U.S.

Department of Justice

Executive Office for Immigration Review Board ofImmigration Appeals Office of the Clerk
5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Guajardo, Clarissa Esq. Clarissa Guajardo Law Office 5718 Westheimer Road, Suite 1525 Houston, TX 77057

OHS/ICE Office of Chief Counsel - HOU 126 Northpoint Drive, Suite 2020 Houston, TX 77060

Immigrant & Refugee Appellate Center | www.irac.net

Name: QUIROGA-BRIONES, JUAN

A 028-323-575

Date of this notice: 12/3/2013

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

DOWtL ct2IVt.)
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

schuckec Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Juan Quiroga-Briones, A028 323 575 (BIA Dec. 3, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Board ofImmigration Appeals Office of the Clerk
Falls Church, Virginia 20530 5107 Leesburg Pike, Suite 2000

QUIROGA-BRIONES, JUAN A028-323-575 POLK COUNTY DETENTION CENTER 3400 FM 350 SOUTH LIVINGSTON, TX 77351

OHS/ICE Office of Chief Counsel - HOU 126 Northpoint Drive, Suite 2020 Houston, TX 77060

Immigrant & Refugee Appellate Center | www.irac.net

Name: QUIROGA-BRIONES, JUAN

A 028-323-575

Date of this notice: 12/3/2013

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Sincerely,

DorutL t!t1JVL)
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

schuckec Userteam: Docket

Cite as: Juan Quiroga-Briones, A028 323 575 (BIA Dec. 3, 2013)

,_

_-!

... .,,.

U.S. Department of Justice

Executive Office for Immigration Review Falls Chur:ch, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A028 323 575 - Houston, TX

Date:

DEC 0 3 .2013

In re: JUAN QUIROGA-BRIONES a.k.a. Juan Quiroga IN REMOVAL PROCEEDINGS APPEAL

Immigrant & Refugee Appellate Center | www.irac.net

ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Clarissa Guajardo, Esquire

Alice Hogue Kay Assistant Chief Counsel

APPLICATION:

Termination; remand

The respondent, a native of Mexico and a lawful permanent resident of the United States, appeals from an Immigration Judge's May 21, 2013, decision sustaining the charge of removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), and ordering his removal. The record will be remanded to the Immigration Judge. We review Immigration Judges' findings of fact, including the determination of credibility, under a clearly erroneous standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions of law, including whether the parties have met the relevant burdens of proof, and issues of discretion under a de novo standard. 8 C.F.R. 1003.l(d)(3)(ii). On appeal, the respondent contests the Immigration Judge's finding that his 2008 conviction for a violation of section 481.112(d) of the Texas Health and Safety Code qualifies as a "drug trafficking crime" and, by extension, an aggravated felony under section 101(a)(43)(B) of the Act, 8 U.S.C. 1101(a)(43)(B). The Supreme Court held in Lopez
v.

Gonzales, 549 U.S. 47 In

(2006), that a state offense constitutes a "felony punishable under the Controlled Substances Act" only if it proscribes conduct punishable as a felony under that federal law. United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir. 2007), the United States Court of

Appeals for the Fifth Circuit concluded that section 481.112 of the Texas Health and Safety Code, which criminalizes the knowing manufacture, delivery, or possession with intent to deliver a controlled substance, was broader than the definition of a "drug trafficking offense." The court noted that "deliver," defined, in relevant part, as the ''transfer, actually or constructively, to another a controlled substance," specifically includes "offering to sell a controlled substance," which does not require possession of the controlled substance, and lies outside the definition of a Subsequently, the court in United States "drug trafficking crime." See section 481.002 of the Texas Health and Safety Code.
v.

Ford, 509 F.3d 714 (5th Cir. 2007), another case

involving section 481.112 of the Texas Health & Safety Code, in a decision withdrawing its May 24, 2007, opinion, noted that the indictment had charged the alien with possession with intent to deliver, and concluded that, as the conviction was for possession with the intent to deliver rather than just delivery or transportation, United States
v.

Gonzales was not controlling.

Cite as: Juan Quiroga-Briones, A028 323 575 (BIA Dec. 3, 2013)

. .
A028 323 575 As noted above, here the respondent was convicted of a violation of section 481.112(d) of the Texas Health and Safety Code. Consistent with United States v. Ford, supra, we find that the respondent has been convicted under a divisible statute, requiring the application of the modified See also Descamps categorical approach to determine whether he has been convicted of an aggravated felony.
v.

United States, 133 S.Ct. 2276 (2013). The record of conviction includes The indictment charged the

only a record of judgment of conviction and an indictment.

less than 200 grams). However, the judgment of conviction reflects that the respondent pleaded guilty to manufacture/delivery of a controlled substance. Likewise, the Notice to Appear alleges that the respondent's conviction was for manufacture/delivery of cocaine (Exh. 1).

respondent with possession of cocaine with intent to deliver (an amount of 4 grams or more but

The

Immigrant & Refugee Appellate Center | www.irac.net

Immigration Judge noted that there appears to be a discrepancy between what the respondent was charged with and what he was convicted of (Tr. at 129). While the Immigration Judge correctly stated that a conviction for possession with intent to deliver would constitute an aggravated felony pursuant to United States
v.

Ford, supra, in this matter it is not clear that the respondent

As the Fifth Circuit discussed in United States v. Gonzales, supra, "delivery" specifically includes "offering to sell a controlled substance," which lies outside the definition of a "drug trafficking crime." On this record, we conclude that the Department of Homeland Security has not met its burden to sustain the charge of removability by clear and convincing evidence. In light of the foregoing, we conclude that a remand for further consideration as to the respondent's removability and eligibility for relief from removal is appropriate. As the respondent's removability is now an open question, it would be premature to address the other 1 arguments advanced in his appeal at this time. Accordingly, the following order shall be issued. ORDER: The record is remanded to the Immigration Court for further proceedings

plead guilty to such an offense, as opposed to manufacture or delivery of a controlled substance.

consistent with the foregoing opinion and for the entry of a new decision.

FOR THE BOARD

1 We note the respondent's contention on appeal that he may have derived United States citizenship and submission of his paternal grandmother's birth certificate issued by the State of

Texas. 2

Cite as: Juan Quiroga-Briones, A028 323 575 (BIA Dec. 3, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT HOUSTON, TEXAS

File: A028-323-575 In the Matter of

May 21, 2013

Immigrant & Refugee Appellate Center | www.irac.net

) JUAN QUIROGA-BRIONES RESPONDENT ) ) ) IN REMOVAL P ROCEEDINGS

CHARGE:

Section 237(a)(2)(A)(iii) of the Act - convicted of an aggravated felony.

APPLICATIONS:

None.

ON BEHALF OF RESPONDENT: MARIANELLA MADELIUS Houston, Texas ON BEHALF OF OHS: ALICE KAY ACC Houston, Texas

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a 26-year-old male, native and citizen of Mexico. He is in removal proceedings, answering the Notice to Appear, filed as Exhibit No. 1. That document was dated April 5, 2013. On the Notice to Appear, he is charged with being subject to removal as one convicted of an aggravated felony as that term is defined at Section 101(a)(43)(8) of the Act, convicted of trafficking in a controlled substance. 1

_.. . . . .. .. .... 444'. . ..A&.&4t.4

w&w

The Government alleges in support of that charge, and respondent admits, that he is not a citizen of the United States, was born in Mexico, is a citizen of Mexico, was admitted to the United States at Brownsville, Texas, October 20, 1986 as a permanent resident. That in September 2008, he was convicted in Brazos County, Texas for the offense of manufacturing and delivery of a controlled substance, to wit: cocaine, for which he was sentenced to confinement for a period of 12 years. The respondent, despite his admissions to the allegations, denies that he is subject to removal. The respondent's theory of him not being convicted of a drug trafficking crime is based upon the Fifth Circuit Court of Appeals, the Federal Circuit, the distinction for Texas delivery of controlled substance convictions that require either a showing of actual, constructive, or offer to sale of a controlled substance. Indeed, the Fifth Circuit has held that a Texas delivery of cocaine conviction that involves offer to sale is not a felony offense under the Federal Controlled Substances Act, and, therefore, would not be an aggravated felony. However, in this case, the Court notes that the indictmen t was included with the conviction record, and the indictment indicates respondent possessed with intent to distribute cocaine. The conviction record identifies the conviction as being manufacture and delivery of cocaine. Read in conjunction with the indictment, the Court finds that the respondent was convicted of an aggravated felony either because he was convicted of possession with intent to deliver or he was convicted of delivery of a controlled substance. In any event, the Court finds that either would have resulted if prosecuted under Federal law in a felony conviction, making respondent convicted of a drug trafficking crime. Respondent declined to designate a country of removal. The Court directs removal to Mexico. Respondent did not seek relief from removal, therefore, the

Immigrant & Refugee Appellate Center | www.irac.net

A028-323-575

May 21, 2013

following is the order of the Court. ORDER IT IS HEREBY ORDERED the respondent be removed from the United States to Mexico on the charge sustained on the Notice to A ppear
.

Immigrant & Refugee Appellate Center | www.irac.net

JIMMIE LEE BENTON Immigration Judge

A028-323-575

May 21, 2013