PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-1292 GUSTAVO CUCALON, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent. No. 18-2206 GUSTAVO CUCALON, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent. On Petitions for Review of an Order of the Board of Immigration Appeals. Argued: October 30, 2019 Decided: May 7, 2020 Before GREGORY, Chief Judge, and KEENAN and RICHARDSON, Circuit Judges. Petitions for review denied by published opinion. Judge Keenan wrote the opinion, in which Chief Judge Gregory and Judge Richardson concurred. ARGUED: Benjamin James Osorio, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Melissa K. Lott, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Mark Stevens, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Keith I. McManus, Assistant Director, Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. 2 BARBARA MILANO KEENAN, Circuit Judge: Gustavo Cucalon, a native and citizen of Nicaragua, petitions for review of a final order of removal issued by the Board of Immigration Appeals (BIA). The BIA concluded that Cucalon’s conviction in 2006 for distribution of cocaine as an accommodation, in violation of Virginia Code § 18.2-248(D), rendered him removable as an alien convicted of an “aggravated felony,” and as an alien convicted of a crime “relating to a controlled substance.” See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). In Cucalon’s view, because Virginia prohibits the distribution of more substances than those prohibited under federal law, a conviction under Virginia Code § 18.2-248 does not categorically qualify as an “aggravated felony” or as a crime “relating to a controlled substance” under the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). Upon our review, we conclude that Virginia Code § 18.2-248 is divisible by prohibited substance. Applying the modified categorical approach, we hold that distribution of cocaine under Virginia Code § 18.2-248, including distribution of that substance as an accommodation under Virginia Code § 18.2-248(D), satisfies the federal definitions of an “aggravated felony” and of a crime “relating to a controlled substance.” We also conclude that the BIA did not abuse its discretion in denying Cucalon’s motion to reconsider. We therefore deny Cucalon’s petitions for review. I. Cucalon has been a lawful permanent resident of the United States since 1987. He was convicted in 2006 of distribution of cocaine as an accommodation, in violation of 3 Virginia Code § 18.2-248(D). In 2017, the Department of Homeland Security charged Cucalon with removability on two grounds: (1) as an alien convicted of an aggravated felony, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii); and (2) as an alien convicted of a crime relating to a controlled substance, pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). Cucalon moved to terminate his removal proceedings, asserting that his conviction under Virginia Code § 18.2-248 did not qualify as an aggravated felony or as a crime relating to a controlled substance. The immigration judge (IJ) applied the modified categorical approach set forth in ...
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