FERREIRA

Cite as 

 (BIA 2014)                                 Interim Decision #3815




         Matter of Gustavo Ribeiro FERREIRA, Respondent
                            Decided September 22, 2014
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


  Where a State statute on its face covers a controlled substance not included in the
Federal controlled substances schedules, there must be a realistic probability that the
State would prosecute conduct under the statute that falls outside the generic definition of
the removable offense to defeat a charge of removability under the categorical approach.
FOR RESPONDENT: Mary Foden, Esquire, Hartford, Connecticut
FOR THE DEPARTMENT OF HOMELAND SECURITY: Amit Patel, Assistant Chief
Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.

PAULEY, Board Member:


    In a decision dated August 21, 2013, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration
and Nationality Act, 

(a)(2)(A)(iii) (2012), as an alien
convicted of an aggravated felony involving illicit trafficking in a
controlled substance any time after admission under section 101(a)(43)(B)
of the Act, 

(a)(43)(B) (2012). The Immigration Judge also
found the respondent removable pursuant to section 237(a)(2)(B)(i) of the
Act, as an alien convicted of a controlled substance violation any time after
admission. The respondent has appealed from that decision. The record
will be remanded to the Immigration Judge for further proceedings.

              I. FACTUAL AND PROCEDURAL HISTORY

   The respondent is a native and citizen of Brazil who was admitted to the
United States as a lawful permanent resident on October 20, 2004. On
March 11, 2010, he pled guilty to the “sale of certain illegal drugs” in
violation of section 21a-277(a) of the Connecticut General Statutes
Annotated. The criminal court sentenced the respondent to 5 years of
confinement, suspended the execution of the sentence, and granted him
5 years of probation. The respondent also received a fine of $7,500. Based
on this conviction, the Department of Homeland Security (“DHS”) charged

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the respondent with removability under sections 237(a)(2)(A)(iii) and (B)(i)
of the Act.
    Both of these removability provisions incorporate the definition of
a “controlled substance” in section 102 of the Controlled Substances Act
(“CSA”), which is codified as 

 (2012). Under the CSA,
a controlled substance is defined as “a drug or other substance, or
immediate precursor, included in schedule I, II, III, IV, or V of part B of
this subchapter.” 

(6).
    With regard to section 237(a)(2)(A)(iii) of the Act, the term “aggravated
felony” in section 101(a)(43)(B) encompasses “illicit trafficking in a
controlled substance (as defined in section 102 of the Controlled
Substances Act), including a drug trafficking crime (as defined in section
924(c) of title 18, United States Code).” (Emphasis added.) An offense is
a “drug trafficking crime” under 

(c)(2) (2012) if it is
punishable as a “felony under the Controlled Substances Act, (21 U.S.C.
801 et seq.).” See Lopez v. Gonzales, 

, 56 n.7, 60 (2006)
(holding that a State drug offense “constitutes a ‘felony punishable under
the Controlled Substances Act,’” and by extension an aggravated felony,
“only if it proscribes conduct punishable as a felony under that federal
law,” that is as an offense that carries a term of imprisonment exceeding
1 year).
    Section 237(a)(2)(B)(i) of the Act similarly provides that

     [a]ny alien who at any time after admission has been convicted of a violation of (or
     a conspiracy or attempt to violate) any law or regulation of a State, the
     United States, or a foreign country relating to a controlled substance (as defined in
     section 102 of the Controlled Substances Act (21 U.S.C. 802)), other than a single
     offense involving possession for one’s own use of thirty grams or less of marijuana,
     is deportable.

(Emphasis added.)
    In support of the charges of removability, the DHS presented a copy of
the respondent’s criminal judgment, which states that he pled guilty to “sale
of certain illegal drugs.” The DHS also submitted a plea colloquy
providing that the respondent was pleading guilty to the “sale of narcotics.”
Neither document identifies the specific narcotics by name.
    The respondent filed a motion to terminate, arguing that the DHS had
not established removability pursuant to the categorical approach. In this
regard, the respondent observed that when he pled guilty in 2010,
Connecticut’s drug schedules regulated two obscure opiate derivatives
(benzylfentanyl and thenylfentanyl) that have not been included in the
Federal controlled substance schedules since 1986. He cited three cases
that compared the Federal and Connecticut controlled substances schedules

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and concluded that the State schedules were broader than the Federal
schedules insofar as the State schedules listed these two opiate derivatives
and the CSA did not. United States v. Lopez, 

, 221−22
(D. Conn. 2008); United States v. Madera, 

, 154−55
(D. Conn. 2007); United States v. Cohens, No. 3:07-cr-195 (EBB), 

 at *4–5 (D. Conn. Aug. 13, 2008); see also McCoy v. United
States, 

, 187−88 (2d Cir. 2013) (acknowledging the holdings
in these three district court cases as well as the “obscure” nature of
benzylfentanyl and thenylfentanyl).1
    Since the Connecticut schedules were broader than the Federal
schedules at the time of his conviction, the respondent contended that
section 21a-277(a) did not “necessarily” proscribe conduct that was an
offense under the CSA, as required by Moncrieffe v. Holder, 

, 1684–85 (2013). Moreover, he asserted that the record of conviction
presented by the DHS did not provide a factual basis regarding the
substance involved. Therefore, the respondent argued that the DHS did not
satisfy its burden of proving removability by clear and convincing evidence
pursuant to section 240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A)
(2012), and 

(a) (2013).
    In his decision, the Immigration Judge did not apply the categorical
approach, instead proceeding directly to the modified categorical approach.
Relying on Gousse v. Ashcroft, 

 (2d Cir. 2003), he concluded
that the DHS met its burden of proof through submission of the plea
colloquy, which establishes that the respondent’s offense involved a
narcotic substance. On appeal, the respondent argues that reversal and
termination are required under Moncrieffe.2 The DHS has filed a motion
for summary affirmance.

                                   II. ANALYSIS

   This case presents an issue that often confronts Immigration Judges
and the Board in determining whether an alien is removable based on

1
    Benzylfentanyl and thenylfentanyl were listed in Schedule I of the Controlled
Substances Act on a temporary basis and their status expired on November 29, 1986, by
operation of law. Schedules of Controlled Substances, 

, 43,701
(Oct. 29, 1985); see also Dangerous Drug Diversion Control Act of 1984, 

, 

, 2072 (codified at 

(h)(2) (Supp. II 1984)).
2
    The respondent has not disputed the Immigration Judge’s additional holding that even
if his conviction involved delivery of a controlled substance by gift or offer, this would
still constitute distribution and be punishable as a Federal felony. See Pascual v. Holder,

, 158−59 (2d Cir. 2013).


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a conviction under State law for possessing or trafficking in a controlled
substance. Since the enactment of the CSA in 1970, approximately 160
substances have been added, removed, or transferred from one schedule
to another. See Office of Diversion Control, Drug Enforcement Admin.,
U.S. Dep’t of Justice, Controlled Substance Schedules, http://www.dea
diversion.usdoj.gov/schedules/ (last visited Sept. 19, 2014) (“Controlled
Substance Schedules”). An updated and complete list of the five schedules
is published annually. See 

.11−1308.15 (2014).
Substances are placed in their respective schedules based on their currently
accepted medical use in treatment in the United States, their relative abuse
potential, and the likelihood that they will cause dependence when being
abused. See Controlled Substance Schedules, supra.
    Since the schedules of the CSA change frequently, they often do not
match State lists of controlled substances, which are found in statutes and
regulations that are amended with varying frequency. That was the case
here, because Connecticut listed benzylfentanyl and thenylfentanyl as
controlled substances in its regulations at the time of the respondent’s 2010
conviction in violation of section 21a-277(a) of the Connecticut General
Statutes Annotated, long after the 1985 removal of these two obscure
substances from the Federal schedules. See also Sarah French Russell,
Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions
in Federal Sentencing, 

, 1205 n. 344 (2010)
(enumerating other States in which benzylfentanyl and thenylfentanyl
remain listed).
    Connecticut amended its schedules to exclude benzylfentanyl and
thenylfentanyl shortly after the publication of United States v. Madera,
United States v. Lopez, and United States v. Cohens. In any event, the
presence of these two substances in the Connecticut schedules at the time of
the respondent’s conviction meant that the definition of a controlled
substance incorporated by section 21a-277(a) was broader than the
definition of a controlled substance in 

(6), which is
incorporated by reference into sections 101(a)(43)(B) and 237(a)(2)(B)(i)
of the Act.
    In Moncrieffe, the Court considered whether an alien’s conviction for
possession of marijuana with intent to distribute under Georgia law
qualified as an aggravated felony conviction under section 101(a)(43)(B) of
the Act, making him removable under section 237(a)(2)(A)(iii). The Court
explained that the categorical approach requires looking not to the facts of
a prior criminal case, but to “whether ‘the state statute defining the crime
of conviction’ categorically fits within the ‘generic’ federal definition
of a corresponding” removal ground. Moncrieffe v. Holder, 

 (quoting Gonzales v. Duenas-Alvarez, 

 (2007)).

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“Generic” means that “offenses must be viewed in the abstract, to see
whether the state statute shares the nature of the Federal offense that serves
as a point of comparison.” 

 Therefore, a State offense categorically
matches a generic Federal offense only if a conviction for the State offense
“‘necessarily’ involved . . . facts equating” to the generic Federal offense.

 (quoting Shepard v. United States, 

 (2005) (plurality
opinion)). Since the categorical approach requires examining what the
State conviction necessarily involved, and not the facts underlying the case,
“we must presume that the conviction ‘rested upon [nothing] more than the
least of th[e] acts’ criminalized, and then determine whether even those acts
are encompassed by the generic federal offense.” 

 (alterations in
original) (quoting Johnson v. United States, 

 (2010)).
The Court further stated that the categorical approach’s “focus on the
minimum conduct criminalized by the state statute is not an invitation to
apply ‘legal imagination’ to the state offense.” 

 at 1684−85 (quoting
Gonzales v. Duenas-Alvarez, 

). Rather, the respondent must
show “a realistic probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the generic definition of
a crime.” 

 at 1685 (quoting same) (internal quotation marks omitted).
As the Court previously explained:

     [T]o find that a state statute creates a crime outside the generic definition of a listed
     crime in a federal statute requires more than the application of legal imagination to
     a state statute’s language. It requires a realistic probability, not a theoretical
     possibility that the State would apply its statute to conduct that falls outside the
     generic definition of a crime. To show that realistic probability, an offender, of
     course, may show that the statute was so applied in his own case. But he must at
     least point to his own case or other cases in which the state courts in fact did apply
     the statute in the special (nongeneric) manner for which he argues.

Gonzales v. Duenas-Alvarez, 

. Although sometimes
overlooked when determining removability,3 this “realistic probability test”
is part of the initial inquiry that an Immigration Judge must undertake when
applying the categorical approach.
    Importantly for this case, the Court in Moncrieffe addressed the
Government’s concern that its holding would necessarily tend to preclude
aliens from being removable based on an aggravated felony conviction for

3
   In Ragasa v. Holder, 

, 1175−76 (9th Cir. 2014), the United States Court
of Appeals for the Ninth Circuit terminated proceedings because the modified categorical
approach did not show that benzylfentanyl and thenylfentanyl did not form the basis of
the alien’s conviction. However, the court did not apply the “realistic probability”
analysis under Moncrieffe and Duenas-Alvarez.


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illicit trafficking in firearms pursuant to section 101(a)(43)(C) of the Act,
which defines an aggravated felony with reference to a Federal firearms
statute containing an exception for “antique firearm[s],” 

(a)(3) (2012). Moncrieffe v. Holder, 

. The
Government asserted in Moncrieffe that, under the Court’s reasoning, a
conviction under any State firearms law lacking such an “antique
firearms” exception would be found to fail the categorical inquiry. 

 The
Court rejected this concern, however, noting that

     Duenas-Alvarez requires that there be “a realistic probability, not a theoretical
     possibility, that the State would apply its statute to conduct that falls outside the
     generic definition of a crime.” To defeat the categorical comparison in this manner,
     a noncitizen would have to demonstrate that the State actually prosecutes the
     relevant offense in cases involving antique firearms.

 (emphasis added) (citation omitted).
    We applied this Supreme Court rule in Matter of Chairez, 

, 355−58 (BIA 2014). The respondent in Chairez asserted that the DHS
had not established removability under section 237(a)(2)(C) of the Act
because the Federal definition of the term “firearm” excludes “antique
firearm[s],” as defined by 

(a)(16), whereas the statute of
conviction, section 76-10-508.1 of the Utah Code, contains no such
exclusion. 

 In light of Moncrieffe and Duenas-Alvarez, we rejected the
respondent’s argument and clarified “that a State firearms statute that
contains no exception for ‘antique firearms’ is categorically overbroad
relative to section 237(a)(2)(C) of the Act only if the alien demonstrates
that the State statute has, in fact, been successfully applied to prosecute
offenses involving antique firearms.” Id. at 356. As the respondent offered
no support for his contention that section 76-10-508.1 of the Utah Code
is actually used to successfully prosecute individuals who unlawfully
discharge “antique firearms,” we discerned no “realistic probability” that
the statute would be applied in that manner. Id. at 357. We therefore held
that the Immigration Judge properly sustained the firearms offense
charge against the respondent. Id. at 358; see also United States
v. Carrasco-Tercero, 

, 197−98 (5th Cir. 2014) (applying
Moncrieffe in holding that a defendant was required to demonstrate
a realistic probability that New Mexico would charge an individual with
aggravated assault on the basis of using insulting language while handling
a deadly weapon).
    Therefore, the import of Moncrieffe and Duenas-Alvarez is that even
where a State statute on its face covers a type of object or substance not
included in a Federal statute’s generic definition, there must be a realistic
probability that the State would prosecute conduct falling outside the

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generic crime in order to defeat a charge of removability. Given the
requirement in Moncrieffe to focus on the least culpable conduct under the
categorical approach, rather than the alien’s actual conduct, the application
of the realistic probability test is necessary to prevent the categorical
approach from eliminating the immigration consequences for many State
drug offenses, including trafficking crimes.
    With that background, we now address the respondent’s removability
under sections 237(a)(2)(A)(iii) and (B)(i) of the Act. The Act and the
regulations provide that the DHS bears the burden of proving removability
by clear and convincing evidence. Section 240(c)(3)(A) of the Act;

(a) (2014). In accordance with this burden, the DHS
initiated removal proceedings and presented a copy of the respondent’s
2010 criminal judgment. The judgment states that he pled guilty to “sale of
certain illegal drugs” in violation of section 21a-277(a) of the Connecticut
General Statutes Annotated, which provides in pertinent part:

       Any person who manufactures, distributes, sells, prescribes, dispenses,
       compounds, transports 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, except as authorized in this chapter, for a first offense, shall
       be imprisoned not more than fifteen years and may be fined not more than fifty
       thousand dollars or be both fined and imprisoned . . . .

    The evidence submitted by the DHS establishes that the respondent was
convicted under a State statute proscribing conduct that is an offense under
the CSA: possession of a controlled substance with intent to distribute.
See 

(a)(1). Assuming that the substance was one included
in 

, the statute further corresponds to a felony punishable
under the CSA since the maximum term of imprisonment exceeds 1 year.
See Lopez v. Gonzales, 549 U.S. at 56 n.7, 60.
    Invoking the categorical approach, the respondent argues that
section 21a-277(a) did not “necessarily” proscribe conduct that was an
offense under the CSA when he pled guilty in 2010 because Connecticut’s
drug schedules regulated two obscure opiate derivatives (benzylfentanyl
and thenylfentanyl) that have not been included in the Federal schedules
since 1986. However, the categorical approach requires us to first apply the
realistic probability test.
    Under that test, for the proceedings to be terminated based on this
discrepancy between the Connecticut and Federal schedules, Connecticut
must actually prosecute violations of section 21a-277(a) in cases involving
benzylfentanyl and thenylfentanyl. See Moncrieffe v. Holder, 

; Gonzales v. Duenas-Alvarez, 

; see also United States

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v. Carrasco-Tercero, 745 F.3d at 197−98. Thus, a motion to terminate
should be granted if the respondent can, as stated in Duenas-Alvarez, 

, “at least point to his own case or other cases in which the
[Connecticut] state courts in fact did apply the statute in the special
(nongeneric) manner for which he argues.”
    The Immigration Judge did not apply the realistic probability test but
instead sustained the charges under the modified categorical approach
because the plea colloquy states that the respondent pled guilty to the “sale
of narcotics.” In this regard, the Immigration Judge erred because even
assuming that section 21a-277(a) of the Connecticut General Statutes
Annotated is divisible, both pertinent substances not listed in the Federal
schedules are narcotics. See 

, 43,698−99 (Oct. 29,
1985); McCoy v. United States, 707 F.3d at 187–88. Therefore, the
modified categorical approach is unavailing in this case.
    However, as explained above, the “realistic probability” test must be
applied as part of the categorical approach, but it was not applied by the
Immigration Judge. Since such application requires fact-finding, we will
remand the record to the Immigration Judge for application of the realistic
probability test, as described in Moncrieffe and Duenas-Alvarez. On
remand, the parties may submit additional evidence and argument, which
may include evidence of Connecticut prosecutions (or the lack thereof) for
possession or sale of benzylfentanyl and thenylfentanyl, or evidence that
the respondent’s conviction involved these obscure substances, rather than
those included on the Federal schedules.
    ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a
new decision.




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