United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-3735 ___________________________ Brigido Lopez-Chavez lllllllllllllllllllllPetitioner v. Merrick B. Garland, Attorney General of the United States 1 lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: October 22, 2020 Filed: March 22, 2021 ____________ Before BENTON, SHEPHERD, AND KELLY, Circuit Judges. ____________ KELLY, Circuit Judge. Brigido Lopez-Chavez, a native and citizen of Mexico, petitions this court for review of the denial of his application for cancellation of removal. Under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., the Attorney 1 Merrick B. Garland is now Attorney General of the United States and is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c). General has the discretion to cancel removal proceedings in certain circumstances. Noncitizens who have “been convicted of any aggravated felony,” however, are ineligible for cancellation of removal. Id. § 1229b(a). In May 2017, an Immigration Judge (IJ) determined that Lopez-Chavez is ineligible for cancellation of removal because his 2006 federal conviction for illegal reentry in violation of 8 U.S.C. § 1326 qualifies as an aggravated felony. The Board of Immigration Appeals (BIA) affirmed the IJ’s ruling and dismissed Lopez- Chavez’s administrative appeal the following year. The question now before the court is whether Lopez-Chavez’s 2006 conviction qualifies as an aggravated felony under the INA, thus making Lopez- Chavez statutorily ineligible for cancellation of removal. We hold that it does not. I. In 1986, after spending a couple of years in California as a seasonal agricultural worker, Lopez-Chavez moved to St. Louis, Missouri and started working at a restaurant. He became a legal permanent resident in 1990. Lopez-Chavez’s immigration-related problems started in 2003 after he was convicted in Missouri state court of possessing marijuana with intent to deliver. See Mo. Rev. Stat. § 195.211 (2016), transferred to and modified by Mo. Rev. Stat. § 579.055. In June of that year, the Department of Homeland Security (DHS), relying explicitly on his Missouri conviction, issued a Notice to Appear (NTA) alleging that Lopez-Chavez was removable because he had “been convicted of an aggravated felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). Specifically, the NTA alleged that he had been convicted of an aggravated felony as defined in § 1101(a)(43)(B) of the INA, involving “illicit trafficking in a controlled substance.” -2- Id. § 1101(a)(43)(B). As a result, on June 25, 2003, the immigration court ordered that Lopez-Chavez be removed to Mexico. Lopez-Chavez was removed in August 2003, but he reentered the country shortly thereafter. In 2006, Lopez-Chavez pleaded guilty in Missouri federal district court to illegal reentry in violation of 8 U.S.C. § 1326 and was sentenced to 38 months’ imprisonment. The 2003 removal order was reinstated, and Lopez-Chavez was once again removed to Mexico. He attempted reentry a second time in November 2009 but was detained either at the border or shortly after entering. …
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