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Calfus Wentworth Drummond, A075 443 280 (BIA Nov. 22, 2013)

Calfus Wentworth Drummond, A075 443 280 (BIA Nov. 22, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for consideration of the respondent’s application for cancellation of removal following the decision in Donawa v. U.S. Attorney General, No. 12-13526 (Nov. 7, 2013), finding that possession of marijuana with intent to sell under Fla. Stat. 893.13(1)(a)(2) is not a categorical drug trafficking aggravated felony. The decision was written by Member John Guendelsberger.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for consideration of the respondent’s application for cancellation of removal following the decision in Donawa v. U.S. Attorney General, No. 12-13526 (Nov. 7, 2013), finding that possession of marijuana with intent to sell under Fla. Stat. 893.13(1)(a)(2) is not a categorical drug trafficking aggravated felony. The decision was written by Member John Guendelsberger.

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Published by: Immigrant & Refugee Appellate Center, LLC on Nov 27, 2013
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DRUMMOND, CALFUS WENTWORTH

C05892/A075-43-280
TOMOKA CORRECTIONAL INSTITUTE
3950 TIGER BAY ROAD
DAYTONA BEACH, FL 32124
Name: DRUMMOND, CALFUS WENTW ...
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leeburg Pike, Suite 2000
Flls Church. Vrginia 20530
OHS/ICE Ofice of Chief Counsel - MIA
333 South Miami Ave., Suite 200
Miami, FL 33130
A 075-443-280
Date of this notice: 11/22/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Sincerely,
DO c t
Donna Carr
Chief Clerk
yungc
Usertea m: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Calfus Wentworth Drummond, A075 443 280 (BIA Nov. 22, 2013)
U.S. Department of Justice
\
Executive Ofc fr Immigation Review
Decision of the Board oflmmigation Appeals
Falls Chuch, Virginia 20530
File: A075 443 280 - Daytona Beach, FL
In re: CALFUS WENTWORTH DRUMMOND
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RSPONDENT: Pro se
Date:
ON BEHALF OF OHS: Chistina Mayak
Assistant Chief Counsel
NV. 22
2013
In an oral decision dated June 24, 2013, an Immigration Judge fund the respondent
removable; deterined that he did not apply fr, and did not demonstate eligibility fr, ay
relief fom removal; and ordered him removed fom the United States to Jamaica. 1 The
respondent appealed fom tat decision. Te record will be remanded.
The respondent was fund removable on the fur charged gounds, as convicted of an
aggravated flony under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii), in
conjunction wit section 10l(a)(43)(B) of the Act, 8 U.S.C. § l 10l(a)(43)(B); as convicted of a
contolled substance violation under section 237(a)(2)(B)(i) of the Act; as convicted of crimes
involving moral turpitde under section 237(a)(2)(A)(ii) of the Act; and as convicted of a
frears or destuctive device violation under section 237(a)(2)(C) of the Act. As substantiated
by conviction documents, he has Florida convictions, in February 2007 fr "possession of
marijuaa with intent to sell" and "feeing or attempting to elude a law enfrcement offcer," fr
which crimes he was sentenced to a prison ter of 6 months; in Febrary 2007 fr "utering a
frged instment," and "gand thef third degree," fr which crimes he was sentenced to
a second, concurrent prison term of 6 monts; and in August 2011 fr "possession of a
frear by a convicted felon," fr which crime he was sentenced to a prison ter of 3 years.
He was admitted to te United States as a lawfl permanent resident on or about Mach 4, 1998.
On appeal, the now 29-year-old respondent contends that his 2007 conviction under Fla. Stt.
§ 893.13(l)(a)(2) fr "possession of marijuana with intent to sell" is not fr a drug traffcking
ofense because there was no proof tat he had the marijuana fr any purose other than his
personal use.
1 The proceedings befre the Immigration Judge in ths matter were completed in Daytona
Beach, Florida though telephone conference pursuant to section 240(b )(2)(A)(iv) of the
Imigration and Nationality Act, 8 U.S.C. § 1229a(b)(2)(A)(iv).
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Cite as: Calfus Wentworth Drummond, A075 443 280 (BIA Nov. 22, 2013)
7
.•
A075 443 280
\
.
Subsequent to the Immigration Judge's decision, the United States Court of Appeals fr the
Eleventh Circuit issued its decision in Donawa v. US. Attorney General, _F.3d_, 2013 W
5944045 (Nov. 7, 2013). In that controlling precedent decision, the Eleventh Circuit held that a
conviction under Fla. Stat.§ 893.13(l)(a)(2), as amended by Fla. Stat. § 893.101, was not a drug
taffcking aggavated flony uder the categorical approach, since the least of acts criminalize
under Fla. Stat. § 893.13(1)(a)(2) did not necessaily corespond to the fderal defnition in
18 U.S.C. § 924. Furer, the Eleventh Circuit held that the modifed categorical approach was
inapplicable because Fla. Stat. § 893.13(l)(a)(2) is not divisible witin the meang of Descamps
v. United States, _U.S._, 133 S.Ct. 2276 (2013). In light of Donawa v. U.S. Atorney
General, supra, the respondent's 2007 conviction under Fla. Stat.§ 893.13(1)(a)(2) is not fr a
drg taffckng ofense ad thus is not fr an aggravated flony. Consequently, he is eligible to
apply fr cacellation of removal fr permanent residents pursuant to section 240A(a) of the Act,
8 U.S.C. § 1229b(a).
2
Given the fregoing, we fnd that a remand is necessay. On remand, the Immigation Judge
is to consider the respondent's application fr cancellation of removal uder section 240A(a) of
the Act. The respondent may apply fr any frm of relief fr which he can demonstrate
eligibility. Bot the respondent and the Department of Homelad Security will have the
opporunity to present ad all avalable evidence that is relevant to the respondenC s stattory and
discretionay eligibility fr relief.
Accordingly, we issue the fllowing order.
ORDER: Te record is remaded to the Immigration Court fr fher proceedings to
include the issuace of a new decision, consistent with this opinion.
�L.
FOR' BOARD
.
2 In te recent decision of Moncrief v. Holder, _U.S._, 133 S.Ct. 1678 (2013), the United
States Supreme Court held that, if an alien's conviction fr a marijuana distribution ofense fails
to establish that the ofense involved either remuneration or more than a small aount of
marijuana, it is not an aggravated flony under the Act.
2
a ;
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Cite as: Calfus Wentworth Drummond, A075 443 280 (BIA Nov. 22, 2013)
¯ ¬
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRTION COURT
MIAMI, FLORIDA
File: A075-443-280
In the Mater of
June 24, 2013
CALFUS WENTORTH DRUMMOND
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: A violation of Section 237(a)(2)(C), 237(a)(2)(A)(iii) and
237(a)(2)(A)(ii) of the Immigration and Nationality Act.
APPLICATIONS: None at the present time.
ON BEHALF OF RESPONDENT: RICHARD C. REINHART
Law Ofice of Richard C. Reinhar P.C.
310 13th Street
West Bradenton, Florida 34205
ON BEHALF OF OHS: PATRICIA KELLY LE BIENVENU
Assistant Chief Counsel
Deparment of Homeland Security
333 South Miami Avenue
Second Floor
Miami, Florida 33130
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a male native and citizen of Jamaica. The respondent was
issued a Notice to Appear by the Department of Homeland Security that is dated
1
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February 1, 2012. The respondent was sered by mail on March 12, 2012. See Exhibit
No. 1. In that document, the Government alleged that the respondent had been
admitted to the United States at Tampa, Florda, on or about March 4, 1998, as a lawful
permanent resident. In addition, the Goverment stated that on August 24, 2011, the
respondent was convicted in the Twelfth Judicial Circuit at or for Manatee Count, the
State of Florida, fr the ofense of possession of a firearm by a convicted felon in
violation of Florida State Statutes 790.23 and 775.087 and sentenced to a prison term
of three years confinement. Furhermore, it was alleged in this document that on
Februar 27, 2007, the respondent was convicted in the Twelfh Judicial Circuit at or fr
Manatee County, the State of Florida, for the offense of marijuana with intent to sell, one
count, in violation of Florida State Statute 893.13(1 )(a)(2) and fleeing or attempting to
elude a law enfrcement officer, one count, in violation of Florida Statute 316.19351 and
sentenced to a jail term of 60 days. Finally, on February 27, 2007, the respondent was
convicted in the Twelfth Judicial Circuit at or for Manatee County, the State of Florida,
for the ofense of uttering a frged instrument, one count, in violation of Florida State
Statute 831.02 and grand thef in the third degree, one count, in violation of Florida
Statute 812.01412(c) and sentenced to a jail term of six months.
The Notice to Appear was personally sered in the Cour on March, therefre,
rendering jurisdiction to the Cour as of that date.
In suppor of the criminal allegations, the Deparment of Homeland Security filed
cerifed Criminal Cour documents in this case that were marked into the record as
Exhibit No. 2. Those documents were marked on March 25, 2012.
On April 22, 2013, the respondent, through counsel, addressed the charges in
the Notice to Appear. The Court, upon review of the cerified criminal Cour document,
sustained all charges of removability in this case.
A075-443-280 2 June 24, 2013
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On that day, respondent's counsel indicated to the Cour that he was pursuing a
naturalization application through the military pursuant to the respondent's frmer
militar serice. Furthermore, the respondent's counsel stated that he was unsure
whether or not the Cour's determination that the respondent's marijuana conviction
constituted an aggravated felony ofense.
The Department of Homeland Security, on May 24, 2013, filed a brief in support
of this Cour's ruling that possession of marijuana with intent to sell under Florida
Statute 893.139(1 )(a)(2) is an aggravated felony.
In a hearing on today's date, the Cour reviewed the cerified Criminal Cour
documents directly relating to the marijuana conviction. Upon review of those
documents and a reading of the statute, the Court finds that its prior decision
designating the possession of marijuana with intent to sell as an aggravated felony is
correct and, therefre, the Cour will not change its prior determination.
On today's date, the Deparment of Homeland Security addressed the issue of
the respondent's application fr naturalization. The Department of Homeland Security
made reference to a May 1, 2009, letter from USCIS that refers to an application for
naturalization filed on June 9, 2005, based on the respondent's serice in the U.S.
Armed Forces. It appears that the respondent had been scheduled fr a naturalization
interiew on December 14, 2005, and did not appear for the interiew. Therefore, the
application was administratively closed as it had been abandoned due to the
respondent's failure to pursue said application.
It should be noted that this letter, which will be sered on the Cour as well as
respondent's counsel, indicates that he could reopen the application. However, there is
the issue as to the respondent's eligibility to obtain United States citizenship based on
his criminal record. As a result, at this time the Cour deems that it could proceed with
A075-443-280 3 June 24, 2013
fNM , 4 ' ��`
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¯>-
concluding this case based on the state of the case today.
The respondent had not designated a country of removal at the time that the
Notice to Appear had been addressed. The Cour designated Jamaica.
Because the respondent has been convicted of an aggravated felony, specifically
a drug traficking offense, the respondent is ineligible to apply for cancellation of
removal for lawful permanent residents. Furhermore, even if the respondent were able
to apply for readjustment under the Eleventh Circuit holding in Lanier statutorily, there is
no waiver fr a drug trafcking ofense. Therefore, he cannot seek that form of relief.
Because the respondent has been convicted of a drug trafficking crime, he is statutorily
ineligible fr asylum under Section 208. He has also been convicted of a crme
classified as a paricularly serious crime and is, therefore, ineligible for withholding of
removal under Section 241 of the Act. Please see In re Y-L-. A-G-. R-S-R-, 23 l&N Dec.
270 (Attorney General 2000). The Cour has, therefre, concluded, upon review of the
record and upon conversation with both counsel and the respondent, that at the present
time the respondent appears to not to be eligible for prtecion under Aricle 3 of the
Convention against Torure as at no time has the respondent requested this frm of
relief.
Consequently, there being no frs of relief available to this respondent, the
Cour will enter the following decision:
ORDERS
This respondent having no relief available is hereby ordered removed from the
United States to Jamaica.
A075-443-280

LOURDES RODRIGUEZ DE JONGH
Immigration Judge
4 June 24, 2013
.il
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*·¬ ~=
CERTIFICATE PAGE
I hereby cerify that the attached prceeding befre JUDGE LOURDES
RODRIGUEZ DE JONGH, in the matter of:
CALFUS WENTORTH DRUMMOND
A075-443-280
MIAMI, FLORIDA
was held as herein appears, and that this is the original transcript thereof fr the file of
the Executive Ofice fr Immigration Review.
KAREN COEN BROOKS (Transcriber)
FREE STATE REPORTING, lnc.-2
AUGUST 19, 2013
(Completion Date)
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