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Choizilme v. U.S. Attorney General

United States Court of Appeals, Eleventh Circuit

March 30, 2018

WALING CHOIZILME, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent.

          Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A075-853-600

          Before JORDAN, HULL and GILMAN, [*] Circuit Judges.

          HULL, Circuit Judge:

          Waling 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.

         I. LEGAL BACKGROUND

         The 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.

          One of 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), [1] including a drug-trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B).

         Recently, 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.

         Subsequently, 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.

         With this background, we review the procedural history of Choizilme's immigration proceedings and then address Choizilme's arguments on appeal.

         II. IMMIGRATION PROCEEDINGS 2012-2017

         In December 1998, Choizilme was admitted to the United States as a legal permanent resident.[2] 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).

         A. Initial Hearings in August and December 2012

         In 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 counsel.

         At his 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.

         B. June 4, 2013 Hearing

         At the 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.

         The 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.[3]

         The IJ 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 . . . cancellation hearing."

         C. Merits Hearing on April 25, 2014

         Ten 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.

         To the 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 relief.[4]

         The IJ 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 filed.

         D. Appeal to the BIA

         On May 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).

         In his 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.

         Choizilme 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.

         Choizilme 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. ยง 893.13(1)(a)(1) qualified as an aggravated felony under the broader "illicit trafficking" clause of the INA. But ...


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