You are on page 1of 4

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net U.S. Department of Justice Executive Office for Immigration Review

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Of

of the Clerk

Reszko, Seth L Reza Athari & Associates 3365 Pepper Lane

#102

Las Vegas, NV 89120

51071.eesburg Pike, Suite 2000

Falls Church.

Virgmia

20530

OHS/ICE Office of Chief Counsel - LVG 3373 Pepper Lane Las Vegas, NV 89120

Name: CRUZ MARTINEZ, MARCO ANT ...

A 070-726-184

Date of this notice: 4/21/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

DOrutL cWv't.)

Enclosure

Panel Members:

Cole, Patricia A. Geller, Joan B Malphrus, Garry 0.

Donna Carr

Chief Clerk

Userteam:

Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index

Cite as: Marco Antonio Cruz-Martinez, A070 726 184 (BIA April 21, 2015)

Immigrant & Refugee Appellate Center | www.irac.net U.S. Department of Justice Executive Office for Immigration Review

Immigrant & Refugee Appellate Center | www.irac.net

f ,....... ·" ,
f
,.......
·"
,

U.S. Department of Justice

Exec.utive Office for Immigration Review

Decision of the Board of Immigration Appeals

falls Church, Virginia 20530 File: A070 726 184 - Las Vegas, NV Date: APR 212015 In
falls Church, Virginia
20530
File: A070 726 184 - Las Vegas, NV
Date:
APR
212015
In re: MARCO ANTONIO CRUZ-MARTINEZ

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Seth Reszko, Esquire

CHARGE:

Notice:

Sec.

212(a)(6)(A)(i), I&N Act [8 U .S.C. § 1182(a)(6)(A)(i)] - Present without being admitted or paroled

APPLICATION: Waiver of inadmissibility; Adjustment of status

This case was last before the Board on February 7, 2013, when we affirmed an Immigration Judge's decision finding the respondent ineligible for a waiver of inadmissibility because his conviction under section 454.351 of the Nevada Revised Statutes was a violation of a law relating to a controlled substance within the meaning of section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(II). 1 On March 24, 2014, the United States Court of Appeals for the Ninth Circuit remanded this record for further proceedings, including for the Board to address whether the Nevada statute at issue, which references the Federal Food, Drug, and Cosmetic Act ("FDCA"), is a law that relates to a "controlled substance" as that term is defined in the Federal Controlled Substances Act. See Order of the Ninth Circuit (citing Borrome v. Atty Gen., 687 F.3d 150 (3d Cir. 2012) (finding violation of provisions of the FDCA relating to unlawful wholesale distribution of certain drugs did not constitute a drug trafficking crime)).

In its order remanding this record, the Ninth Circuit indicated that although it had not yet had an opportunity to decide whether a violation of the FDCA was a violation of a law relating to a controlled substance, the Third Circuit had found in Borrome v. Atty Gen., supra, that an alien's conviction under 21 U.S.C. §§ 331(t) and 353(E)(2)(A) did not so qualify. In so holding, the Third Circuit noted that the alien at issue in Borrome v. Att 'y Gen., supra, had sustained a conviction under a provision of the FDCA that prohibits engaging in the wholesale distribution in interstate commerce of prescription drugs without a proper license. 687 F.3d at 157-58. The

1 The Immigration Judge also addressed several of the respondent's other convictions of record-i.e., for obstructing a police officer, domestic violence battery, and harassment-and found all of these convictions to involve moral turpitude. See I.J. at 3-5. Because our finding triggered a conclusion that the respondent was ineligible for a waiver of inadmissibility, and, therefore, adjustment of status, we found it unnecessary to address the respondent's arguments that the Immigration Judge erred in classifying his other convictions as involving moral turpitude.

Cite as: Marco Antonio Cruz-Martinez, A070 726 184 (BIA April 21, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net A070 726 184 Third Circuit found that prescription drugs

A070 726 184

Third Circuit found that prescription drugs subject to those sections of the FDCA are listed in the Federal Drug Administration's Orange Book, which contains many substances also listed on the Federal schedules of controlled substances, and many that are not listed. Id at 158. This "daylight" between the Orange Book and Federal controlled substance schedules led the Third Circuit to find that a conviction arising under 21 U.S.C. §§ 33 l(t) and 353(E)(2)(A) was not

punishable as

a drug trafficking crime. 2

While the Borrome v. Atty Gen., supra, case is instructive, it does not dictate a result in this case. Unlike the alien in that case, the respondent was not convicted under the FDCA itself, but rather, under a provision of Nevada law that references the FDCA. See Nev. Rev. Stat. § 454.351. That statute provides that:

"[a]ny

person

. . .

who possesses, procures, obtains, produces, derives,

manufactures, sells, offers for sale, gives away or otherwise furnishes any drug which may not be lawfully introduced into interstate commerce under the Federal [FDCA] is guilty of a misdemeanor."

The Nevada statute does not on its face reference the same provisions of the FDCA at issue in Borrome v. Atty Gen., supra. In fact, it is unclear to what extent the Nevada law incorporates the FDCA when it refers to "any drug which may not be lawfully introduced into interstate commerce." The FDCA is a broad statute enacted as part of a comprehensive effort covering, inter alia, certain substances, including prescription drugs, which also are listed on the Federal controlled substance schedules. See, e.g., 21 U.S.C. § 829. Schedule II, II, and IV substances can also be covered by the FDCA. See U.S. v. Flowers, 818 F.2d 464, 468-69 (6th Cir. 1987); U.S. v. Moore, 505 F.2d 426, 438-39 (D.C. Cir. 1974) (rev'd on other grounds); see also U.S. v. Cole, 457 F.2d 1141, 1145 (9th Cir. 1972) (prosecution for manufacture of methamphetamine under FDCA); U.S. v. Shipstead, 433 F.2d 368 (9th Cir. 1970).

Given the lack of clarity as to the coverage of the Nevada statute, the passage of time, 3 and the issuance of intervening precedent, we find that a remand of this record is warranted. While this appeal was pending, the Board decided Matter of Ferreira, 26 I& N Dec, 415 (BIA 2014), which holds that where a State statute on its face covers a controlled substance not included in the Federal controlled substance 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. Given the potential impact of this intervening decision, we remand to the Immigration Judge to analyze, in the first instance, whether the statute under which the respondent was convicted is categorically a controlled substance offense, and if not, if it is divisible under Descamps v. United States, 133 S. Ct. 2276 (2013), and prevailing circuit law.

  • 2 The Borrome v. Atty Gen., supra, case involved the question whether the alien's conviction was a drug trafficking crime under section 10l(a)(43)(B) of the Act under the "hypothetical Federal felony test" or under the "illicit trafficking" test. As noted, the question here is whether the respondent's conviction constitutes one for violating a law relating to a controlled substance.

  • 3 The Immigration Judge's decision in this matter was issued in September 2011.

2

Cite as: Marco Antonio Cruz-Martinez, A070 726 184 (BIA April 21, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net A070 726 184 As noted, we previously did not

A070 726 184

Immigrant & Refugee Appellate Center | www.irac.net A070 726 184 As noted, we previously did not

As noted, we previously did not address the respondent's argument that the Immigration Judge erred in finding that his other convictions for, inter alia, obstructing a police officer, domestic battery, and harassment, rendered him inadmissible under section 212(a)(2)(A)(i)(I) of

the Act. See supra note I. Since our decision in this case was issued, the United States Supreme Court and the Ninth Circuit have issued precedent that should be applied to the respondent's

case. This precedent bears on determinations of whether a law under which the respondent was

Immigrant & Refugee Appellate Center | www.irac.net A070 726 184 As noted, we previously did not

convicted categorically describes a crime involving moral turpitude, when a modified categorical analysis (considering certain conviction records) is appropriate, and the extent that an inconclusive record can satisfy an alien's burden of proving eligibility for relief. See Descamps·

  • v. United States, supra; Olivas-Motta v. Holder, 746 F.3d 907 (9th Cir. 2013); Almanza-Arenas

  • v. Holder, 771 F.3d 1184 (9th Cir. 2014). On remand, if deemed necessary and appropriate

considering the remand to address the conviction under section 454.351 of the Nevada Revised

Statutes,

4

the Immigration Judge should undertake further analysis as to whether the respondent

is eligible for adjustment of status and/or a waiver of inadmissibility given his most current conviction record.

Accordingly, the following order is entered.

ORDER: The record is remanded for further proceedings consistent with this order.

�d&P

FOR THE BOARD

4 A determination by the Immigration Judge that the respondent's convictions render him inadmissible under section 212(a)(2)(A)(i)(II) would moot the question whether other convictions involve moral turpitude and whether he is fit for a discretionary waiver under section 212(h) of the Act.

3

Cite as: Marco Antonio Cruz-Martinez, A070 726 184 (BIA April 21, 2015)