[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

__________________________

No. 15-13223

__________________________

Agency No. A045-874-205

JOSE EMILIO ULLOA FRANCISCO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

__________________________

Petition for Review of a Decision of the 

Board of Immigration Appeals

__________________________

(March 12, 2018)
2

Before TJOFLAT and WILSON, Circuit Judges, and ROBRENO,* District Judge.

TJOFLAT, Circuit Judge:

The Armed Career Criminal Act (“ACCA”) provides that a person convicted 

of violating 18 U.S.C. § 922(g) faces an enhanced sentence if he or she has three 

previous convictions for “violent felon[ies].”1

 To determine whether a conviction 

qualifies as a violent felony, a court may look “only to the statutory definition[] of 

the prior offense[], and not to the particular facts underlying th[e] conviction[].” 

Taylor v. United States, 495 U.S. 575, 600, 110 S. Ct. 2143, 2159 (1990). In some 

cases, the statute under which the defendant was convicted contains multiple 

offenses—some that are violent felonies and some that are not. This means that 

the statute is divisible. Descamps v. United States, 570 U.S. 254, 257, 133 S. Ct. 

2276, 2281 (2013). In such cases, the Government must prove that the conviction 

qualified as a violent felony. To do so, it may introduce limited parts of the record 

of the conviction.2

 Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 

1263 (2005) (plurality opinion). If these parts, which we refer to as Shepard 

 

* Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of 

Pennsylvania, sitting by designation. 

1 18 U.S.C. § 924(e)(1). The ACCA also provides for an enhancement if a person has 

committed three or more “serious drug offense[s].” Id. § 924(e)(1). The statute defines both 

“violent felony” and “serious drug offense.” Id. § 924(e)(2)(A)–(B). 

2 The Government is limited to “the terms of the charging document, the terms of a plea 

agreement or transcript of colloquy between judge and defendant in which the factual basis for 

the plea was confirmed by the defendant, or to some comparable judicial record of this 

information.” Shepard, 544 U.S. at 26, 125 S. Ct. at 1263. Ordinarily, these items are not in 

dispute and thus are subject to judicial notice. 
3

documents, do not identify the offense of conviction, the Government has failed to 

carry its burden of proof, and it is presumed that the conviction was for an offense

that did not qualify as a violent felony.3

 Johnson v. United States, 559 U.S. 133, 

137, 130 S. Ct. 1265, 1269 (2010). 

This same presumption applies in proceedings brought by the Attorney 

General (“AG”) under the Immigration and Nationality Act (“INA”) to remove an 

alien from the United States on the ground that the alien, after admission into the 

country, had been convicted of an offense designated in the INA. See INA 

§ 237(a)(2); 8 U.S.C. § 1227(a)(2). If the alien was convicted under a divisible 

statute, one which contains both designated offenses and non-designated offenses, 

the AG may prove that the alien’s conviction qualified as one of the designated 

offenses by introducing Shepard documents.4 Moncrieffe v. Holder, 569 U.S. 184, 

 

3 This is so even though the defendant as a matter of fact was convicted of a crime that 

did qualify as a violent felony.

4 The INA expressly permits the Government to use an enumerated set of documents:

[A]ny of the following documents or records (or a certified copy of 

such an official document or record) shall constitute proof of a 

criminal conviction:

(i) An official record of judgment and conviction.

(ii) An official record of plea, verdict, and sentence.

(iii) A docket entry from court records that indicates the existence 

of the conviction.

(iv) Official minutes of a court proceeding or a transcript of a court 

hearing in which the court takes notice of the existence of the 

conviction.
4

191–92, 133 S. Ct. 1678, 1684–85 (2013). If the AG fails to do so, it is presumed 

that the alien was convicted of a non-designated offense. Id. This is referred to as 

the Moncrieffe presumption. See, e.g., Sauceda v. Lynch, 819 F.3d 526, 531–32 

(1st Cir. 2016).

In the case before us, the AG proved that the alien, a lawful permanent 

resident, was removable for having been convicted of a felony related to drug 

trafficking. INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). After his removal 

was ordered, the alien petitioned the AG to cancel the removal. To be eligible for 

such discretionary relief, the alien had to prove that he had not previously been 

convicted of an “aggravated felony,” as the INA defines that term. INA 

§ 240A(a)(3); 8 U.S.C. § 1229b(a)(3). 

 

(v) An abstract of a record of conviction prepared by the court in 

which the conviction was entered, or by a State official associated 

with the State’s repository of criminal justice records, that 

indicates the charge or section of law violated, the disposition of 

the case, the existence and date of conviction, and the sentence.

(vi) Any document or record prepared by, or under the direction of, 

the court in which the conviction was entered that indicates the 

existence of a conviction.

(vii) Any document or record attesting to the conviction that is 

maintained by an official of a State or Federal penal institution, 

which is the basis for that institution’s authority to assume custody 

of the individual named in the record.

INA § 240(c)(3)(B); 8 U.S.C. § 1229a(c)(3)(B). Shepard evidence encompasses all of 

these items since they are judicially noticeable. See supra note 2.
5

The state statute under which the alien had been convicted created the felony 

of “trafficking in cocaine,” which was defined to include the selling, purchasing, 

manufacturing, delivering, or possessing of cocaine, or the bringing of cocaine into 

Florida. Fla. Stat. § 893.135(1)(b)1.c. The alien admitted that these alternative 

conduct elements created separate crimes, some of which fell under the definition 

of an aggravated felony and some which did not. He argued that because the AG 

had not shown that he had been convicted of one of the crimes constituting an 

aggravated felony, the Moncrieffe presumption applied and required the 

immigration court to find that he had been convicted of an offense that was not an 

aggravated felony. 

The Board of Immigration Appeals (“BIA”) agreed that the state statute 

created separate crimes, some of which were aggravated felonies and some of 

which were not. It then rejected the alien’s argument—holding that he had the

burden to prove that his conviction was not for an aggravated felony—and denied 

his application for cancellation of removal. The alien now petitions us to review 

the BIA’s decision. A recent decision of this Court binds us to hold that the alien

did not commit an aggravated felony because the state statute under which he was 

convicted is neither divisible nor has a categorical match in the Controlled 

Substance Act (“CSA”). See Cintron v. U.S. Attorney Gen., No. 15-12344, 2018 
6

WL 947533, at *6 (11th Cir. Feb. 20, 2018). We therefore grant the alien’s

petition, vacate the BIA’s decision, and remand the case for further proceedings.

I.

The INA authorizes the AG to remove from the United States any alien who, 

at any time after admission, was convicted of certain felonies, including the 

violation of a law “relating to a controlled substance” and the commission of an 

“aggravated felony.” INA § 237(a)(2)(A)(iii), (a)(2)(B)(i); 8 U.S.C. 

§ 1227(a)(2)(A)(iii), (a)(2)(B)(i). To obtain the alien’s removal, the AG must 

prove a conviction of one of these felonies by clear and convincing evidence. INA 

§ 240(c)(3)(A); 8 U.S.C. § 1229a(c)(3)(A).5

If an immigration court issues an order of removal, a permanent resident 

may petition the AG to cancel the removal. INA § 240A(a); 8 U.S.C. § 1229b(a). 

The AG may exercise his discretion to grant such relief if the alien satisfies three 

requirements, one being that the alien “has not been convicted of any aggravated 

felony.”6

 INA § 240A(a)(3); 8 U.S.C. § 1229b(a)(3). The alien has the burden 

 5 The INA states: 

In the proceeding the [Government] has the burden of establishing 

by clear and convincing evidence that, in the case of an alien who 

has been admitted to the United States, the alien is deportable. No 

decision on deportability shall be valid unless it is based upon 

reasonable, substantial, and probative evidence. 

INA § 240(c)(3)(A); 8 U.S.C. § 1229a(c)(3)(A). 

6 The INA states:
7

both to establish these “eligibility requirements” and to show that he or she “merits 

a favorable exercise of discretion,”7 INA § 240(c)(4)(A), 8 U.S.C. 

§ 1229a(c)(4)(A), by a “preponderance of the evidence,” 8 C.F.R. § 1240.8(d).8

 

The INA defines the term “aggravated felony” in a seemingly interminable 

list of offenses. See INA § 101(a)(43); 8 U.S.C. § 1101(a)(43). The list includes 

“illicit trafficking in a controlled substance” and “drug trafficking crime[s]” as

 

The Attorney General may cancel removal in the case of an alien 

who is inadmissible or deportable from the United States if the 

alien—

(1) has been an alien lawfully admitted for permanent residence for 

not less than 5 years,

(2) has resided in the United States continuously for 7 years after 

having been admitted in any status, and

(3) has not been convicted of any aggravated felony.

INA § 240A(a)(1)–(3); 8 U.S.C. § 1229b(a)(1)–(3).

7

 The INA states:

An alien applying for relief or protection from removal has the 

burden of proof to establish that the alien—

(i) satisfies the applicable eligibility requirements; and

(ii) with respect to any form of relief that is granted in the exercise 

of discretion, that the alien merits a favorable exercise of 

discretion.

INA § 240(c)(4)(A); 8 U.S.C. § 1229a(c)(4)(A).

8 The regulation states:

Relief from removal. The respondent shall have the burden of 

establishing that he or she is eligible for any requested benefit or 

privilege and that it should be granted in the exercise of discretion. 

If the evidence indicates that one or more of the grounds for 

mandatory denial of the application for relief may apply, the alien 

shall have the burden of proving by a preponderance of the 

evidence that such grounds do not apply.

8 C.F.R. § 1240.8(d).
8

defined under federal law.9

 INA § 101(a)(43)(B); 8 U.S.C. § 1101(a)(43)(B). A 

state crime constitutes an aggravated felony for illicit trafficking in a controlled 

substance only if the conduct it proscribes is punishable as a felony under federal 

law. Lopez v. Gonzales, 549 U.S. 47, 60, 127 S. Ct. 625, 633 (2006). 

The Supreme Court has constructed a framework—with roots in both 

immigration and criminal law—to determine when a state crime constitutes an 

aggravated felony. See Mellouli v. Lynch, 575 U.S. —, 135 S. Ct. 1980, 1986–87 

(2015). The framework was designed for cases in which the Government seeks the 

removal of an alien under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)

for having been convicted of an “aggravated felony,” and the immigration court 

 

9 The INA defines the term “aggravated felony” as “illicit trafficking in a controlled 

substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in 

section 924(c) of Title 18).” INA 101(a)(43)(B); 8 U.S.C. § 1101(a)(43)(B). 

The BIA has defined “illicit trafficking in a controlled substance.” See Matter of Davis, 

20 I. & N. Dec. 536, 540–41 (BIA 1992). The term “illicit” means “not permitted or allowed; 

prohibited; unlawful; as an illicit trade.” Id. at 541 (quotation omitted). It thus “simply refers to 

the illegality of the trafficking activity.” Id. 

The BIA takes “[t]rafficking” to mean “[t]rading or dealing in certain goods.” Id. 

(quotation omitted). It has stated that trafficking is a term “commonly used in connection with 

illegal narcotic sales.” Id. (quotation omitted). “Essential to the term in this sense is its business 

or merchant nature, . . . although only a minimum degree of involvement may be sufficient under 

the precedents of this Board to characterize an activity as ‘trafficking’ or a participant as a 

‘trafficker.’” Id.

The BIA therefore defined “illicit trafficking in a controlled substance” to be “unlawful 

trading or dealing of any controlled substance as defined in section 102 of the Controlled 

Substances Act.” Id. It further noted that illicit trafficking in a controlled substance includes any 

“drug trafficking crime” as defined in 18 U.S.C. § 924(c)(2). Matter of Davis, 20 I. & N. Dec. at

542. “A ‘drug trafficking crime’ . . . is ‘any felony punishable under’ the [CSA].” Id. 
9

has to decide whether the alien’s state conviction qualified as one.

10 The 

framework presents two approaches: the categorical approach, which poses a 

question of law,11 and the modified categorical approach, which poses a mixed 

question of law and fact.12 We discuss each approach in turn.

A.

The categorical approach is used to decide whether the alien’s state 

conviction is of an offense “comparable to an offense listed in the INA.” 

Moncrieffe, 569 U.S. at 190, 133 S. Ct. at 1684. Under this approach, “the facts” 

underlying the conviction are ignored. Id. The immigration court looks “instead to 

whether ‘the state statute defining the crime of conviction’ categorically fits within 

the ‘generic’ federal definition of a corresponding aggravated felony.” Id. 

(quoting Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 186, 127 S. Ct. 815, 818 

(2007)). The question is whether “the state statute shares the nature of the federal 

 

10 The framework also applies to cases in which the Government seeks the removal of an 

alien under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted for 

violating a state law “relating to a controlled substance.” 

11 The question is whether “the state offense is comparable to an offense listed in the 

INA.” Moncrieffe, 569 U.S. at 190, 133 S. Ct. at 1684; see Mellouli, 575 U.S. at —, 135 S. Ct. at 

1987 (noting that the categorical approach focuses on a “legal question of what a conviction 

necessarily established” (emphasis in original)). 

12 Where the alien’s conviction does not indicate which of the offenses the alien 

committed—an offense that has an aggravated felony analogue or one that does not—the 

immigration court’s decision turns on the probative value of the Government’s Shepard 

evidence. It thus requires findings of fact. The goal of this fact finding is to determine whether 

the alien was convicted of an offense that has a federal analogue. 
10

offense that serves as a point of comparison.” Moncrieffe, 569 U.S. at 190, 133 S. 

Ct. at 1684. This involves a comparison of the elements of the state offense and 

the federal offense to see if they match. See Mathis v. United States, 579 U.S. —, 

136 S. Ct. 2243, 2248 (2016). After determining that the offenses categorically 

match, the court must “presume that the conviction ‘rested upon nothing more than 

the least of the acts’ criminalized.” Moncrieffe, 569 U.S. at 190–91, 133 S. Ct. at 

1684 (alterations omitted) (quoting Johnson, 559 U.S. at 137, 130 S. Ct. at 1269). 

The Supreme Court developed the categorical approach to promote 

efficiency in removal proceedings by prohibiting the relitigation of “past 

convictions in minitrials conducted long after the fact.” Moncrieffe, 569 U.S. at 

200–01, 133 S. Ct. at 1690. The approach eliminates the necessity of a factual 

inquiry that would unduly burden the administration of immigration law, especially 

given that the alien’s conviction may have occurred years prior to the removal 

proceeding. Mellouli, 575 U.S. at —, 135 S. Ct. at 1986–87. The categorical 

approach also “enables aliens to anticipate the immigration consequences of guilty 

pleas in criminal court.” Id. at 1987 (quotation omitted). 

B.

The Supreme Court has modified the categorical approach where the 

criminal statute is “a so-called ‘divisible statute.’” Descamps, 570 U.S. at 257, 133 

S. Ct. at 2281. A divisible statute is one that “sets out one or more elements of the 
11

offense in the alternative.” Id.; see Donawa v. U.S. Attorney Gen., 735 F.3d 1275,

1281 (11th Cir. 2013) (stating that a statute is divisible when it “lists a number of 

alternative elements that effectively create several different crimes”). In Mathis v. 

United States, the Supreme Court made clear that the modified categorical 

approach applies only to statutes that list alternative elements and so create

multiple crimes, not to statutes that list alternative means through which to satisfy 

a single element.

13 136 S. Ct. at 2247–48. 

Thus, if a statutory offense merely lists alternative means to commit an 

element of a single crime, a court must perform the categorical analysis and “ask 

only whether the elements of the state crime and generic offense make the requisite 

match.”14 Id. at 2256 (emphasis in original). To determine whether a statute 

contains alternative elements or means, a court may look at the statutory text and 

“authoritative sources of state law.” Id. However, “if state law fails to provide 

clear answers, federal judges have another place to look: the record of a prior 

 

13 The Court defined elements as “constituent parts of a crime’s legal definition—the 

things the prosecution must prove to sustain a conviction.” Mathis, 579 U.S. —, 136 S. Ct. at 

2248 (quotation omitted). “At a trial, they are what the jury must find beyond a reasonable doubt 

to convict the defendant . . . and at a plea hearing, they are what the defendant necessarily admits 

when he pleads guilty.” Id. 

14 The reason for this rule is that when a list “merely specifies diverse means of satisfying 

a single element of a single crime—or otherwise said, spells out various factual ways of 

committing some component of the offense—a jury need not find (or a defendant admit) any 

particular item.” Id. at 2249. As a result, “[s]tatements of ‘non-elemental fact’ in the records of 

prior convictions are prone to error precisely because their proof is unnecessary.” Id. at 2253

(quoting Descamps, 570 U.S. at 270, 133 S. Ct. 2289). The Court thus sought to “avoid 

unfairness to defendants” by limiting the modified categorical approach to statutes that contain 

multiple crimes, not alternative means to satisfy an element. Id.
12

conviction itself.” Id. Where an indictment reiterates “all the terms of” a statute 

with alternatives, it “is as clear an indication as any that each alternative is only a 

possible means of commission, not an element that the prosecutor must prove to a 

jury beyond a reasonable doubt.” Id. at 2257. 

If a statute is determined to be divisible after this analysis, the Government 

may present “a limited class of documents” to establish the offense the alien 

committed and therefore the ground for removal. Spaho v. U.S. Attorney Gen., 837 

F.3d 1172, 1177 (11th Cir. 2016) (quoting Descamps, 570 U.S. at 257, 133 S. Ct. 

at 2281). Specifically, the Government may introduce the “trial record—including 

charging documents, plea agreements, transcripts of plea colloquies, findings of 

fact and conclusions of law from a bench trial, and jury instructions and verdict 

forms.” Johnson, 559 U.S. at 144, 130 S. Ct. at 1273.

After the Government has presented these items and established the crime 

the alien committed, the court must “do what the categorical approach demands: 

compare the elements of the crime of conviction (including the alternative element 

used in the case) with the elements of the generic crime.”15 Descamps, 570 U.S. at

257, 133 S. Ct. at 2281. Therefore, the modified categorical approach allows the 

 

15 If the elements match, it is “presume[d] that the conviction ‘rested upon nothing more 

than the least of the acts’ criminalized.” Moncrieffe, 569 U.S. at 190–91, 133 S. Ct. at 1684 

(alterations omitted) (quoting Johnson, 559 U.S. at 137, 130 S. Ct. at 1269). 
13

court to consider a limited set of documents to identify the crime of conviction and 

thus “implement the categorical approach.” Id. at 263, 133 S. Ct. at 2285. 

II.

Jose Emilio Ulloa Francisco is a native and citizen of the Dominican 

Republic. He was admitted into the United States as a permanent resident on 

October 5, 1997. 

On January 13, 2010, Francisco was arrested by the North Miami Beach 

Police Department in a sting operation after he gave an undercover police officer 

$30,000 as partial payment for ten kilograms of cocaine at a price of $21,000 per 

kilogram.16 Four weeks later, on February 3, the Assistant State Attorney of 

Miami-Dade County filed a two-count Information in the Miami-Dade County 

Circuit Court charging Francisco with drug trafficking. Count 1 alleged that 

Francisco violated Fla. Stat. § 893.135(1)(b)1.c, which makes it unlawful to sell, 

 

16 The affidavit the arresting officer filed in support of a Complaint issued on the same

day described the circumstances of Francisco’s arrest.

[On January 13, 2010, at 3:10 PM], the defendant Jose Ulloa 

[Francisco] and an unknown co-defendant met with an undercover 

agent of the [North Miami Beach Police Department] to negotiate a 

cocaine deal. Ulloa & the co-defendant negotiated to purchase ten 

kilograms of cocaine for $21,000 per kilogram. At approximately 

1510 hours, Ulloa arrived at the Pep Boys Parking lot, [295 N.E. 

167th St. in North Miami Beach,] and showed the agent a large 

amount of U.S. currency. Ulloa responded to the NMBPD 

undercover location and gave the agent $30,000 in U.S. currency 

as a down payment for cocaine. Ulloa was placed under arrest for 

trafficking in cocaine. The total weight of kilogram including 

packaging was approximately 1027.4 grams. Ulloa was 

transported to NMBPD/DCJ for processing. 
14

purchase, manufacture, deliver, or bring cocaine into Florida or to knowingly 

possess cocaine. Count 2 alleged that Francisco violated Fla. Stat. §§ 777.04(3) 

and 893.135(5) by conspiring to commit the Count 1 offense.17 On September 10, 

 

17 The two counts read as follows: 

Count 1

JOSE E. FRANCISCO ULLOA, on or about January 13, 2010, in 

the County and State aforesaid, did unlawfully sell, purchase, 

manufacture, deliver, or bring into this state, or was knowingly in 

actual or constructive possession of cocaine, as described in s. 

893.03(2)(a)4, Florida Statutes, or any mixture containing cocaine, 

in the amount of four-hundred (400) grams or more, but less than 

one-hundred and fifty (150) kilograms of cocaine, or any mixture 

containing cocaine, in violation of s. 893.135(1)(b)1.c, Fla. Stat., 

contrary to the form of the Statute in such cases made and 

provided, and against the peace and dignity of the State of Florida.

Count 2

And the aforesaid Assistant State Attorney, under oath, further 

information makes JOSE E. FRANCISCO ULLOA, on or about 

January 13, 2010, in the County and State aforesaid, did 

unlawfully and feloniously agree, conspire, combine or 

confederate with another person or persons, to wit: VICTOR, to 

commit a felony under the laws of the State of Florida, to wit: 

unlawful Trafficking in Cocaine, or any mixture containing 

cocaine, as described in s. 893.135(5) and s. 777.04(3) and s. 

777.011, Fla. Stat., contrary to the form of the Statute in such cases 

made and provided, and against the peace and dignity of the State 

of Florida.

Fla. Stat. § 893.135(1)(b)1.c states, in pertinent part:

Any person who knowingly sells, purchases, manufactures, 

delivers, or brings into this state, or who is knowingly in actual or 

constructive possession of, 28 grams or more of cocaine, . . . but 

less than 150 kilograms of cocaine . . . commits a felony of the first 

degree, which felony shall be known as “trafficking in cocaine” . . . 

. If the quantity involved . . . [i]s 400 grams or more, but less than 

150 kilograms, such person shall be sentenced to a mandatory 

minimum term of imprisonment of 15 calendar years and pay a 

fine of $250,000.
15

2012, Francisco pled guilty to both counts pursuant to a plea agreement. The 

Circuit Court sentenced him to concurrent prison terms of three years to be 

followed by a three-year term of probation and imposed a fine of $250,000.18

On September 13, 2012, the Government served Francisco with a Notice to 

Appear (“NTA”). Based on his conviction on Count 1 of the Information, the 

NTA alleged that Francisco was removable under INA § 237(a)(2)(A)(iii), 8 

U.S.C. § 1227(a)(2)(A)(iii),19 as an alien convicted of an “aggravated felony,” a 

term defined to encompass “illicit trafficking in a controlled substance” and “drug 

trafficking crime[s],” INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).20

 

It is a first degree felony under Fla. Stat. § 893.135(5) to “conspire[] . . . to commit any act 

prohibited” by Fla. Stat. § 893.135(1). Under Fla. Stat. § 777.04(3), “[a] person who agrees, 

conspires, combines, or confederates with another person or persons to commit any offense 

commits the offense of criminal conspiracy.” Further, Fla. Stat. § 777.011 states:

Whoever commits any criminal offense against the state, whether 

felony or misdemeanor, or aids, abets, counsels, hires, or otherwise 

procures such offense to be committed, and such offense is 

committed or is attempted to be committed, is a principal in the 

first degree and may be charged, convicted, and punished as such, 

whether he or she is or is not actually or constructively present at 

the commission of such offense. 

18 As indicated in note 17, supra, Francisco faced on each of Counts 1 and 2 a mandatory 

minimum prison sentence of fifteen years, and a maximum sentence of sixty years. Florida’s

Sentencing Guidelines called for a minimum sentence of eleven years. The State waived the 

fifteen-year mandatory minimum, however, so the Guideline minimum of eleven years took

effect. The Court then departed downward from that minimum and imposed a prison term of 

three years. We assume the Court imposed that sentence because the plea agreement 

recommended it. 

19 The INA states: “Any alien who is convicted of an aggravated felony at any time after 

admission is deportable.” INA § 237(a)(2)(A)(iii); 8 U.S.C. § 1227(a)(2)(A)(iii).

20 See supra note 9.
16

A hearing on the removal charge was scheduled to come before an 

immigration judge (“IJ”) on February 27, 2013. The hearing, however, was 

rescheduled for April 24, 2013. During the hearing in April, Francisco’s attorney 

challenged the NTA charge, contending that Francisco’s Count 1 conviction did 

not meet the INA definition of an aggravated felony. The IJ ordered the parties to 

brief the issue and scheduled a hearing to resolve it for August 28, 2013. 

In the August hearing, the IJ, after considering the parties’ briefs and 

arguments, decided that the Count 1 conviction constituted a drug trafficking 

crime, and therefore an aggravated felony, because it was comparable to an offense 

in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). The IJ employed the 

categorical approach in reaching this decision.21 Because the Count 1 conviction 

was an aggravated felony, the IJ announced that she would order Francisco’s 

removal and deny his request for cancellation of removal. Faced with the IJ’s 

decision, Francisco’s attorney represented that Francisco would seek political 

asylum and withholding of removal under the United Nations Convention Against 

 

21 The IJ reasoned that “[Fla. Stat. § 893.135(1)(b)1.c] and certified criminal court 

documents” indicated that Francisco committed an aggravated drug trafficking offense within the 

aggravated felony definition. The IJ further noted that Francisco’s conviction involved a 

“commercial” element within the meaning of Lopez, 549 U.S. at 53, 127 S. Ct. at 630, which 

supported the finding that Francisco committed the aggravated felony of illicit trafficking in a 

controlled substance. 
17

Torture (“CAT”).22 The IJ continued the removal proceeding to November 27, 

2013, to enable counsel to make the case for CAT relief. 

On November 27, the IJ rendered her decision from the bench in open court. 

The IJ reiterated the conclusion she had reached in August that the Count 1 

conviction was a drug trafficking crime and therefore an aggravated felony. She

held that Francisco was ineligible for cancellation of removal for that reason. The 

IJ also ruled that Francisco was “ineligible to seek political asylum or withholding 

of removal” under the CAT. 

Francisco appealed the IJ’s decision to the BIA on December 20, 2013. He 

argued that his conviction could not amount to an aggravated felony because Fla. 

Stat. § 893.135(1)(b)1.c does not necessarily criminalize conduct that falls within 

the INA’s definition of “aggravated felony.” 

The BIA vacated the IJ’s decision on April 28, 2014. It did so after 

concluding that Fla. Stat. § 893.135(1)(b)1.c is divisible—meaning that it contains

offenses for which there were analogues in the INA definition of aggravated felony 

and offenses for which there were not. The BIA therefore held that the IJ erred by 

employing the categorical approach in determining whether, in pleading guilty to 

Count 1, Francisco pled guilty to an aggravated felony. It concluded that the IJ 

 

22 See 8 C.F.R. § 1208.16(c)(4) (“If the immigration judge determines that the alien is 

more likely than not to be tortured in the country of removal, the alien is entitled to protection 

under the Convention Against Torture.”). 
18

should have used the modified categorical approach instead. Since the IJ erred in 

this way, the BIA remanded the case with the instruction that the IJ employ the 

modified categorical approach in resolving the aggravated felony issue. 

On June 20, 2014, the Government amended the NTA to assert an additional 

ground of removability against Francisco. The amendment alleged that Francisco 

was removable for violating a “law or regulation of a State . . . relating to a 

controlled substance,” INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), 23

because of his conviction under Fla. Stat. § 893.135(1)(b)1.c. The Government

also alleged that Francisco’s conviction of conspiracy under Count 2 of the 

Information provided a separate ground of removal as either a conviction of an 

aggravated felony or a violation of a state law relating to a controlled substance. 

The IJ responded to the BIA’s remand on July 2, 2014. She ignored the 

BIA’s instruction to apply the modified categorical approach in determining 

whether Francisco had been convicted of a crime with an analogue in the INA’s 

definition of “aggravated felony.” She instead applied the categorical approach 

once more. This time, however, the IJ concluded that Francisco’s conviction under 

 

23 The INA states:

Any 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 802 of Title 

21), other than a single offense involving possession for one’s own 

use of 30 grams or less of marijuana, is deportable.

INA § 237(a)(2)(B)(i); 8 U.S.C. § 1227(a)(2)(B)(i).
19

Fla. Stat. § 893.135(1)(b)1.c did not constitute an aggravated felony. She reasoned 

that Donawa v. U.S. Attorney General, 735 F.3d at 1283—where we held that Fla. 

Stat. § 893.13(1)(a)

24 is not divisible—bound her to apply the categorical approach 

to Fla. Stat. § 893.135(1)(b)1.c. 

Applying that approach, the IJ observed that Fla. Stat. § 893.135(1)(b)1.c 

does not require proof that the defendant knew of the illicit nature of the controlled 

substance, whereas its federal analogue, 21 U.S.C. § 841(a)(1), requires it.25 The 

IJ concluded that because Fla. Stat. § 893.135(1)(b)1.c does not require the same 

mens rea as the federal analogue, Francisco was not convicted of an aggravated 

felony. Having so concluded, the IJ ruled that the Government failed to make a 

case for Francisco’s removability. After reaching these conclusions, the IJ stated 

that the removal proceeding was lodged in the wrong venue. The appropriate 

venue was the immigration court in Orlando, Florida, because Francisco was in 

 

24 This statute prohibits a person from “sell[ing], manufactur[ing], or deliver[ing], or 

possess[ing] with intent to sell, manufacture, or deliver, a controlled substance.” Fla. Stat. 

§ 893.13(1)(a). It does not criminalize mere possession as does Fla. Stat. § 893.135(1)(b)1.c. 

See Paccione v. State, 698 So. 2d 252, 254 (Fla. 1997). 

25 Section 841(a) states:

Except as authorized by this subchapter, it shall be unlawful for 

any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to 

manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to 

distribute or dispense, a counterfeit substance.

21 U.S.C. § 841(a).
20

federal custody there. Though the appropriate venue lay elsewhere, the IJ 

rescinded the removal order and certified her decision to the BIA. 

In arriving at her July 2, 2014 decision, the IJ did not consider the 

Government’s June 20, 2014 amendment to the NTA, which alleged an alternative 

ground of removability—namely that Francisco was removable for violating a 

“law or regulation of a State . . . relating to a controlled substance.” INA 

§ 237(a)(2)(B)(i); 8 U.S.C. § 1227(a)(2)(B)(i).26 The BIA, on September 10, 2014, 

therefore remanded the case to the immigration court in Orlando with the 

instruction that the court address the alternative ground of removability the 

Government alleged in its amended NTA.

On December 18, 2014, Francisco’s attorney filed on Francisco’s behalf an 

Application for Cancellation of Removal for Certain Permanent Residents. In the 

application, Francisco disclosed his convictions on Counts 1 and 2 of the 

Information, but stated that he “ha[d] not been convicted of an aggravated felony.” 

On January 13, 2015, Francisco signed the application in Orlando, before the IJ 

and under oath prior to the commencement of the removal hearing scheduled for

that day.

The purpose of the hearing on January 13 was to determine whether 

Francisco was removable on the NTA’s alternative ground and, if so, whether his 

 

26 On July 14, 2014, the Government moved the BIA to change the venue to Orlando, 

Florida and to remand the case for consideration of its alternate ground for removal. 
21

application for cancellation of removal should be granted. The IJ agreed with the 

Government that Francisco’s conviction under Fla. Stat. § 893.135(1)(b)1.c related

to a controlled substance and therefore found Francisco removable. The IJ next 

considered Francisco’s application for cancellation of removal. To prevail, 

Francisco had to prove that he was eligible for that relief—in particular, that he had 

not been convicted of an aggravated felony. The focus was on his conviction 

under Fla. Stat. § 893.135(1)(b)1.c.

In an effort to prove that the conviction was not an aggravated felony, 

Francisco testified. The following is the gist of his testimony. Jeson Rosa, whom 

Francisco had known as a “friend” for seventeen years, introduced him to a “guy” 

and said, “I want you to do this for me.” When Francisco asked what it was, Rosa 

said that he wanted Francisco to purchase a “packet” and “deliver” it to the man he 

had just met. Rosa gave Francisco $30,000, the amount needed for the purchase, 

and the man, whom Francisco soon discovered was an undercover police officer, 

drove him to “a warehouse.” They went inside the warehouse office, where 

“[t]hey showed [him] a pack of cocaine.” Francisco gave them the $30,000. He

was immediately arrested. 

The arresting officers asked him if he “wanted to [cooperate], work with 

them.” Francisco felt “nervous” and “called Jeson Rosa for them but [Rosa] never 
22

appeared.”27 When the arresting officers asked Francisco if he knew what he was 

doing when he gave them $30,000 for the package, he responded: “You know, I 

ha[d] an idea what I was doing.” He was attempting to purchase a large amount of 

cocaine.

Nevertheless, the IJ applied the modified categorical approach and invoked 

the Moncrieffe presumption to conclude that Francisco had been convicted of mere 

possession of cocaine,28 the least serious conduct criminalized by Fla. Stat. 

§ 893.135(1)(b)1.c, which did not fall within the INA’s definition of aggravated 

felony.29 Francisco was thus eligible for cancellation of removal.

30 At the close of 

the January 13, 2015 hearing, the IJ, in an exercise of discretion, cancelled 

Francisco’s removal based on his “equities” and “representations to the court.”31 

The Government appealed the IJ’s decision to the BIA. In its brief, it 

asserted two grounds for reversal. The first ground was that Francisco failed to 

 27 The undercover officer was identified (but not by name) in the affidavit the arresting 

officer executed for the issuance of the Complaint. See supra note 16.

28 Without stating as much, the IJ saddled the Government with the burden of proof on 

the issue of cancellation of removal. 

29 Mere possession of cocaine is not an aggravated felony. See Lopez, 549 U.S. at 60, 

127 S. Ct. at 633.

30 In finding Francisco eligible for cancellation of removal, the IJ did not directly address 

on the record or in his oral decision whether Francisco established the first two requirements for 

relief, which relate to his residence. See supra note 6. However, in the hearing on January 13, 

Francisco testified that he received a “green card” in “October, 1997” and has lived in the United 

States “[s]ince that time.” In the oral decision, the IJ found that Francisco “is a lawful permanent 

resident who has been admitted back since October 5, 1997.” 

31 The IJ did not elaborate on these “equities” and “representations.” 
23

prove his eligibility for cancellation of removal by establishing that his conviction 

under Fla. Stat. § 893.135(1)(b)1.c did not constitute the aggravated felony of 

trafficking in an illicit controlled substance. The Government pointed out that the 

statute criminalized more than mere possession of cocaine and was therefore 

divisible. It created disjunctive sets of offenses, at least one of which satisfied the 

definition of aggravated felony for either “illicit trafficking” in a controlled 

substance or “drug trafficking crime[s].” INA § 101(a)(43)(B); 8 U.S.C. 

§ 1101(a)(43)(B). The Government went on to observe that the term “illicit 

trafficking” included “any state . . . felony conviction involving the unlawful 

trading or dealing of any controlled substance.” Since two of the offenses in Fla. 

Stat. § 893.135(1)(b)1.c involved trading and dealing in cocaine, commercial 

transactions of a controlled substance, the Government argued that the IJ erred in 

failing to require Francisco to prove that his Count 1 conviction was not for 

engaging in such conduct. 

The Government’s second ground for reversal was that the IJ abused his 

discretion in finding that Francisco merited relief given the seriousness of the 

conduct for which he had been convicted. 

In his brief, Francisco conceded that he was removable for having been 

convicted for violating a law relating to a controlled substance offense. He also 

conceded that Fla. Stat. § 893.135(1)(b)1.c is a divisible statute which 
24

“criminalizes conduct punishable as a felony under the CSA, such as the sale, 

purchase, or manufacture of cocaine and some conduct that is not, such as simple 

possession.” He submitted that because the record was not clear as to whether he 

had been convicted of purchasing cocaine with intent to distribute, and thus of 

committing an aggravated felony, the IJ did not err in invoking the Moncrieffe 

presumption and finding that his conviction was for mere possession of cocaine—

an offense having no analogue among the offenses the INA designates as 

aggravated felonies.32 According to Francisco, Moncrieffe required the IJ, and thus 

the BIA, to “presume that [his] conviction rested on nothing but the least culpable 

conduct” criminalized in Fla. Stat. § 893.135(1)(b)1.c: mere possession of 

cocaine.33

On June 18, 2015, the BIA overturned the IJ’s decision and reinstated the

removal finding. Once again, the BIA found that the modified categorical 

approach applies to Fla. Stat. § 893.135(1)(b)1.c because the statute effectively 

creates multiple crimes, some of which qualify as aggravated felonies and some 

 

32 In referring to the “record,” Francisco was apparently referring to the judgment, 

including the sentences, the Circuit Court entered after he pled guilty to Counts 1 and 2 of the 

Information, and not to the testimony he gave at the January 13, 2015 removal hearing.

33 Implicit in Francisco’s argument was the proposition that the IJ, and the BIA on 

review, were precluded from considering his testimony that he accompanied the undercover 

agent to the warehouse for the purpose of purchasing cocaine.
25

that do not.

34 After determining that the modified categorical approach applied, 

the BIA agreed with the Government that Francisco had the burden of proving that 

he was eligible for cancellation of removal and that he failed to carry his burden. It

held that Francisco failed to prove that he had not committed a drug trafficking 

offense or engaged in illicit trafficking in a controlled substance, aggravated 

felonies listed in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). Since neither 

Count 1 of the Information nor the sentence imposed by the Circuit Court revealed 

which Fla. Stat. § 893.135(1)(b)1.c offense Francisco violated, the onus fell on him 

to prove that he had not committed an aggravated felony. He failed to carry that 

burden and therefore rendered himself ineligible for cancellation of removal. The 

BIA accordingly sustained the Government’s appeal, vacated the IJ’s grant of 

cancellation of removal, and ordered Francisco removed to the Dominican 

Republic. 

III.

Throughout this litigation, the parties and the BIA have agreed that the 

modified categorical approach applies to Fla. Stat. § 893.135(1)(b) because it is a 

 

34 The BIA distinguished our decision in Donawa on the ground that Fla. Stat. 

§ 893.135(1)(b)1.c “expressly requires that the defendant have knowledge of the nature of the 

substance in his possession,” the same mens rea as required in 21 U.S.C. § 841(a)(1). In 

contrast, the statute at issue in Donawa, Fla. Stat. § 893.13(1)(a)(2), did not require knowledge 

of the nature of the substance in possession, meaning that the crime did not have a categorical 

match in the CSA. 
26

divisible statute.

35 In Cintron v. U.S. Attorney General, however, a panel of this 

Court recently held that Fla. Stat. § 893.135(1)(c) is neither divisible nor a 

categorical match to a federal crime in the CSA. 2018 WL 947533, at *3–*4, *6. 

The holding of Cintron controls our decision because Fla. Stat. § 893.135(1)(b) 

and (1)(c) have substantively identical language.36 Therefore, Francisco’s 

conviction under Fla. Stat. § 893.135(1)(b)1.c cannot be an aggravated felony.37 

 

35 Although we lack jurisdiction to review a judgment granting or denying discretionary 

relief from a removal order, such as cancellation of removal, INA § 242(a)(2)(B)(i), 8 U.S.C. 

§ 1252(a)(2)(B)(i), we may review questions of law, INA § 242(a)(2)(D), 8 U.S.C.

§ 1252(a)(2)(D). It is a legal question whether a conviction under a statute is an aggravated 

felony. Donawa, 735 F.3d at 1279–80.

36 In pertinent part, Fla. Stat. § 893.135(1)(b)–(c) states: 

(b) 1. Any person who knowingly sells, purchases, manufactures, 

delivers, or brings into this state, or who is knowingly in actual or 

constructive possession of, 28 grams or more of cocaine, as 

described in s. 893.03(2)(a)4., or of any mixture containing 

cocaine, but less than 150 kilograms of cocaine or any such 

mixture, commits a felony of the first degree, which felony shall be 

known as “trafficking in cocaine,” punishable as provided in s. 

775.082, s. 775.083, or s. 775.084. . . .

(c) 1. A person who knowingly sells, purchases, manufactures, 

delivers, or brings into this state, or who is knowingly in actual or 

constructive possession of, 4 grams or more of any morphine, 

opium, hydromorphone, or any salt, derivative, isomer, or salt of 

an isomer thereof, including heroin, . . . or 4 grams or more of any 

mixture containing any such substance, but less than 30 kilograms 

of such substance or mixture, commits a felony of the first degree, 

which felony shall be known as “trafficking in illegal drugs,” 

punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

37 Since we consider Fla. Stat. 893.135(1)(b)1.c to be an indivisible statute that lacks a 

categorical match in the CSA, we do not reach the issue of whether the Moncrieffe presumption 

applies in determining an alien’s eligibility for cancellation of removal when the Shepard

documents are inconclusive as to which crime the alien committed in a divisible statute. The 

circuits have split on this issue. See Le v. Lynch, 819 F.3d 98, 105–06 (5th Cir. 2016) (“[T]he 

alien, not the Government, bears the initial burden of production of evidence that he is eligible 
27

The consequence is that Francisco satisfied the third requirement for eligibility for 

cancellation of removal, that he “has not been convicted of an aggravated felony.” 

INA § 240A(a)(3); 8 U.S.C. § 1229b(a)(3). We accordingly vacate the BIA

decision and remand the case for further proceedings.38

SO ORDERED.

 

for discretionary relief.” (quotation omitted)); Syblis v. U.S. Attorney Gen., 763 F.3d 348, 357 

(3d Cir. 2014) (“[A]n inconclusive record of conviction does not satisfy an alien’s burden of 

demonstrating eligibility for relief from removal.”); Sanchez v. Holder, 757 F.3d 712, 719–20 

(7th Cir. 2014) (holding that the burden of proof controls only if the evidence remains 

inconclusive after the adjudicator examines evidence outside Shepard evidence documents); 

Young v. Holder, 697 F.3d 976, 989 (9th Cir. 2012) (en banc) (“[A]n inconclusive record of 

conviction does not demonstrate eligibility for cancellation of removal.”); Salem v. Holder, 647 

F.3d 111, 116 (4th Cir. 2011) (“Presentation of an inconclusive record of conviction is 

insufficient to meet an alien’s burden of demonstrating eligibility.”); Garcia v. Holder, 584 F.3d 

1288, 1289 (10th Cir. 2009) (“An alien who has conceded removability has the ‘burden of 

establishing that he or she is eligible for any requested benefit or privilege.’” (quoting 8 C.F.R. 

§ 1240.8(d)). But see Sauceda, 819 F.3d at 532 (holding that “the unrebutted Moncrieffe

presumption applies” when the record is inconclusive as to which offense the alien committed in 

a divisible state statute); Martinez v. Mukasey, 551 F.3d 113, 122 (2d Cir. 2008) (holding that the 

Board “erred by placing the burden on [an alien] to show that his conduct was the equivalent of a 

federal misdemeanor”).

38 In appealing the IJ’s January 13, 2015 decision, the Government argued, as second 

ground for reversal, that in light of the conduct that led to Francisco’s convictions of conspiring 

to violate and violating Fla. Stat. § 893.135(1)(b)1.c, the IJ abused his discretion in granting 

Francisco’s application for cancellation of removal. Given its holding that Francisco failed to 

prove that he had not been convicted of an aggravated felony, the BIA did not reach the 

argument. We assume that on remand, the BIA will address it.