[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14340

____________________

EVERTON DAYE, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A200-316-306

____________________

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 1 of 17
20-14340 Opinion of the Court 2

Before GRANT, LUCK, and HULL, Circuit Judges.

HULL, Circuit Judge:

Everton Daye, a native and citizen of Jamaica, petitions for 

review of the Board of Immigration Appeals’s (“BIA”) decision that 

concluded that Daye was removable based on (1) his two state 

convictions for felony transporting into Virginia controlled 

substances with the intent to distribute and (2) his third state 

conviction for felony conspiracy to transport marijuana into 

Virginia. 

After review and with the benefit of oral argument, we hold 

that the BIA did not err in concluding that Daye was removable 

because his state drug trafficking convictions categorically 

constitute crimes involving moral turpitude (“CIMT”) within the 

meaning of Immigration and Nationality Act (“INA”) 

§ 237(a)(2)(A)(i)-(ii), 8 U.S.C. § 1227(a)(2)(A)(i)-(ii). Further, the 

Supreme Court’s decision in Jordan v. De George forecloses Daye’s 

claim that the phrase “crime involving moral turpitude” in the INA 

is unconstitutionally vague. See 341 U.S. 223, 231-32, 71 S. Ct. 703, 

708 (1951). Accordingly, we deny Daye’s petition.

I. BACKGROUND 

A. Daye’s Virginia Convictions

On May 22, 2008, Daye was admitted to the United States 

on a B-2 visitor’s visa. After Daye married a U.S. citizen, his status 

was adjusted to lawful permanent resident in September 2009. 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 2 of 17
20-14340 Opinion of the Court 3

In separate criminal cases in 2013, Daye was convicted of (1) 

two substantive counts of transporting one ounce or more of 

cocaine, or another Virginia Schedule I or II controlled substance,

or five pounds of marijuana into Virginia with the intent to sell or 

distribute the substance, in violation of Va. Code Ann. § 18.2-

248.01, and (2) one conspiracy count of transporting more than five 

pounds of marijuana into Virginia, in violation of Va. Code Ann. 

§ 18.2-256 (the conspiracy statute). The underlying substantive 

offense for the conspiracy count is Va. Code Ann. § 18-2.248.01, the

same statute in Daye’s other convictions. The parties agree that 

Daye committed his two substantive drug offenses on March 15, 

2013 and his marijuana conspiracy offense beginning on August 13, 

2013. 

In February 2014, the state court imposed prison terms of 

seven years for each of the two substantive drug offenses, to run 

consecutively, and another consecutive prison term of five years 

for the marijuana conspiracy offense. The resulting total term was

19 years, with six years to be served in prison and the balance 

suspended. 

B. Removal Proceedings Before the IJ

In 2018, the Department of Homeland Security issued a 

Notice to Appear, charging Daye with removability on multiple 

grounds, including: (1) under INA § 237(a)(2)(A)(i), 8 U.S.C. 

§ 1227(a)(2)(A)(i), as an alien convicted of a CIMT committed 

within five years after admission for which a sentence of one year 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 3 of 17
20-14340 Opinion of the Court 4

or longer may be imposed; and (2) under INA § 237(a)(2)(A)(ii), 8 

U.S.C. § 1227(a)(2)(A)(ii), as an alien who at any time after 

admission was convicted of two CIMTs not arising out of a single 

scheme of criminal misconduct.1 

In April 2019, Daye, represented by counsel, moved to 

terminate removal proceedings. Daye argued that his state drug 

convictions did not qualify as CIMTs because Virginia’s statutes 

penalized substances that were not federally controlled and 

transporting a non-federally controlled substance was akin to a 

regulatory offense that was not morally reprehensible. In 

opposition, the government argued, inter alia, that Daye’s drug 

convictions supported removability because the BIA had long held 

that participation in an illicit drug trafficking crime was an offense 

involving moral turpitude. See In re Khourn, 21 I. & N. Dec. 1041, 

1046-47 (BIA 1997).

The IJ denied Daye’s motion to terminate removal 

proceedings based on the CIMT grounds. The IJ concluded that all 

three of Daye’s Virginia drug convictions constituted CIMTs. The 

IJ determined that the prohibited substances in Va. Code Ann. 

§ 18.2-248.01 were broader than the federal controlled substances. 

Further, Va. Code Ann. § 18.2-248.01 was not a divisible statute, 

and thus the categorical approach applied. 

1 The IJ granted Daye’s motion to terminate as to two other grounds for 

removability charged in the Notice to Appear. The CIMT grounds are the 

only ones before us. 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 4 of 17
20-14340 Opinion of the Court 5

Applying the categorical approach, the IJ concluded an 

offense under Va. Code Ann. § 18.2-248.01—which includes an 

intent to distribute—necessarily required a morally culpable 

mental state and morally reprehensible conduct. The IJ relied upon 

In re Khourn, in which the BIA held that cocaine distribution in 

violation of 21 U.S.C. § 841(a)(1) constitutes a CIMT. See 21 I. &

N. Dec. at 1044 n.4, 1046-47. The IJ also cited Guevara-Solorzano 

v. Sessions, in which the Fourth Circuit concluded that a Tennessee 

conviction for unlawful possession of marijuana with intent to 

manufacture, deliver or sell constituted a CIMT. See 891 F.3d 125, 

129, 135-36 (4th Cir. 2018). 

Because Daye committed the two substantive drug offenses 

within five years after his May 22, 2008 admission, and those 

offenses carried a sentence of one year or longer, the IJ found that 

Daye was removable under INA § 237(a)(2)(A)(i), 8 U.S.C. 

§ 1227(a)(2)(A)(i). Because those two substantive drug offenses and 

Daye’s drug conspiracy offense all occurred after his 2008 

admission and did not arise out of a single scheme of criminal 

misconduct, the IJ found that Daye was removable also under INA 

§ 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(i). 

The government’s motion for reconsideration argued that 

the IJ erred in concluding that Va. Code Ann. § 18.2-248.01 was not 

divisible as to the particular substance transported. Denying the 

motion, the IJ concluded that the particular substance transported 

was not an element of the offense under Virginia law given that it 

was not required to be found by the jury and there were no 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 5 of 17
20-14340 Opinion of the Court 6

sentencing differences corresponding with the type of substance. 

Daye was ordered removed to Jamaica. 

C. Appeal to the BIA

On appeal to the BIA, Daye contended his Virginia offenses 

were not categorically CIMTs. The government did not crossappeal to the BIA the IJ’s divisibility ruling, but it did “maintain[]”

in a motion for summary affirmance that Va. Code Ann. § 18.2-

248.01 was divisible and the modified categorical approach should 

apply. 

The BIA affirmed the IJ’s decision that Daye was removable 

on CIMT grounds under both INA § 237(a)(2)(A)(i) and (ii), 8 

U.S.C. § 1227(a)(2)(A)(i) and (ii). Stressing that it had long held that 

“participation in illicit drug trafficking is a CIMT,” the BIA agreed 

with the IJ that a violation of Va. Code Ann. § 18.2-248.01 was 

categorically a CIMT. The BIA did not address or disturb the IJ’s 

divisibility ruling. 

II. DISCUSSION 

A. Crime Involving Moral Turpitude under the INA

An alien is removable if he or she has been convicted of a 

felony CIMT within five years after admission or has been convicted of two or more CIMTs not arising out of a single scheme at 

any time after admission. INA § 237(a)(2)(A)(i)-(ii), 8 U.S.C. 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 6 of 17
20-14340 Opinion of the Court 7

§ 1227(a)(2)(A)(i)-(ii).

2

 The phrase “moral turpitude” is not defined 

in the INA. 

This Court has ruled that moral turpitude means an “act of 

baseness, vileness, or depravity in the private and social duties 

which a man owes to his fellow men, or to society in general, 

contrary to the accepted and customary rule of right and duty 

between man and man.” Cano v. U.S. Att’y Gen., 709 F.3d 1052, 

1053 (11th Cir. 2013) (quotation marks omitted). Similarly, the BIA 

has defined “moral turpitude” to mean “conduct that is inherently 

base, vile, or depraved” and has said that “[t]o involve moral 

turpitude, a crime requires two essential elements: reprehensible 

conduct and a culpable mental state.” In re Silva-Trevino, 26 I. & 

N. Dec. 826, 833-34 (BIA 2016) (quotation marks omitted); see

Zarate v. U.S. Att’y Gen., 26 F.4th 1196, 1200-01 (11th Cir. 2022)

(describing this Court’s definition of moral turpitude as similar to 

the BIA’s definition). This Court has given Chevron3 deference to 

the BIA’s definition of moral turpitude and “its application of that 

definition in precedential opinions.” See Zarate, 26 F.4th at 1201, 

1207. 

2 Whether a conviction qualifies as a CIMT under the INA is a legal question 

we review de novo. Lauture v. U.S. Att’y Gen., 28 F.4th 1169, 1172 (11th Cir. 

2022). Where, as here, the BIA affirmed the IJ and agreed with the IJ’s reasoning, we review the decisions of both the IJ and the BIA. See Gonzalez v. U.S. 

Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).

3 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 

2778 (1984).

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 7 of 17
20-14340 Opinion of the Court 8

“Consistent with the two elements identified by the BIA,” 

this Court has concluded that “a crime involving moral turpitude 

must involve conduct that not only violates a statute but also 

independently violates a moral norm.” Id. at 1201 (quotation 

marks omitted). We have identified two classes of crimes 

involving moral turpitude: (1) fraud offenses, which based on 

Supreme Court precedent are “categorically deemed to involve 

moral turpitude”; and (2) “non-fraud offenses” that “must also 

satisfy the ‘inherently base, vile, or depraved’ requirement to 

constitute CIMTs.” Id. at 1201-02 (citing De George, 341 U.S. at

232, 71 S. Ct. at 708). “[I]t is inappropriate to conflate the BIA’s two 

requirements in non-fraud scenarios so that one (a culpable mental 

state) automatically satisfies the other (moral reprehensibility).” 

Id. at 1207-08 (concluding the BIA erred “by collapsing the two 

requirements of moral turpitude into one”). That said, “one can 

inform the other.” Id.

The BIA has long held that drug trafficking offenses 

constitute CIMTs. For instance, in In re Khourn, the BIA 

concluded that distribution of cocaine, in violation of 21 U.S.C. 

§ 841(a), is a CIMT. 21 I. & N. Dec. at 1041. In Khourn, the BIA 

reasoned that § 841(a), unlike “a statute that was regulatory,” is a 

criminal statute that “clearly requires a mental state of knowledge 

or intent.” Id. at 1045-46. Additionally, “an evil intent”—i.e., moral 

reprehensibility—is “inherent in the crime of distribution of a 

controlled substance” under § 841(a). Id. at 1047; see also In re 

Acosta, 27 I. & N. Dec. 420, 422-24 (BIA 2018) (concluding 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 8 of 17
20-14340 Opinion of the Court 9

attempted criminal sale of a controlled substance under New York 

law constitutes a CIMT); In re Gonzalez Romo, 26 I. & N. Dec. 

743, 745-46 (BIA 2016) (concluding solicitation to possess 

marijuana for sale under Arizona law constitutes a CIMT). 

As to moral reprehensibility, the BIA in Khourn stressed that 

“Congress” had “explained in legislative history” that “few criminal 

acts . . . are more reprehensible than the act of abetting drug 

addiction by engaging in the illicit narcotic and marihuana 

trafficking.” 21 I. & N. Dec. at 1046 (quoting H.R. Rep. No. 84-

2388, at 11(1956)). The BIA observed that while there was 

disagreement as to whether “mere possession of controlled 

substances” involved moral turpitude, “both Federal and State 

courts concur that participation in illicit drug trafficking is a crime 

involving moral turpitude.” Id. at 1046-47 (listing federal and state 

precedent finding that participation in the sale of illicit drugs is 

“depraved” and “morally indefensible,” “involves the intent to 

corrupt others,” and “contributes to the physical harm of the 

purchaser”); see also Acosta, 27 I. & N. Dec. at 423 (rejecting 

argument that “the intent in selling a drug may not be evil” where 

the state law prohibiting the unauthorized sale of drugs was 

enacted to prevent societal harm). 

Consistent with the BIA, our sister circuits that have 

addressed the issue have also concluded that drug trafficking 

offenses have the requisite culpable mental state and moral 

reprehensibility to constitute CIMTs. See Mota v. Barr, 971 F.3d 

96, 99-101 (2d Cir. 2020) (addressing felony possession of narcotics 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 9 of 17
20-14340 Opinion of the Court 10

with intent to sell under Connecticut law); Guevara-Solorzano, 891 

F.3d at 128, 135-36 (addressing unlawful possession of marijuana 

with intent to manufacture, deliver, or sell under Tennessee law); 

Barragan-Lopez v. Mukasey, 508 F.3d 899, 903-04 (9th Cir. 2007) 

(addressing solicitation to possess over four pounds of marijuana 

for sale under Arizona law). 

B. Categorical Approach

Here, the IJ concluded that Va. Code Ann. § 18.2-248.01 is 

not divisible and that the categorical approach applies. As noted 

earlier, the BIA did not address or disturb that ruling. In their initial 

merits briefs filed with this Court, the parties do not dispute the IJ’s 

divisibility determination and instead argue about whether under 

the categorical approach a violation of the Virginia statute 

constitutes a CIMT. Therefore, we do not address the divisibility 

of Va. Code Ann. § 18.2-248.01 and assume for purposes of this 

petition for review that we apply the categorical approach.4

4 For the first time in supplemental briefing, the government argued that Va. 

Code Ann. § 18.2-248.01 is divisible and the modified categorical approach 

applies. We decline to address divisibility because the government’s initial 

brief failed to raise divisibility. See United States v. Nealy, 232 F.3d 825, 830 

(11th Cir. 2000). In any event, as discussed later, even the least culpable acts 

under Va. Code Ann. § 18.2-248.01 categorically constitute a CIMT. See Gelin

v. U.S. Att’y Gen., 837 F.3d 1236, 1243 (11th Cir. 2016) (declining to address 

the “divisibility question” where the least culpable conduct under the statute 

of conviction categorically constituted a CIMT “in any event”). 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 10 of 17
20-14340 Opinion of the Court 11

Under the categorical approach, we “ask whether the least 

culpable conduct necessary to sustain a conviction under the 

statute meets the standard of a crime involving moral turpitude.” 

Zarate, 26 F.4th at 1199 (quotation marks omitted); see also Cano, 

709 F.3d at 1053 n.3. In determining whether an offense constitutes 

a CIMT, “we ‘may rely on court decisions in the convicting 

jurisdiction that interpret the meaning of the statutory language.’” 

Smith v. U.S. Att’y Gen., 983 F.3d 1206, 1210 (11th Cir. 2020)

(quoting Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1243 (11th Cir. 

2016)). We begin with the Virginia statute of conviction and the 

elements of the offense and then compare them to the two 

requirements for a CIMT.5

Virginia Code § 18.2-248.01 makes it a felony for:

[A]ny person to transport into the Commonwealth by 

any means with intent to sell or distribute one ounce 

or more of cocaine, coca leaves or any salt, 

compound, derivative or preparation thereof as 

described in Schedule II of the Drug Control Act or 

one ounce or more of any other Schedule I or II 

controlled substance or five or more pounds of 

marijuana.

5 Daye agrees that his petition for review stands or falls on whether the 

substantive offense of transportation categorically constitutes a CIMT because 

in immigration proceedings inchoate offenses such as conspiracy qualify as a 

CIMT if the underlying substantive offense qualifies as a CIMT. See In re 

Gonzalez Romo, 26 I. & N. Dec. at 743, 746. 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 11 of 17
20-14340 Opinion of the Court 12

Va. Code Ann. § 18.2-248.01. 

Virginia courts have concluded that “[t]he plain and obvious 

meaning of [Va.] Code § 18.2-248.01 is to prohibit the 

transportation of illegal substances into Virginia by a person whose 

intent is to distribute those substances.” Washington v. 

Commonwealth, 597 S.E.2d 256, 305-06 (Va. Ct. App. 2004) 

(cleaned up). To convict a defendant of violating Va. Code Ann. 

§ 18.2-248.01, the state must prove the defendant transported “by 

any means” one of the illegal substances identified in the statute 

with the intent to distribute it. Seke v. Commonwealth, 482 S.E.2d 

88, 89-90, 91 (Va. Ct. App. 1997) (quoting Va. Code Ann. § 18.2-

248.01).

6

 

We readily conclude that even the least culpable conduct 

that violates this Virginia drug statute categorically constitutes a 

CIMT. As to culpable mental state, Va. Code Ann. § 18.2-248.01 

requires that the defendant have the intent to distribute to others 

the illegal substance he has transported into Virginia. The intent 

to traffic an illegal substance satisfies the mens rea requirement for 

a CIMT. 

6 The state, however, “is not required to prove the place where a defendant 

intends to distribute illegal substances in order to obtain a conviction” because 

the statute “contains no express geographical limitation applicable to the intent element.” Seke, 482 S.E.2d at 90. “[A] violation of [Va.] Code § 18.2-

248.01 occurs the moment a person transporting illegal substances penetrates 

the borders of the Commonwealth.” Green v. Commonwealth, 528 S.E.2d 

187, 192 (Va. Ct. App. 2000).

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 12 of 17
20-14340 Opinion of the Court 13

As to moral reprehensibility, transporting an illegal 

substance with the intent to distribute it is inherently base, vile, or 

depraved conduct. We agree with the BIA and our sister circuits 

that, given the profound societal harms caused by drug abuse and 

unlawful drug distribution, participating in illicit drug trafficking, 

including by transporting the drugs to be trafficked with intent to 

distribute, is reprehensible conduct.

What Daye views as the least culpable conduct covered by 

Va. Code Ann. § 18.2-248.01 has been something of a moving 

target. He appears to have settled on the act of transporting five or 

more pounds of marijuana through Virginia with the intent to 

distribute it in another state where its distribution is lawful with a 

license. Daye contends this conduct is not a CIMT because, in light 

of evolving societal views on marijuana, that conduct “can no 

longer be said to violate societal norms.” 

Daye points to the fact that Virginia, along with many other 

states, recently decriminalized the possession of small amounts of 

marijuana for either medical or personal use. See Va. Code Ann. 

§§ 4.1-1100(A), 54.1-3408.3, 54.1-3442.7, 54.1-3442.8.

7

 That some 

7 In July 2021, Virginia legalized simple possession of one ounce or less of marijuana by persons who are at least 21 years of age. See Va. Code Ann. § 4.1-

1100(A); see also Va. Acts 2021, Sp. S. 1, chap. 550 (“Acts 2021”), cl. 1 at 155, 

cl. 3 at 279. Possession of amounts over one ounce is subject to a civil penalty,

but possession of more than one pound of marijuana remains a felony offense. 

Va. Code Ann. § 4.1-1100(B),(C). It also remains illegal to sell, possess with 

intent to sell, or distribute any amount of marijuana in Virginia and to 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 13 of 17
20-14340 Opinion of the Court 14

states allow possession of small amounts of marijuana is irrelevant 

to whether trafficking large amounts of it involves moral turpitude. 

In any event, Virginia, like many states, continues to criminalize 

possession of larger amounts of marijuana. See Va. Code Ann.

§ 4.1-1100(C); see also, e.g., Colo. Rev. Stat. § 18-18-406(4); Cal 

Health & Safety Code § 11357; Rev. Code Wash. § 69.50.4014. And 

Virginia continues to prohibit, and prosecute as a felony, marijuana 

trafficking, including selling, giving, distributing, or possessing 

with intent to sell, give, or distribute more than one ounce of 

marijuana, and transporting five or more pounds of marijuana with 

the intent to distribute. Va. Code Ann. §§ 18.2-248.1(2), 18.2-

248.01. Whatever might be said about personal use of small 

amounts of marijuana, Daye has not shown a corresponding 

change in society’s views about trafficking marijuana in larger

amounts. 

Alternatively, Daye suggests the least culpable conduct is 

transporting into Virginia a substance on Virginia’s list of 

controlled substances but not on the federal list of controlled 

substances.

8

 Daye contends such substances are “harmless,”

transport five pounds or more of marijuana into the state. Va. Code Ann. 

§§ 18.2-248.1, 18.2-248.01. 

8 Virginia codifies its Schedule I and Schedule II lists of controlled substances 

in provisions of the Drug Control Act, Va. Code Ann. § 54.1-3446 and § 54.1-

3448, respectively. While there is some dispute as to the number of 

substances, the parties agree that at the time of Daye’s convictions, Virginia’s 

Schedule I listed some substances that the federal schedules did not. 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 14 of 17
20-14340 Opinion of the Court 15

making their transportation into Virginia a mere regulatory offense

similar to transporting alcohol or cigarettes. See In re J-, 2 I. & N. 

Dec. 99, 104-05 (BIA 1944) (holding that unlawful sale of alcohol to 

Native Americans who are wards of the government in violation 

of a federal statute that had no mens rea requirement was a 

regulatory offense and not a CIMT).

Virginia, by listing a particular substance in one of its 

schedules, has determined that the substance has a high potential 

for abuse and poses a risk to public health if it is left uncontrolled. 

See Va. Code Ann. §§ 54.1-3443, 54.1-3445, 54.1-3447. The fact that 

the federal government has not listed the same substance does not 

establish that the substance is per se “harmless.” As the 

government points out, both state governments and the federal 

government must periodically add substances to their schedules in 

an effort to keep up with underground chemists who search out 

and use new chemicals to circumvent drug laws. The federal 

government prosecutes some of the substances listed in the 

Virginia schedules as analogues or isomers of federally listed 

substances. See 21 U.S.C. § 813; see e.g., United States v. Phifer, 

909 F.3d 372, 375-81 (11th Cir. 2018) (involving a conviction for 

possession with intent to distribute ethylone, a non-listed 

substance, as an isomer of butylone, a temporarily listed 

substance); United States v. Achey, 943 F.3d 909, 912 (11th Cir. 

2019) (involving a conspiracy to distribute and possess with intent 

to distribute tetrahydrofuran fentanyl, an analogue of fentanyl, a 

Schedule II controlled substance). We will not second guess 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 15 of 17
20-14340 Opinion of the Court 16

Virginia’s determination that the substances it has listed are 

potentially harmful to others if left uncontrolled solely on the basis

that the federal government has not also listed, or has delisted,

those substances. Daye’s argument that transportation with intent 

to distribute a non-federally controlled substance into Virginia 

amounts to only a regulatory offense, and not a CIMT, is without 

merit.

C. Vagueness Challenge

Daye argues that the statutory phrase “crime involving 

moral turpitude” in the INA is unconstitutionally vague in light of 

the Supreme Court’s decisions in Johnson v. United States, 576 U.S. 

591, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 584 U.S. ___, 

138 S. Ct. 1204 (2018).9

 In Jordan v. DeGeorge, the Supreme Court 

held that the phrase “crime involving moral turpitude” was not 

unconstitutionally vague. 341 U.S. at 231-32, 71 S. Ct. at 708. We 

are bound by De George. Zarate, 26 F.4th at 1200 & n.2. Johnson

and Dimaya addressed different federal statutes with different 

statutory phrases and therefore do not permit this Court to deviate 

from De George. SeeUnited States v. Thomas, 242 F.3d 1028, 1035 

(11th Cir. 2001) (explaining this Court is bound to follow Supreme 

Court precedent “until the Supreme Court itself overrules that 

decision”).

9 We review constitutional questions de novo. Poveda v. U.S. Att’y Gen., 692 

F.3d 1168, 1172 (11th Cir. 2012). 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 16 of 17
20-14340 Opinion of the Court 17

III. CONCLUSION 

For the foregoing reasons, we conclude the BIA did not err 

in determining that Daye’s convictions for violating, and 

conspiring to violate, Va. Code Ann. § 18.2-248.01 were

categorically CIMTs. As a consequence, the BIA properly 

determined that Daye was removable pursuant to INA 

§ 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), and 237(a)(2)(A)(ii), 8 

U.S.C. § 1227(a)(2)(A)(ii).

PETITION DENIED. 

USCA11 Case: 20-14340 Date Filed: 07/06/2022 Page: 17 of 17