Interim Decision #3637 Matter of Juan Carlos ZORILLA-VIDAL, Respondent
March 30, 2009 by Thomas Esparza
Filed under Attorneys
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
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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.
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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.
