Case: 17-15179 Date Filed: 11/21/2018 Page: 1 of 19 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-15179 ________________________ Agency No. A072-836-227 SHARIFF DAVID BULA LOPEZ, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (November 21, 2018) Before ED CARNES, Chief Judge, and ROSENBAUM and HULL, Circuit Judges. 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 Case: 17-15179 Date Filed: 11/21/2018 Page: 2 of 19 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”). 1 Flunitrazepam, also known as Rohypnol, is a sedative commonly used as a date rape drug. 2 Case: 17-15179 Date Filed: 11/21/2018 Page: 3 of 19 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 § ...
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