled substance under the CSA.

In his reply brief, Bula Lopez contended, among other things, that the BIA could not consider the IJ's finding that Flunitrazepam is not a controlled substance because DHS did not file a cross-appeal.

D. BIA Decision

The BIA dismissed Bula Lopez's appeal and denied his motion to remand. First, the BIA addressed Bula Lopez's argument that the IJ applied the wrong burden of proof. The BIA noted that the IJ identified the correct clear and convincing evidence standard in its decision, but also referred to the incorrect preponderance of the evidence standard in making its finding regarding Bula Lopez's statute of conviction. The BIA concluded, however, that "this misstatement [was] not material" because the record provided clear and convincing evidence that Bula Lopez was convicted under § 893.13(1)(a) for possession with intent to deliver Flunitrazepam.

Next, the BIA affirmed the IJ's determination that Bula Lopez's conviction was a CIMT. In the course of that analysis, the BIA "address[ed] the [IJ's] erroneous determination that Flunitrazepam is not a controlled substance under immigration law." The BIA explained that: (1) although Flunitrazepam is "not directly listed at 21 U.S.C. § 812 (listing scheduled substances), this section of the law specifically provides for updating of the schedules by the Attorney General, under specified administrative procedures"; (2) "the additions and deletions are then to be listed in the Code of Federal Regulations at 21 C.F.R. § 1308"; and (3) "Flunitrazepam is listed at 21 C.F.R. § 1308.14(c)(23) and is a controlled substance under schedule IV." Because it concluded that Flunitrazepam is a controlled substance, the BIA found Bula Lopez also was removable for having violated a law relating to a controlled substance under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II).

Further, the BIA expressly rejected Bula Lopez's argument that it could not consider the IJ's finding regarding Flunitrazepam on appeal because DHS had not cross-appealed. The BIA stated: "No separate appeal is required where, as here, the non-appealing party seeks to defend the [IJ's] decision based on different reasons."

The BIA also denied Bula Lopez's request for a remand to pursue a § 212(h) waiver. The BIA concluded that Bula Lopez was ineligible for such relief because his Flunitrazepam conviction was a "drug trafficking crime" and, therefore, an aggravated felony under the INA.

Bula Lopez now petitions this Court for review.

II. STANDARD OF REVIEW

When the BIA issues its own decision, we review only that decision, except to the extent the BIA expressly adopts the IJ's opinion or reasoning. Seek v. U.S. Att'y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). We review the BIA's legal conclusions de novo and its factual determinations under the substantial evidence test. Gonzalez v. U.S. Att'y Gen., 820 F.3d 399, 403 (11th Cir. 2016). We apply the substantial evidence test even when, as here, DHS was required to prove removability by clear and convincing evidence in the administrative proceedings. Adefemi v. Ashcroft, 386 F.3d 1022, 1028 (11th Cir. 2004) (en banc). Under the substantial evidence test, we will affirm the BIA's factual findings as long as they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Indrawati v. U.S. Att'y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) (internal quotations omitted). We will reverse the BIA's factual findings only if the record compels reversal, and the mere fact that the record may support a contrary conclusion is insufficient to justify reversal of the BIA's findings. Id.

Bula Lopez argues that the BIA erred: (1) in concluding his prior conviction was for possession with intent to deliver Flunitrazepam because the records of his conviction are ambiguous; (2) in considering DHS's argument on appeal that, contrary to the IJ's determination, Bula Lopez was removable for having committed a controlled substance violation because DHS did not file a cross-appeal; and (3) in concluding that Flunitrazepam is a controlled substance for purposes of the INA, such that his conviction qualifies as a CIMT, controlled substance violation, and aggravated felony. We address each issue in turn.

III. STATUTE OF CONVICTION

As a preliminary matter, we must address whether we have jurisdiction to review the BIA's factual determination that Bula Lopez was convicted of possession with intent to deliver under Fla. Stat. § 893.13(1)(a), rather than simple possession under Fla. Stat. § 893.13(6)(a). Section 242 of the INA limits our jurisdiction to review final orders of removal against criminal aliens who have been found removable for having committed a controlled substance violation. See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) ("[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) ... of this title ...."); INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(I...