Quiroz v. Holder

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 11-2408

BEATO MELO QUIROZ,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Stahl and Thompson, Circuit Judges.

Glenn L. Formica and Tiffany L. Sabato, on brief for
petitioner.
Karen L. Melnik, Trial Attorney, Office of Immigration
Litigation, Stuart F. Delery, Acting Assistant Attorney General,
United States Department of Justice Civil Division, and Douglas E.
Ginsburg, Acting Director, Office of Immigration Litigation, on
brief for respondent.

August 2, 2012
 STAHL, Circuit Judge. Beato Melo Quiroz, a legal

permanent resident of the United States and a citizen of the

Dominican Republic, challenges the determination by the Board of

Immigration Appeals (BIA) that he is removable because his

conviction under Conn. Gen. Stat. § 21a-277(a) constituted both an

aggravated felony and a violation of a law relating to a controlled

substance. Reaching only the aggravated felony issue, we find no

error in the BIA's determination, and we therefore dismiss Quiroz's

petition for lack of jurisdiction.

I. Facts and Background

Quiroz, a native and citizen of the Dominican Republic,

entered the United States at some point prior to December 1, 1990,

the day on which his immigration status was adjusted to legal

permanent resident. On November 26, 2008, Quiroz appeared in

Connecticut state court to plead guilty to possession of narcotics

with intent to sell under Conn. Gen. Stat. § 21a-277(a). During

the plea colloquy, the prosecutor recounted events that took place

in late November 2007:1

DEA agents working in conjunction with West
Hartford Police had set up a controlled
purchase from a confidential informant from
this defendant of an amount of heroin. That
purchase was observed under surveillance.
This defendant returned and was found to have
a white, powdery substance suspected to be

1
The transcript and judgment are both unclear as to the exact
date of the offense.

-2-
 heroin. The substance weighed out after lab
testing at 4.4 grams.

Quiroz then affirmed to the court that the prosecutor's description

was "what happened that day." The court informed Quiroz that his

guilty plea might lead to his deportation from the United States,

which Quiroz stated he understood. The court accepted his guilty

plea and ordered a suspended sentence of five years of

incarceration and three years of probation.2

On March 25, 2011, the Department of Homeland Security

issued Quiroz a Notice to Appear (NTA) for removal proceedings.

The NTA charged that the November 26, 2008 conviction rendered

Quiroz removable under the Immigration and Nationality Act (INA) on

two grounds: first, because the conviction related to a controlled

substance, see 8 U.S.C. § 1227(a)(2)(B)(i); and second, because the

conviction constituted an aggravated felony, see id.

§ 1227(a)(2)(A)(iii). Quiroz contested both of these charges.

Quiroz appeared before the immigration judge (IJ) on June

30, 2011. The IJ issued an oral decision on the same day,

determining that Quiroz had been convicted of "possession of heroin

2
After pleading guilty, Quiroz filed both a writ of coram
nobis and a motion for a new trial, alleging ineffective assistance
of counsel based on the alleged failure of his attorney to explain
the immigration consequences of his plea. See Padilla v. Kentucky,
130 S. Ct. 1473, 1478 (2010). The Connecticut state court denied
the writ and dismissed the motion. State v. Quiroz, No.
HI4HCR080622781, 2011 WL 5307377, at *1 (Conn. Super. Ct. Oct. 18,
2011). Quiroz has represented to this court that he has not filed
an appeal of that order.

-3-
with intent to sell, in violation of Connecticut law." The IJ

found, based on the evidence presented, that the government had

proven "by clear, convincing, and unequivocal evidence," that

Quiroz was removable based on both charges in the NTA and ordered

him removed to the Dominican Republic. The IJ also denied Quiroz's

request for a continuance so that he could pursue a vacatur of his

state court conviction via a combined petition for a writ of coram

nobis and motion for a new trial. Quiroz appealed to the BIA.

On November 3, 2011, the BIA issued a comprehensive

opinion affirming each of the IJ's various holdings. The BIA found

that the Connecticut conviction was categorically a "controlled

substance violation" because the Connecticut statute was no broader

than its federal corollary in terms of the substances proscribed by

each law. Next, the BIA found that while the Connecticut statute

was broader than the federal Controlled Substances Act (CSA) in

terms of conduct proscribed, Quiroz's conviction was still an

aggravated felony, because after employing the modified categorical

approach, Quiroz's crime was "comparable to the federal felony

offense of possession of heroin with intent to distribute . . . ,

which is punishable by up to 20 years in prison, and therefore

[Quiroz] was convicted of an aggravated felony drug trafficking

offense and is removable . . . ." The BIA also found that the IJ

did not err in denying the continuance, because Quiroz's pursuit in

state court constituted a collateral attack, which would not affect

-4-
the finality of his conviction for purposes of removal. Quiroz

timely appealed to this court.

II. Discussion

While we ordinarily lack jurisdiction to review a final

order of removal based on a criminal conviction covered by the INA,

we "retain jurisdiction to consider constitutional claims or

questions of law." Larngar v. Holder, 562 F.3d 71, 75 (1st Cir.

2009) (citing Conteh v. Gonzales, 461 F.3d 45, 63 (1st Cir. 2006)).

The BIA's determination as to whether a given violation of a state

criminal statute constitutes an aggravated felony is a question of

law, which we review de novo. Conteh, 461 F.3d at 52. The same

holds true for our review of the BIA's determination that a

violation of a state statute constitutes a controlled substances

violation. Urena-Ramirez v. Ashcroft, 341 F.3d 51, 53-54 (1st Cir.

2003). However, if we conclude that Quiroz has been convicted of

a covered offense, we do not have jurisdiction to review claims of

alleged factual errors. See Larngar, 562 F.3d at 75; Conteh, 461

F.3d at 63 ("[J]udicial review of the factual findings underlying

a removal order based on an aggravated felony conviction remains

foreclosed."). In fact, if we determine that Quiroz was convicted

of a covered offense, we must dismiss for lack of jurisdiction.

Aguiar v. Gonzáles, 438 F.3d 86, 88 (1st Cir. 2006).

The BIA premised Quiroz's removability on two grounds,

both reliant on his conviction for violating Conn. Gen. Stat.

-5-
§ 21a-277(a). First, it found that he was removable based on

having been convicted of a violation of a law relating to a

controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i); Urena-

Ramirez, 341 F.3d at 54. Second, the BIA determined that Quiroz

was removable because his state court conviction constituted an

"aggravated felony." See 8 U.S.C. § 1227(a)(2)(A)(iii); Conteh,

461 F.3d at 52.

"Any alien who is convicted of an aggravated felony at

any time after admission is deportable." 8 U.S.C.

§ 1227(a)(2)(A)(iii); see also Conteh, 461 F.3d at 52. The statute

lists such "aggravated felonies" at 8 U.S.C. § 1101(a)(43), which

includes "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)," id. § 1101(a)(43)(B).

Section 924(c) of Title 18 defines "drug trafficking crime" as "any

felony punishable under the Controlled Substances Act." 18 U.S.C.

§ 924(c)(2). Because Quiroz was convicted under state law, we

employ the "hypothetical federal felony" methodology, under which

we examine "whether the underlying offense would have been

punishable as a felony under federal law." Behre v. Gonzales, 464

F.3d 74, 84 (1st Cir. 2006).

We begin our examination by asking whether the statute of

conviction categorically qualifies as an aggravated felony, that

is, whether the Connecticut statute necessarily involves every

-6-
element of a federal felony covered under the INA. See Conteh, 461

F.3d at 53-54, 56. If it does, then the fact of conviction alone

is enough to satisfy the government's burden to show that the

petitioner is removable. Id. at 56. If the statute of conviction

is broader than an offense enumerated in the INA, then we employ a

modified categorical approach, under which "the government bears

the burden of proving, by clear and convincing evidence derived

solely from the record of the prior proceeding, that (i) the alien

was convicted of a crime and (ii) that crime involved every element

of one of the enumerated offenses." Id. at 55. The record of

conviction is defined by 8 U.S.C. § 1229a(c)(3)(B) and includes

"[a]n official record of judgment and conviction," id.

§ 1229a(c)(3)(B)(i), "[a]n official record of plea, verdict, and

sentence," id. § 1229a(c)(3)(B)(ii), and "[o]fficial minutes of a

court proceeding or a transcript of a court hearing in which the

court takes notice of the existence of the conviction," id.

§ 1229a(c)(3)(B)(iv), among other documents and records. See also

Conteh, 461 F.3d at 57-58.

The CSA makes it unlawful for a person "knowingly or

intentionally . . . to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or dispense, a

controlled substance." 21 U.S.C. § 841(a)(1). Meanwhile, the

Connecticut statute punishes a person who "manufactures,

distributes, sells, prescribes, dispenses, compounds, transports

-7-
with the intent to sell or dispense, possesses with the intent to

sell or dispense, offers, gives or administers to another person

any controlled substance which is a hallucinogenic substance other

than marijuana, or a narcotic substance . . . ." Conn. Gen. Stat.

§ 21a-277(a). Quiroz argues, and the BIA agreed, that the

Connecticut statute criminalizes more conduct than the federal

statute, as it covers compounding, offering, giving, or

administering a controlled substance, where the federal statute

contains no explicit equivalents. Without deciding the issue, we

assume no error in the BIA's conclusion that Conn. Gen. Stat.

§ 21a-277(a) sweeps more broadly than the CSA, and we thus proceed

to the modified categorical approach.

Based on the plea colloquy, an actual sale took place

between Quiroz and the confidential informant, and Quiroz's conduct

therefore qualifies as "distribution" under the CSA.3 None of the

activities that are explicitly criminalized in Connecticut but not

under federal law are implicated in any way. Quiroz, found to be

in possession of 4.4 grams of what the BIA supportably found to be

3
The CSA states that the term "distribute" "means to deliver
(other than by administering or dispensing) a controlled
substance." 21 U.S.C. § 802(11). The term "deliver" is defined
as "the actual, constructive, or attempted transfer of a controlled
substance or a listed chemical, whether or not there exists an
agency relationship." Id. § 802(8). There can be no dispute that
participation in an actual sale constitutes distribution under the
CSA. See, e.g., United States v. Castro, 279 F.3d 30, 34 (1st Cir.
2002).

-8-
heroin,4 a Schedule I controlled substance, see 21 U.S.C. § 812,

Schedule I(b)(10), would have been eligible under the CSA for a

sentence of up to twenty years, see id. § 841(b)(1)(C). His

conviction therefore would have constituted a felony.5

Consequently, Quiroz is removable based on his conviction, which is

comparable to the federal drug trafficking felony laid out in 21

U.S.C. § 841(a)(1). Because Quiroz is removable as a person

convicted of an aggravated felony, we are compelled to dismiss for

lack of jurisdiction, see Aguiar, 438 F.3d at 88, and we therefore

need not reach the BIA's determination regarding Quiroz's

4
Quiroz challenges the BIA's finding that the substance that
he possessed when arrested was in fact heroin. Though the
government's burden to prove that Quiroz was convicted of an
aggravated felony is by clear and convincing evidence, see Conteh,
461 F.3d at 55, our review of the facts found by the BIA is, as
always, for substantial evidence, see 8 U.S.C. § 1252(b)(4)(B)
("[T]he administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary."); Mayorga-Vidal v. Holder, 675 F.3d 9, 13 (1st Cir.
2012). There is some dispute among the circuits as to whether a
more demanding version of the substantial evidence standard applies
when combined with a clear-and-convincing burden of proof. Compare
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc)
(concluding that no heightened standard is required), with Francis
v. Gonzales, 442 F.3d 131, 138-39 (2d Cir. 2006) (concluding, in
agreement with the Sixth and Ninth Circuits, that the task of a
court of appeals in this context is to determine whether "any
rational trier of fact would be compelled to conclude that the
proof did not rise to the level of clear and convincing evidence").
We need not decide on which side of the split we fall, because
here, under either version of the standard, we think the BIA's
explicit finding that "the narcotic substance which the respondent
possessed was in fact heroin" was amply supported by the plea
colloquy.
5
Federal convictions that are punishable by more than one
year are classified as felonies. See 18 U.S.C. § 3559(a).

-9-
removability for a violation of a law relating to a controlled

substance.

There is a final wrinkle to smooth out: Quiroz also

appeals the BIA's denial of his motion to continue his removal

proceedings so that he could pursue the vacatur of his state

conviction, which provides the basis for his removability. In

Connecticut state court, Quiroz filed a combined petition for a

writ of coram nobis and motion for a new trial, based on a claim

that his attorney did not adequately warn him of the immigration

consequences of his guilty plea. See Padilla v. Kentucky, 130 S.

Ct. 1473 (2010) (holding that an attorney's failure to advise a

client of the immigration consequences of a guilty plea can

constitute a violation of the Sixth Amendment right to counsel).

The IJ denied the motion to continue, concluding that Quiroz's

attempts in state court constituted collateral attacks that would

not affect the conviction for purposes of removability. The BIA

affirmed on the same grounds.

Shortly before the BIA issued its decision, the

Connecticut Superior Court issued an order denying the writ of

coram nobis and dismissing the motion for a new trial. State v.

Quiroz, No. HI4HCR080622781, 2011 WL 5307377, at *1 (Conn. Super.

Ct. Oct. 18, 2011). On July 19, 2012, Quiroz represented to this

court that he was not pursuing an appeal of that order. The

government here argues that this issue is moot. We agree that we

-10-
do not have jurisdiction to address this issue, as we no longer

have the ability to "grant any effectual relief whatever," since

Quiroz has no further redress in state court that a continuance

would allow him to pursue. N.H. Motor Transp. Ass'n v. Rowe, 448

F.3d 66, 73 (1st Cir. 2006) (internal quotation marks omitted).

III. Conclusion

We dismiss the petition for review for lack of

jurisdiction.

-11-