Natalia Lorena Citron v. U.S. Attorney General

Case: 15-12344 Date Filed: 02/20/2018 Page: 1 of 17 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ Nos. 15-12344 & 15-14352 ________________________ Agency No. A096-761-835 NATALIA LORENA CINTRON, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petitions for Review of Decisions of the Board of Immigration Appeals ________________________ (February 20, 2018) Before MARCUS, JILL PRYOR and SILER, * Circuit Judges. JILL PRYOR, Circuit Judge: * Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation. Case: 15-12344 Date Filed: 02/20/2018 Page: 2 of 17 Natalia Cintron petitions for review of a Board of Immigration Appeals (“BIA”) decision denying her application for cancellation of removal from the United States and ordering that removal. The BIA concluded that Cintron failed to prove that she had not been convicted of an aggravated felony, which rendered her ineligible for cancellation of removal. In short, the BIA determined that the Florida narcotics statute under which Cintron had been convicted was divisible into separate offenses and, because the record of her conviction was inconclusive regarding which offense she had committed, she could not demonstrate her eligibility for cancellation of removal. We disagree with the BIA’s conclusion. Because the Florida statute under which Cintron was convicted was indivisible and categorically overbroad, a conviction under that statute cannot qualify as an aggravated felony. Cintron’s narcotics conviction therefore does not disqualify her from cancellation of removal. We grant her petition and remand to the BIA to reconsider her application. 1 I. BACKGROUND Cintron is a native and citizen of Argentina and a lawful permanent resident of the United States. In 2009, she pled guilty to violating Florida Statutes 1 Cintron filed a motion for reconsideration with the BIA, which it denied also. She petitions this Court to review that denial; however, in light of our decision to grant her initial petition, we dismiss Cintron’s second petition as moot. 2 Case: 15-12344 Date Filed: 02/20/2018 Page: 3 of 17 § 893.135(1)(c)1. (2007), which criminalized various narcotics offenses. The Department of Homeland Security initiated removal proceedings against Cintron, and an immigration judge ordered her removal to Argentina. She appealed this decision to the BIA, which overturned it because the record of her narcotics conviction was inconclusive as to the elements of her crime of conviction. The BIA remanded the case to the immigration judge, and Cintron applied for cancellation of removal. The immigration judge determined that because the record of her conviction remained inconclusive, she failed to prove her crime of conviction was not an “aggravated felony” that would render her ineligible for cancellation of removal under the Immigration and Nationality Act (“INA”) § 240A(a)(3). The immigration judge once again ordered her removal. Cintron appealed to BIA, which agreed with the immigration judge that she was ineligible for cancellation of removal because of the Florida conviction. The BIA reached two conclusions about Cintron’s Florida conviction. First, it determined that although a § 893.135(1)(c)1. offense was not categorically an aggravated felony, the ...

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