Interim Decision #3637 Matter of Juan Carlos ZORILLA-VIDAL, Respondent

Cite as 24 I&N Dec. 768 (BIA 2009) Interim Decision #3637

768

Matter of Juan Carlos ZORILLA-VIDAL, Respondent

File A045 240 272 – Miami, Florida

Decided March 20, 2009

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Outside the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a

conviction for criminal solicitation under a State’s general purpose solicitation statute is a

conviction for a violation of a law “relating to a controlled substance” under section

237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006),

where the record of conviction reflects that the crime solicited is an offense relating to a

controlled substance.

 

 

 

 

Matter of Beltran, 20 I&N Dec. 521 (BIA 1992), reaffirmed.

Coronado-Durazo v. INS

 

 

 

 

 

FOR RESPONDENT: Sandra Echevarria, Esquire, Miami, Florida

FOR THE DEPARTMENT OF HOMELAND SECURITY: Kathy Giraitis, Assistant Chief

Counsel

BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.

PAULEY, Board Member:

In a decision dated July 3, 2007, an Immigration Judge terminated removal

proceedings against the respondent. The Department of Homeland Security

(“DHS”) has appealed from that decision. The respondent opposes the appeal

and urges that we affirm the Immigration Judge’s decision. The appeal will

be sustained, the proceedings will be reinstated, and the record will be

remanded to the Immigration Judge for further proceedings.

The respondent, a native and citizen of Colombia, was convicted on

February 26, 2003, of criminal solicitation in violation of section 777.04(2) of

the Florida Statutes, based on his plea of no contest to a charge that he solicited

the delivery of cocaine, an offense in violation of section 893.13(1)(a)(1) of the

Florida Statutes. Under Florida law, the elements of criminal solicitation are

(1) commanding, hiring, requesting, or encouraging another person to commit

a crime and (2) the intent that the other person commit the crime.

 

 

 

 

Bar v. Marable

 

 

 

 

 

Cite as 24 I&N Dec. 768 (BIA 2009) Interim Decision #3637

1

 

 

 

 

Circuit’s in

 

 

 

 

Dolt, see United States v. Liranzo

decision to be distinguishable, both because the Sentencing Guidelines do not employ the

“relating to” phrase and because the Board was entitled to deference in this context.

 

 

 

 

v. Gonzales

 

 

 

 

 

2

 

 

 

 

In Coronado-Durazo v. INS, supra

statute precluded the construction placed upon it by

 

 

 

 

Matter of Beltran.

769

Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), where the record of conviction reflects

that the crime solicited is the delivery of cocaine. We answer this question

in the affirmative and hold that our own precedent decision in

 

 

 

 

Beltran

 

 

 

 

 

Matter of Beltran

 

 

 

 

 

237(a)(2)(B)(i) of the Act will be sustained and the Immigration Judge’s

decision to the contrary will be vacated.

We recognize that the Ninth Circuit has adopted precedent that

is directly at odds with our holding in

 

 

 

 

Matter of Beltran, supra. See, e.g.,

Coronado-Durazo v. INS

 

 

 

 

 

the Sixth Circuit has held that the Florida solicitation statute at issue here does

not define a “controlled substance offense” for purposes of the career offender

provision of the United States Sentencing Guidelines, even where the solicited

crime was trafficking in cocaine.

 

 

 

 

See United States v. Dolt

(6th Cir. 1994). Yet two other circuits—the Second and the Fifth—have

affirmatively upheld the rule of

 

 

 

 

Matter of Beltran

precedents.

 

 

 

 

Mizrahi v. Gonzales, 492 F.3d 156, 164-65 (2d Cir. 2007);1

v. Ashcroft

 

 

 

 

 

United States v. Dolt, supra

change in nationwide law as to whether a conviction for soliciting the delivery

of cocaine under Florida’s general purpose solicitation statute can constitute a

conviction for violating a law “relating to a controlled substance” within the

meaning of section 237(a)(2)(B)(i) of the Act. On the contrary, the fact that the

more recent Federal circuit court decisions are consistent with

 

 

 

 

Matter of Beltran

reinforces our continuing view that it was correctly decided and remains viable

outside the Ninth Circuit.

 

 

 

 

2

Cite as 24 I&N Dec. 768 (BIA 2009) Interim Decision #3637

770

In conclusion, we reaffirm our precedent in

 

 

 

 

Matter of Beltran

that the respondent’s Florida conviction for soliciting the delivery of

cocaine is a conviction for an offense under State law relating to a controlled

substance that makes him removable from the United States under section

237(a)(2)(B)(i) of the Act. Accordingly, the DHS’s appeal will be sustained,

the removal proceedings will be reinstated, and the record will be remanded to

the Immigration Judge.

 

 

ORDER:

 

 

 

 

 

the decision of the Immigration Judge is vacated, and the removal proceedings

against the respondent are reinstated.

FURTHER ORDER:

 

 

 

 

 

further proceedings consistent with the foregoing opinion and for the entry of

a new decision.