Petition for Review of a Decision of the Board of Immigration
Appeals Agency No. A075-853-600
JORDAN, HULL and GILMAN, [*] Circuit Judges.
Choizilme, a native and citizen of Haiti, petitions for
review of the Board of Immigration Appeals'
("BIA") decision affirming the Immigration
Judge's ("IJ") order of removal based on his
five criminal convictions for drug offenses under Florida
Statute § 893.13. After review and with the benefit of
oral argument, we conclude that the BIA did not err in
concluding that Choizilme was ineligible for cancellation of
removal because his Florida conviction for sale of cocaine,
in violation of Fla. Stat. § 893.13(1)(a)(1),
constituted "illicit trafficking" within the
meaning of 8 U.S.C. § 1101(a)(43)(B). Accordingly, we
deny the petition.
Immigration and Nationality Act of 1965 ("INA")
makes removable "[a]ny alien who is convicted of an
aggravated felony." 8 U.S.C. § 1227(a)(2)(A)(iii).
The INA further provides that an alien who has been convicted
of an aggravated felony is ineligible for discretionary
relief in the form of cancellation of removal. Id.
§ 1229b(a). All parties agree that Choizilme is
removable and not eligible for cancellation of removal if he
was convicted of an "aggravated felony." The
dispute in this case involves the definition of
"aggravated felony" in 8 U.S.C. §
1101(a)(43)(B), and whether Choizilme's sale-of-cocaine
conviction under Fla. Stat. § 893.13(1)(a)(1) falls
within that definition.
the many crimes that constitutes an "aggravated
felony" under the INA is "illicit trafficking in a
controlled substance (as defined in section 802 of Title 21),
including a drug-trafficking crime (as defined in section
924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B).
this Court has addressed the two portions of this definition:
(1) "illicit trafficking in a controlled
substance"; and (2) a "drug trafficking crime"
as defined in 18 U.S.C. § 924(c). First, this Court held
that a conviction for possession of marijuana with intent to
sell under Fla. Stat. § 893.13(1)(a)(2) is not
categorically a "drug trafficking crime" as defined
in 18 U.S.C. § 924(c), and therefore cannot qualify as
an aggravated felony under that second portion of 8 U.S.C.
§ 1101(a)(43)(B). Donawa v. U.S. Att'y
Gen., 735 F.3d 1275, 1283 (11th Cir. 2013). The
Donawa Court left open the possibility that a
violation of the same Florida statute might nevertheless
qualify as an aggravated felony under the "illicit
trafficking in a controlled substance" portion of §
1101(a)(43)(B). Id. at 1283.
in Spaho v. U.S. Att'y Gen., 837 F.3d 1172,
1176-79 (11th Cir. 2016), this Court held that a conviction
for sale of a controlled substance under Fla. Stat. §
893.13(1)(a)(1) qualified as "illicit trafficking in a
controlled substance" and, therefore, constituted an
aggravated felony under that first portion of §
1101(a)(43)(B). See also Gordon v. U.S. Att'y
Gen., 861 F.3d 1314, 1318-19 (11th Cir. 2017) (following
Spaho). That is the same statute under which
Choizilme was convicted.
this background, we review the procedural history of
Choizilme's immigration proceedings and then address
Choizilme's arguments on appeal.
IMMIGRATION PROCEEDINGS 2012-2017
December 1998, Choizilme was admitted to the United States as
a legal permanent resident. In 2005, Choizilme was convicted
in Florida state court of, inter alia, (1)
possession of cocaine, (2) possession of a Schedule IV
substance, (3) possession of a Schedule II substance, and (4)
possession of hydrocodone, all in violation of Fla. Stat.
§ 893.13(6)(a). In 2006, Choizilme was convicted in
Florida state court of selling cocaine, in violation of Fla.
Stat. § 893.13(1)(a)(1).
Initial Hearings in August and December 2012
March 2012, the Department of Homeland Security
("DHS") issued a Notice to Appear, charging
Choizilme with removability under 8 U.S.C. §
1227(a)(2)(B)(i) for having the above-listed five Florida
convictions for controlled-substance offenses. In support of
the Notice to Appear, DHS submitted records of
Choizilme's convictions. At Choizilme's first
master-calendar hearing on August 14, 2012, Choizilme
appeared pro se. The IJ informed Choizilme that he
had a right to be represented by counsel, and granted
Choizilme a continuance until December 4, 2012 to obtain
second master-calendar hearing on December 4, 2012,
Choizilme, through counsel, requested a continuance because
he was seeking to vacate his Florida convictions in state
court. The government did not object, and the IJ granted a
six-month continuance until June 4, 2013.
June 4, 2013 Hearing
June 4, 2013 hearing, Choizilme, again through counsel,
sought another continuance of his immigration proceedings
"to figure out whether or not he [was] eligible for
cancellation [of removal]." Choizilme explained that he
had retained a criminal attorney who was "working on a
motion to vacate" his 2006 sale-of-cocaine conviction
because that drug conviction would prevent him from being
eligible for cancellation of removal. Choizilme admitted he
had not filed a motion to vacate in state court yet because
he was unable to afford a criminal attorney sooner.
government opposed Choizilme's motion for a continuance.
The IJ agreed that a continuance was not warranted at that
point because it was "still kind of tenuous on [his]
post-conviction relief." Accordingly, the IJ suggested
that Choizilme plead to the allegations in the Notice to
Appear to "advance the case a little bit."
Choizilme, through counsel, admitted the allegations and
conceded the charge of removability. The IJ sustained the
charge and designated Haiti as Choizilme's country of
removal. The IJ further indicated that Choizilme was eligible
for deferral of removal under the United Nations Convention
Against Torture ("CAT"), and gave him 60 days to
file an application for deferral.
scheduled a merits hearing for April 25, 2014. This, in
effect, gave Choizilme 10 more months to file a motion to
vacate his Florida convictions in state court (i.e., a
10-month continuance). The IJ stated that, "by that time
if he's eligible for cancellation, you can file that
application and we'll convert that into a . . .
Merits Hearing on April 25, 2014
months later, at the April 25, 2014 merits hearing,
Choizilme, through counsel, indicated that he still had not
filed a petition in state court to vacate his 2006 sale of
cocaine conviction and that "without the vacatur he
ha[d] no relief available." Choizilme, again through
counsel, stated that "if the [IJ was] unable to grant
[a] continuance, " the IJ should proceed by issuing a
final order of removal.
extent that Choizilme was requesting another continuance to
"wait to see if his conviction is vacated, " the
government objected. The IJ agreed that another continuance
was not appropriate. As of this April 25, 2014 hearing,
Choizilme already had had two continuances to seek relief in
state court, totaling 16 months (December 4, 2012 to April
25, 2014). The IJ stated, however, that in the event that
Choizilme was successful in seeking post-conviction relief in
state court, he could file a motion to reopen his immigration
proceedings to determine his eligibility for
then issued an oral decision ordering Choizilme's removal
to Haiti. The IJ noted that Choizilme had admitted the
allegations in the Notice to Appear at the prior June 4, 2013
hearing and was found subject to removal as charged. The IJ
observed that Choizilme previously was granted a continuance
(16 months) for the purpose of seeking post-conviction
relief, but had yet to file for such relief in state court.
The IJ reiterated his determination that there was "not
sufficient good cause" to grant Choizilme a further
continuance to await the outcome of a post-conviction motion.
Indeed, a post-conviction motion still had not yet been
Appeal to the BIA
27, 2014, Choizilme, through counsel, appealed the IJ's
order of removal to the BIA. In his notice of appeal,
Choizilme argued that the IJ erred in ordering his removal
without advising him of his potential eligibility for
cancellation of removal. Choizilme contended that he was
eligible for cancellation of removal because, inter
alia, his 2006 Florida conviction for sale of cocaine
was not an aggravated felony under the INA because it did not
qualify as either a "drug trafficking crime" or
"illicit trafficking." In support of his argument,
Choizilme cited this Court's decision in Donawa,
which held that a conviction under Fla. Stat. §
893.13(1)(a)(2) was not a "drug trafficking crime"
but left open the "illicit trafficking" issue.
See Donawa, 735 F.3d at 1283 (declining to affirm on
the ground that Donawa's marijuana conviction was an
illicit trafficking aggravated felony because the BIA never
considered that argument).
October 24, 2014 brief before the BIA, Choizilme argued, as
an initial matter, that the BIA should remand his case to the
IJ because the IJ's oral decision failed to provide a
meaningful explanation as to why Choizilme was ineligible for
cancellation of removal.
then asserted that he in fact was eligible for cancellation
of removal because he was not convicted of an aggravated
felony. First, Choizilme explained that, in Donawa,
this Court had held that convictions under Fla. Stat.
893.13(1)(a)(2) do not qualify as "drug trafficking
crimes" under the INA because the Florida statute,
unlike its federal analogue under § 924(c), does not
require that the defendant know the illicit nature of the
substance in his possession.
acknowledged that the BIA's decision in Matter of
L-G-H-, 26 I&N Dec. 365 (BIA 2014), held that a
violation of Fla. Stat. § 893.13(1)(a)(1) qualified as
an aggravated felony under the broader "illicit
trafficking" clause of the INA. But ...