Case: 15-13845 Date Filed: 03/30/2018 Page: 1 of 34 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-13845 ________________________ Agency No. A075-853-600 WALING CHOIZILME, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (March 30, 2018) Before JORDAN, HULL and GILMAN, * Circuit Judges. HULL, Circuit Judge: * Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by designation. Case: 15-13845 Date Filed: 03/30/2018 Page: 2 of 34 Waling Choizilme, a native and citizen of Haiti, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order of removal based on his five criminal convictions for drug offenses under Florida Statute § 893.13. After review and with the benefit of oral argument, we conclude that the BIA did not err in concluding that Choizilme was ineligible for cancellation of removal because his Florida conviction for sale of cocaine, in violation of Fla. Stat. § 893.13(1)(a)(1), constituted “illicit trafficking” within the meaning of 8 U.S.C. § 1101(a)(43)(B). Accordingly, we deny the petition. I. LEGAL BACKGROUND The Immigration and Nationality Act of 1965 (“INA”) makes removable “[a]ny alien who is convicted of an aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA further provides that an alien who has been convicted of an aggravated felony is ineligible for discretionary relief in the form of cancellation of removal. Id. § 1229b(a). All parties agree that Choizilme is removable and not eligible for cancellation of removal if he was convicted of an “aggravated felony.” The dispute in this case involves the definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(B), and whether Choizilme’s sale-of-cocaine conviction under Fla. Stat. § 893.13(1)(a)(1) falls within that definition. 2 Case: 15-13845 Date Filed: 03/30/2018 Page: 3 of 34 One of the many crimes that constitutes an “aggravated felony” under the INA is “illicit trafficking in a controlled substance (as defined in section 802 of Title 21),1 including a drug-trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). Recently, this Court has addressed the two portions of this definition: (1) “illicit trafficking in a controlled substance”; and (2) a “drug trafficking crime” as defined in 18 U.S.C. § 924(c). First, this Court held that a conviction for possession of marijuana with intent to sell under Fla. Stat. § 893.13(1)(a)(2) is not categorically a “drug trafficking crime” as defined in 18 U.S.C. § 924(c), and therefore cannot qualify as an aggravated felony under that second portion of 8 U.S.C. § 1101(a)(43)(B). Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1283 (11th Cir. 2013). The Donawa Court left open the possibility that a violation of the same Florida statute might nevertheless qualify as an aggravated felony under the “illicit trafficking in a controlled substance” portion of § 1101(a)(43)(B). Id. at 1283. Subsequently, in Spaho v. U.S. Att’y Gen., 837 F.3d 1172, 1176-79 (11th Cir. 2016), this Court held that a ...
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