Cintron v. U.S. Attorney Gen.

882 F.3d 1380

Natalia Lorena CINTRON, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

Nos. 15-12344

15-14352

United States Court of Appeals, Eleventh Circuit.

February 20, 2018

Humberto Jose Corralesm, Law Office of Humberto J. Corrales, WEST MIAMI, FL for Petitioner.

Christina Greer, U.S. Department of Justice, Office of Immigration Litigation, Richard Zanfardino, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, OIL, Office of Immigration Litigation, WASHINGTON, DC, Nicole Guzman, DHS, Office of Chief Counsel, ORLANDO, FL, for Respondent.

Robert Mark Loeb, Thomas Mark Bondy, Orrick Herrington & Sutcliffe, LLP, WASHINGTON, DC, Brian Philip Goldman, Orrick Herrington & Sutcliffe, LLP, SAN FRANCISCO, CA, Aaron W. Scherzer, Orrick Herrington & Sutcliffe, LLP, NEW YORK, NY, Jayashri Srikantiah, Stanford Law School, STANFORD, CA, for Amicus Curiae.

Before MARCUS, JILL PRYOR and SILER,^* Circuit Judges.

JILL PRYOR, Circuit Judge:

Natalia Cintron petitions for review of a Board of Immigration Appeals ("BIA") decision denying her application for cancellation of removal from the United States and ordering that removal. The BIA concluded that Cintron failed to prove that she had not been convicted of an aggravated felony, which rendered her ineligible for cancellation of removal. In short, the BIA determined that the Florida narcotics statute under which Cintron had been convicted was divisible into separate offenses and, because the record of her conviction was inconclusive regarding which offense she had committed, she could not demonstrate her eligibility for cancellation of removal.

We disagree with the BIA's conclusion. Because the Florida statute under which Cintron was convicted was indivisible and categorically overbroad, a conviction under that statute cannot qualify as an aggravated felony. Cintron's narcotics conviction therefore does not disqualify her from cancellation of removal. We grant her petition and remand to the BIA to reconsider her application.¹

I. BACKGROUND

Cintron is a native and citizen of Argentina and a lawful permanent resident of the United States. In 2009, she pled guilty to violating Florida Statutes § 893.135(1)(c) 1. (2007), which criminalized various narcotics offenses. The Department of Homeland Security initiated removal proceedings against Cintron, and an immigration judge ordered her removal to Argentina. She appealed this decision to the BIA, which overturned it because the record of her narcotics conviction was inconclusive as to the elements of her crime of conviction. The BIA remanded the case to the immigration judge, and Cintron applied for cancellation of removal. The immigration judge determined that because the record of her conviction remained inconclusive, she failed to prove her crime of conviction was not an "aggravated felony" that would render her ineligible for cancellation of removal under the Immigration and Nationality Act ("INA") § 240A(a)(3). The immigration judge once again ordered her removal. Cintron appealed to BIA, which agreed with the immigration judge that she was ineligible for cancellation of removal because of the Florida conviction.

The BIA reached two conclusions about Cintron's Florida conviction. First, it determined that although a § 893.135(1)(c) 1. offense was not categorically an aggravated felony, the Florida statute was divisible. That is, the statute listed multiple elements in the alternative, effectively creating several different crimes. Second, the BIA concluded that because Cintron was unable to produce any documentation identifying which of those crimes she committed, she failed to carry her burden of proving that she had never been convicted of an aggravated felony. The BIA dismissed her appeal, and Cintron then filed this petition for review of the BIA's decision.

II. DISCUSSION

Whether Cintron's crime of conviction was an aggravated felony is a question of law that we review de novo . Donawa v. U.S. Att'y Gen. , 735 F.3d 1275, 1279 (11th Cir. 2013).² In answering this question, we first discuss the meaning of "aggravated felony" in the INA and the so-called "categorical approach" we must use to determine whether an offense qualifies as an aggravated felony. Second, applying the Supreme Court's instructions and relevant Florida law, we conclude that the narcotics statute under which Cintron was convicted was indivisible and categorically overbroad and, therefore, not an aggravated felony under the INA. Third, we explain why the government's arguments to the contrary are unavailing.

A. We Use a "Categorical Approach" to Determine Whether an Offense Qualifies as an Aggravated Felony Under the INA.

The INA provides that "[t]he Attorney General may cancel removal in the case of an alien who is ... deportable from the United States if the alien ... has not been convicted of any aggravated felony." INA § 240A(a)(3). The INA defines "aggravated felony" to include "illicit trafficking in a controlled substance ... including a drug trafficking crime" as defined in 18 U.S.C. § 924(c). INA § 101(a)(43)(B). A "drug trafficking crime" is "any felony punishable under the Controlled Substances Act" ("CSA"), 18 U.S.C. § 924(c)(2), which, as relevant here, includes manufacturing, distributing, or dispensing a controlled substance or possessing a controlled substance with the intent to manufacture, distribute, or dispense it. 21 U.S.C. § 841(a)(1). Absent circumstances not present here, simple possession is not punishable as a felony under the CSA, so it is not a drug trafficking crime and thus not an aggravated felony under the INA. See 21 U.S.C. § 844.

"When the Government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA." Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). "Under this approach we look not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony." Id. (internal quotation marks omitted). "[A] state offense is a categorical match with a generic federal offense only if a conviction of the state offense necessarily involved facts equating to the generic federal offense." Id. (internal quotation marks and alterations omitted). "Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense." Id. at 190-91, 133 S.Ct. 1678 (internal quotation marks and alterations omitted).

If the state statute "lists multiple, alternative elements, and so effectively creates several different crimes," then the statute is "divisible," and we employ the "modified categorical approach ... to determine which alternative formed the basis of the [noncitizen]'s prior conviction." Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 2281, 2285, 186 L.Ed.2d 438 (2013) (internal quotation marks omitted).³ Under the modified categorical approach, we look "to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a [noncitizen] was convicted of." Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). These documents are known as Shepard⁴ documents.

Sometimes, though, what appear in a statute to be alternative elements—" ‘constituent parts’ of a crime's legal definition" that either must be admitted to by a defendant or found by a fact-finder to sustain a conviction—are instead alternative "means" of committing a single offense. Mathis , 136 S.Ct. at 2248. Unlike elements, "means" are circumstances that have no particular legal significance and "need neither be found by a jury nor admitted by a defendant." Id. If instead of listing alternative elements a statute lists alternative means, any one of which would not constitute an aggravated felony, then the statute is indivisible and categorically cannot constitute a generic offense. See id. at 2256-57.

B. Florida Statutes § 893.135(1)(c) 1. Is Categorically Overbroad and Indivisible; Thus, Cintron's Conviction Does Not Qualify as an Aggravated Felony Under the INA.

At the time of Cintron's conviction, Florida Statutes § 893.135(1)(c) 1. provided:

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any morphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in s. 893.03(1)(b), (2)(a), (3)(c)3., or (3)(c)4., or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree, which felony shall be known as "trafficking in illegal drugs," punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Fla. Stat. § 893.135(1)(c) 1.⁵

Both parties agree that a violation of Florida Statutes § 893.135(1)(c) 1. was not categorically an aggravated felony because the least of the acts it criminalized—mere possession of a listed narcotic—is not a felony under the CSA. See id .; see also 21 U.S.C. §§ 841(a)(1), 844. Where the parties disagree is whether the Florida statute was divisible, such that the modified categorical approach applies, or indivisible, meaning the statute is categorically overbroad. The specific question we must answer here is whether the statutory language, "sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of,"...