Case: 17-11002 Date Filed: 11/15/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11002
________________________
Agency No. A041-455-548
DEON JONES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 15, 2018)
Before NEWSOM and HULL, Circuit Judges, and ROYAL, ∗ District Judge.
HULL, Circuit Judge:
∗Honorable C. Ashley Royal, United States District Judge for the Middle District of
Georgia, sitting by designation.
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Deon Angella Jones, a native and citizen of Jamaica, petitions for review of
the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) order of removal. In 1988, Jones was admitted to the United States
as a lawful permanent resident.
In 2014, the Department of Homeland Security (“DHS”) issued Jones a
Notice to Appear, charging her as removable (1) under Immigration and
Nationality Act (“INA”) § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), for
having been convicted of an aggravated felony as defined in INA § 101(a)(43)(B),
8 U.S.C. § 1101(a)(43)(B); and (2) under INA § 237(a)(2)(B)(i), 8 U.S.C.
§ 1227(a)(2)(B)(i), for having been convicted of a controlled substance offense.
Jones did not contest her removability for having been convicted of a
controlled substance offense. Further, Jones has since been removed back to
Jamaica and remains there now. However, Jones did file an application for
cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a), which
provides that the Attorney General may grant discretionary relief from removal for
qualifying aliens who have not been convicted of an aggravated felony. INA
§ 240A(a)(3), 8 U.S.C. § 1229b(a)(3). Jones contended her convictions did not
qualify as aggravated felonies as defined in section 101(a)(43)(B) of the INA. In
2016, the IJ issued a written decision denying Jones’s application for cancellation
of removal.
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The BIA affirmed and dismissed Jones’s appeal. The BIA concluded that
Jones was not eligible for cancellation of removal. Jones petitions for review. 1
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), including a drug trafficking crime (as defined in section 924(c) of Title
18).” 8 U.S.C. § 1101(a)(43)(B). One problem for the government here is that the
government has not argued, either before this Court or even the BIA, that Jones’s
conviction qualifies under the “illicit trafficking” prong of the INA’s aggravated
felony definition. The government therefore has waived any argument about the
“illicit trafficking” prong. This case at best involves only the second portion of the
definition.
As to the second portion of the definition, a “drug trafficking crime” under
§ 1101(a)(43)(B) includes “any felony punishable under the Controlled Substances
Act [(“CSA”)].” 18 U.S.C. § 924(c)(2); 8 U.S.C. § 1101(a)(43)(B). Thus, for a
state offense to qualify as a drug trafficking crime under § 1101(a)(43)(B), the
state offense must punish conduct that would be punishable as a felony under the
federal CSA. See Lopez v. Gonzales, 549 U.S. 47, 60, 127 S. Ct. 625, 633 (2006).
The corresponding federal offense to which we must look is 21 U.S.C. § 841(a)(1),
which makes it a felony “for any person knowingly or intentionally” to
1
We review de novo whether a conviction qualifies as an aggravated felony under the
INA. Spaho v. U.S. Att’y Gen., 837 F.3d 1172, 1176 (11th Cir. 2016).
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“manufacture, distribute, or dispense, or possess with intent to . . . distribute . . . a
controlled substance.” 21 U.S.C. § 841(a)(1).
Based on the particular record and argument before us, we conclude that the
Respondent failed to carry its burden to show Jones was convicted of an
“aggravated felony” under the second prong. We grant Jones’s petition for review,
vacate the BIA’s decision, and remand for further proceedings. On remand the
Attorney General should exercise his discretion and decide whether or not to
cancel Jones’s removal. See 8 U.S.C. § 1229b(a).
PETITION GRANTED.
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