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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, 123 F.3d 1322 (9th Cir. 1997), followed in jurisdiction only.
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. The Florida Bar v. Marable, 645 So.2d 438, 442 (Fla.
1994). The issue before us is whether solicitation under Florida law is an
offense “relating to a controlled substance” under section 237(a)(2)(B)(i) ofCite as 24 I&N Dec. 768 (BIA 2009) Interim Decision #3637
1 Moreover, the Second Circuit noted that it, too, had rendered a decision similar to the Sixth
Circuit’s in Dolt, see United States v. Liranzo, 944 F.3d 73, 79 (2d Cir. 1991), but found that
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. Mizrahi
v. Gonzales, supra, at 165 n.11.
2 In Coronado-Durazo v. INS, supra, the Ninth Circuit found that the plain language of the
statute precluded the construction placed upon it by Matter of Beltran.
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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 the delivery
of cocaine. We answer this question in the affirmative and hold that our own
precedent decision in Matter of Beltran, 20 I&N Dec. 521 (BIA 1992), is
controlling authority on the question in the absence of contrary precedent from
the United States Court of Appeals for the Eleventh Circuit, in whose
jurisdiction this proceeding arises. 8 C.F.R. § 1003.1(g) (2008) (“Except as
Board decisions may be modified or overruled . . . , decisions of the Board . . .
shall be binding on . . . immigration judges in the administration of the
immigration laws of the United States.”). The Eleventh Circuit has issued no
precedent decision that is contrary to Matter of Beltran. Accordingly, the
charge of removability under section 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, 123 F.3d 1322, 1325 (9th Cir. 1997). Furthermore,
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, 27 F.3d 235
(6th Cir. 1994). Yet two other circuits—the Second and the Fifth—have
affirmatively upheld the rule of Matter of Beltran despite the aforementioned
precedents. Mizrahi v. Gonzales, 492 F.3d 156, 164-65 (2d Cir. 2007);1 Peters
v. Ashcroft, 383 F.3d 302, 306-07 (5th Cir. 2004). Given this division of
authority, we reject the Immigration Judge’s apparent conclusion that the Sixth
Circuit’s decision in United States v. Dolt, supra, represents a controlling
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.2Cite as 24 I&N Dec. 768 (BIA 2009) Interim Decision #3637
770
In conclusion, we reaffirm our precedent in Matter of Beltran and find
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 appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings against the respondent are reinstated.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.