4th Cir.: State drug convictions defeated court’s jurisdiction

An immigrant’s conviction for unlawful possession of marijuana with intent to manufacture, deliver, or sell constitutes a conviction of both an aggravated felony and a crime involving moral turpitude. Therefore, the court lacks jurisdiction to review the Board’s rulings on his removal order. The petitioner also was not eligible for cancellation of removal.

Background

Petitioner Rene Guevara-Solorzano seeks review of two final orders of the Board of Immigration Appeals: First, he challenges the Board’s determination that he is subject to removal as an alien convicted of two crimes involving moral turpitude not arising out of a single scheme of misconduct, and that he is ineligible for a waiver of removal. Second, he challenges the Board’s determination that he is subject to removal as an alien convicted of an aggravated felony relating to the illicit trafficking in a controlled substance and that’s he’s thus ineligible for cancellation of removal.

Guevara-Solorzano, a Mexican citizen, first came to the U.S. in 1984 and became a lawful permanent resident in 1990. In 1995, he pleaded guilty to violating Tennessee Code § 39-17-417, which prohibits the unlawful possession of marijuana with intent to manufacture, deliver, or sell. In 2000, he pleaded guilty to felony breaking and entering and felony larceny in Guilford County, North Carolina.

In 2010, the Department of Homeland Security initiated removal proceedings. An immigration judge found that Guevara-Solorzano’s convictions were for offenses qualifying as crimes of moral turpitude that didn’t arise out of a single scheme of criminal misconduct. The IJ reasoned that because this ground for removability didn’t arise until 2000, relief under former Immigration & Nationality Act § 212(c) was no longer available at the time Guevara-Solorzano became removable. Therefore, Guevara-Solorzano was ineligible for § 212(c) relief with respect to the crime involving moral turpitude ground of removability.

In 2016, the Board dismissed Guevara-Solorzano’s appeal of the IJ’s decision, and he appealed to this court.

Jurisdiction

This court lacks jurisdiction to review Guevara-Solorzano’s petition under 8 U.S.C. § 1252, which strips courts of jurisdiction to review any final order of removal against an alien who is removable by reason of having committed an aggravated felony, a controlled substance offense, or, in some situations, two more crimes of moral turpitude.

If there is a realistic probability that the relevant Tennessee statute taken as a whole could be applied to conduct not punishable as a felony under the Controlled Substances Act, Guevara-Solorzano’s conviction under that statute doesn’t categorically qualify as a conviction of an aggravated felony unless the statute is divisible. The government concedes that a conviction under the Tennessee law doesn’t qualify as an aggravated felony. But the Tennessee statute is divisible, because each subsection provides for a different punishment depending on the quantity and type of drug involved.

Guevara-Solorzano’s indictment for the 1995 conviction specifically spells out that he was charged in Count 1 with “possess[ing] with intent to sell a controlled substance, to wit: MARIJUANA, in an amount in excess of four thousand five hundred thirty-six (4536) grams,” and in Count 2 with “possess[ing] with intent to deliver a controlled substance, to wit: MARIJUANA, in an amount in excess of four thousand five hundred thirty-six (4536) grams.” The indictment’s allegations of the type and quantity of drugs indicate that the statutory subsections define different elements. This conclusion is reinforced by the state-court judgment specifying that Guevara-Solorzano’s conviction was for a Class D Felony and by Tennessee case law, which indicates that the type and quantity of drugs are elements of the offense that must be proven beyond a reasonable doubt.

Based on Moncrieffe v. Holder, 569 U.S. 184 (2013), possession with intent to manufacture, deliver, or sell between 10 and 70 pounds is categorically an aggravated felony because it involves only conduct that would be criminalized as a felony under the Controlled Substances Act. Accordingly, Guevara-Solorzano’s 1995 marijuana conviction was for the aggravated felony of illicit trafficking in a controlled substance.

Because the Board correctly determined that Guevara-Solorzano was convicted in 1995 of an aggravated felony, this court lacks jurisdiction to review his challenge to that determination and the Board’s decision that, as a result, Guevara-Solorzano is removable and ineligible for cancellation of removal.

In addition, the statutory provision under which Guevara-Solorzano was convicted reaches only trafficking in quantities of marijuana in excess of 10 pounds – well within the heartland of the illicit drug trafficking described in In re Gonzalez Romo, 26 I. & N. Dec. 743 (BIA 2016) – and therefore qualifies as reprehensible. As such, the Board properly determined that Guevara-Solorzano’s 1995 conviction constitutes a conviction of a crime involving moral turpitude.

Accordingly, Guevara-Solorzano is removable as an alien convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. This court thus lacks jurisdiction to review his petition to the extent that it challenges the Board’s determination that his two convictions for crimes involving moral turpitude render him removable.

Relief from removal

The effect of a § 212(c) waiver is to grant discretionary relief from removal for an alien who meets the residency requirement but who has been found deportable for any of a variety of reasons, including the grounds charged for Guevara-Solorzano’s removal. The repeal of § 212(c) in 1996 was not retroactive.

Because the Board’s interpretation of the effect of § 212(c) relief is a reasonable interpretation of the statutory language, Chevron deference applies. Therefore, because the crimes eligible for § 212(c) relief “do not disappear from the alien’s record,” Guevara-Solorzano’s 1995 marijuana conviction continued to count as a conviction of a crime involving moral turpitude. When he was convicted in 2000 in North Carolina of another crime involving moral turpitude, he became deportable, and by then § 212(c) relief no longer applied. Because Guevara-Solorzano did not become deportable on the basis of having committed two or more crimes involving moral turpitude until after 1996, his right to § 212(c) relief with respect to that ground of deportability had not vested at the time § 212(c) was repealed.

Accordingly, the Board correctly determined that Guevara-Solorzano is ineligible for relief under § 212(c) because one of the convictions for a crime involving moral turpitude that renders him removable occurred after § 212(c)’s repeal in 1996.

Petitions dismissed in part, denied in part.

Guevara-Solorzano v. Sessions, Case No. 16-2434, May 24, 2018. 4th Cir. (Brinkema), from BIA. Jeremy Layne McKinney for Petitioner; Andrew Nathan O’Malley, for Respondent. VLW No. 018-2-099, 22 pp.