Goodman, Simpson L, Esq.

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 l.eesburg l'1ke. S1111e 2000

Fc,1/s Ch11rch. l'irginia 20530

Simpson L. Goodman & Associates, PLLC 2918 Professional Parkway

OHS/ICE Office of Chief Counsel - NOL 1250 Poydras Street, Suite 325 New Orleans, LA 70113

Augusta, GA 30907

Name: KAUR, GURVINDER A 201-143-721

Date of this notice: 5/28/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Cole, Patricia A Pauley, Roger Wendtland, Linda S.

Sincerely,

DorutL c t1IVL)

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

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..

,'

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A201 143 721 - New Orleans, LA

In re: GURVINDER KAUR a.k.a. Gurvinder Kaur Laswant Singh a.k.a. Nicky

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Simpson L. Goodman, Esquire

ON BEHALF OF DHS:

CHARGE:

Charlotte Marquez Assistant Chief Counsel

Notice: Sec. 237(a)(l )(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -In the United States in violation of law

Date:

Lodged: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -Convicted of aggravated felony

APPLICATION: Termination

lAAY 182015

The respondent, a native and citizen of Malaysia, appeals the Immigration Judge's May 1, 2014, decision finding her removable from the United States pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii). The Department of Homeland Security ("DHS") opposes the appeal. 1 The appeal will be sustained, and these proceedings will be terminated.

We review findings of fact, including credibility findings, for clear error. See 8 C.F.R. § 1003.l (d)(3)(i); Matter of J-Y-C-, 24 l&N Dec. 260 (BIA 2007); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). We review issues of law, discretion, or judgment, and all other issues de novo. See 8 C.F.R. § 1003.l (d)(3)(ii).

The determinative issue in this case is whether the respondent's October 30, 2012, conviction for conspiracy to transfer a controlled substance-to wit, ephedrine, according to the Indictment-in violation of Mississippi Code Annotated §§ 41-29-139 and 97-1-1 renders her removable as an alien who has been convicted of an aggravated felony as that term is defined

1 The respondent was also charged with removability under section 237(a)(l)(B) of the Act (Exh. 1). The Immigration Judge declined to sustain this charge (I.J. at 3-4), and the DHS does not challenge that ruling on appeal.

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under section 10l(a)(43)(B) of the Act, 8 U.S.C. § l 10l(a)(43)(B) (Exh. IA; see also Exh. 3 at 4).2 See section 237(a)(2)(A)(iii) of the Act. Specifically, the DHS argues that this offense meets the definition of a "drug trafficking crime" within the meaning of section 101(a)(43)(B) of the Act. The Immigration Judge found that it does and sustained the DHS's charge under section 237(a)(2)(A)(iii) of the Act (I.J. at 4-6). For the following reasons, we disagree.

To determine whether the respondent has been convicted for a "drug trafficking crime," we must first determine whether the minimum conduct proscribed by her statute of conviction is punishable as a felony under the Controlled Substances Act ("CSA"). 18 U.S.C. § 924(c)(2) (as cross-referenced in section 101(a)(43)(B) of the Act); see Sarmientos v. Holder, 742 F.3d 624, 628 (5th Cir. 2014). In other words, the minimum conduct encompassed by Mississippi Code Annotated § 41-29-139 must meet two conditions: (1) it must meet the elements of an offense under the CSA; and (2) the CSA must punish such conduct as a felony.3 Moncrieffe v. Holder, 133 S. Ct. 1678, 1685 (2013). There are two potential CSA offenses at issue here-21 U.S.C.

§ 841(a) and (c)-each of which will be addressed in turn.

The respondent's statute of conviction provides, in relevant part, as follows:

(a) Except as authorized by this article, it is unlawful for any person knowingly or intentionally:

(1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance; or

(2) To create, sell, barter, transfer, distribute, dispense or possess with intent to create, sell, barter, transfer, distribute or dispense, a counterfeit substance.

Miss. Code Ann. § 41-29-139. On its face, this language closely tracks that which was adopted by Congress in 21 U.S.C. § 841(a). Cf 21 U.S.C. §§ 841(a)(l), (2) (using the terms

2 The relevant conviction documents in this case, a copy of the indictment and sentencing order, are all contained in Exhibit 3, which appears to have been disassociated from a larger portion of documents that were initially submitted together. Exhibit 3 has a total of five pages, with the pagination starting at page 4 and going through page 8. The pagination is found on the upper right-hand comer of each page. Where it is necessary to cite to a specific page within this exhibit, we will do so by using this pagination.

3 As noted, the respondent was convicted of conspiring to violate Mississippi Code Annotated § 41-29-139 (Exh. 3 at 6). See Miss. Code Ann.§ 97-1-1. Neither party addresses whether the crime of conspiracy under Mississippi law is coextensive with "generic" conspiracy, within the meaning of either section 101(a)(43)(U) of the Act or 21 U.S.C. § 846. Regardless, we need not reach the issue here because, as discussed below, we conclude that the underlying crime that the respondent conspired to commit, Mississippi Code Annotated § 41-29-139, is not a drug trafficking crime.

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"manufacture, distribute, or dispense" and "create, distribute, or· dispense," respectively). As discussed below, however, the two differ in one important respect.

A "controlled substance" under Federal law refers to a substance, or the immediate precursor thereof, that is included in one of the five Federal drug schedules. 21 U.S.C. § 802(6). Mississippi law has adopted a nearly identical definition. See Miss. Code Ann. § 41-29-105(f) ("'Controlled substance' means a drug, substance or immediate precursor in Schedules I through V . . . . "). Notably, however, Federal law defines "ephedrine" under its "listed chemical" classification, with designation as a "list 1 chemical." 21 U.S.C. § 802(33), (34)(C). The listed chemical classification is not part of the five Federal drug schedules. See generally United States v. Steward, 16 F.3d 317, 319 n.1 (9th Cir. 1994) (discussing the classification of ephedrine under Federal law). Nor is ephedrine designated as an "immediate precursor." See 21 U.S.C. § 802(23); 21 C.F.R. § 1308.12(g). Mississippi law, on the other hand, defines "ephedrine" as a Schedule III controlled substance. Miss. Code Ann.§ 41-29-l 17(A), Sched. III(d).

The importance of this distinction is that while 21 U.S.C. § 84l(a) does not apply to the act of manufacturing, distributing, or dispensing ephedrine, section 4 l-29-139(a) of the Mississippi Code Annotated does. We know this, not only from examining the relevant Mississippi statutes, but also from the respondent's conviction in this case (I.J. at 4-5; Exh. 3 at 4, 6). See Matter of Ferreira, 26 l&N Dec. 415, 421-22 (BIA 2014) (providing that where a determination rests on the comparison of Federal and State controlled substance schedules, an alien must demonstrate a realistic probability, though the existence of an actual prosecution or otherwise, that his or her offense would be applied to a non-federally controlled substance). And because ephedrine was the "controlled substance" that formed the basis of the respondent's conviction, she was necessarily not convicted of an offense punishable under 21 U.S.C. § 84l(a).

The OHS nevertheless argues that the respondent's offense is punishable under 21 U.S.C. § 841(c), the provision of the CSA affording criminal liability to conduct involving "listed chemicals." The offenses defined under this provision of the CSA require that the accused either (a) possess a listed chemical ''with intent to manufacture a controlled substance" or (b) possess or distribute a listed chemical "knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance." 21 U.S.C § 84l(c)(l), (2). While the respondent's conviction unquestionably involved ephedrine, a listed chemical under Federal law, there is no corollary requirement under her statute of conviction that the ephedrine be possessed or distributed with the intent to manufacture, or with knowledge or reasonable cause to believe that the ephedrine will be used to manufacture, a substance that is controlled under Federal law. Indeed, the minimum conduct required for a conviction under Mississippi Code Annotated § 41-29-139(a) is the act of distributing ephedrine or possessing ephedrine with the intent to distribute it. Whether either of those acts is done with intent, or knowledge or reason to know, that the manufacturing of a federally controlled substance would result is irrelevant. Accordingly, the respondent has not been convicted of an offense punishable under 21 U.S.C. § 841(c).

In fact, there is a separate provision of Mississippi law that more closely tracks the language of 21 U.S.C. § 84l(c). See Miss. Code Ann.§ 41-29-313(1)(a). That section applies to certain "precursor chemicals or drugs" that are possessed or distributed under circumstances related to

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the manufacturing of another substance that is controlled under Mississippi law, which is largely analogous to the conduct covered by 21 U.S.C. § 84l (c). See Miss. Code Ann. § 41-29-313(l )(a). Ephedrine is listed as a "precursor drug or chemical" for purposes of that section, in addition to its designation as a Schedule III controlled substance. See Miss. Code Ann. § 41-29-313(l )(b)(v). It would thus appear that Mississippi law allows ephedrine to be punished under both section 41-29-139(a) (for its possession, distribution, or manufacture) and section 41-29-313(1 )(a) (for its possession or distribution in connection with the manufacturing of another "controlled substance"), whereas 21 U.S.C. § 84l(c) only proscribes conduct involving ephedrine under the latter circumstance. However, we need not resolve here whether a conviction under section 41-29-313(l )(a) of the Mississippi Code Annotated is necessarily punishable under 21 U.S.C. § 841(c) because, as noted, the respondent was convicted under section 41-29-139(a).

In sum, there is a realistic probability that Mississippi would enforce its law in a manner that would cover substances within its definition of a "controlled substance" that are not included under Federal law. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); Matter of Ferreira, supra. The respondent's conviction, which involved ephedrine (a non-federally controlled substance), is therefore not publishable under 21 U.S.C. § 841(a). Furthermore, while 21 U.S.C. § 84l (c) proscribes certain conduct involving ephedrine, there are elements of that offense that are not included in the respondent's statute of conviction. See Descamps v. United States, 133 S. Ct. 2276, 2292 (2013) ("Whether the statute of conviction has an overbroad or missing element, the problem is the same: Because of the mismatch in elements, a person convicted under that statute is never convicted of the generic crime."). We therefore conclude that the OHS has not established that the respondent is removable under section 237(a)(2)(A)(iii) of the Act for having been convicted of an aggravated felony, the only charge of removal outstanding against the respondent. See supra note 1. Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the Immigration Judge's decision is vacated, and the removal proceedings are terminated.

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT NEW ORLEANS, LOUISIANA

File: A201-143-721

In the Matter of

May 1, 2014

GURVINDER KAUR ) ) ) ) )

)

IN REMOVAL PROCEEDINGS a/k/a LASWANT SING KAUR a/k/a NICKY

RESPONDENT

CHARGES:

APPLICATIONS:

Section 237(a)(1){B) of the Immigration and Nationality Act - as an alien who has remained in the United States for a longer time than permitted; Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act - as an alien convicted of an aggravated felony as defined in Section 101 ( a)( 43)(8) of the Act (illicit trafficking of a controlled substance, including a drug trafficking crime).

ON BEHALF OF RESPONDENT: SIMPSON L. GOODMAN Esquire 3540 Wheeler Road, Suite 210 Augusta, Georgia 30909

ON BEHALF OF OHS: CHARLOTTE S. MARQUEZ Assistant Chief Counsel 1250 Poydras Street, Suite 2100 New Orleans, Louisiana 70113

ORAL DECISION OF THE IMMIGRATION JUDGE

I. PROCEDURAL AND FACTUAL HISTORY

The respondent is a native and citizen of Malaysia. She was admitted into the

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United States at Atlanta. Georgia, on or about May 17, 2010, as a nonimmigrant visitor

authorized to remain no longer than August 16, 2010. The Government alleges that she

remained beyond the authorized date without authorization from the Department of

Homeland Security.

Removal proceedings commenced with issuance of a Notice to Appear dated

June 17, 2011 (Exhibit 1 ). Respondent was charged with being deportable for

remaining in the United States for a longer time than permitted.

Proceedings began before the Immigration Court in Oakdale, Louisiana. Shortly

after the Notice to Appear was filed, the respondent posted bond and venue was

transferred to the Immigration Court in New Orleans, Louisiana, September 26, 2011.

Before the Court in New Orleans, the Notice to Appear shows that allegations 1,

2, and 3 were admitted, but allegation 4, as well as the charge of deportability under

Section 237(a)( 1 )(B) of the Act, were denied.

There was a hearing scheduled for April 26, 2013, but was continued because

the attorney indicated in his motion that the respondent was not allowed to leave the

state of Mississippi because of a criminal conviction. The Department filed a non­

opposition to the motion to continue that hearing. The attorney of record at that time,

Thomas P. Adams, withdrew and the current attorney filed his entry of appearance on

the same date, November 21, 2013.

On December 12, 2013, the Department filed a Form 1-261 (Exhibit 1-A). That

document alleges that the respondent was convicted in the Circuit Court of Lawrence

County, Mississippi, on or about October 30, 2012, for conspiracy to transfer a

controlled substance. Respondent, throug.h her current counsel, denied both the

allegation, as well as the aggravated felony charge contained on the 1-261 under

Section 237{a)(2)(A)(iii) of the Act.

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After more continuances, there was a hearing on April 7, 2014. On that date, the

respondent filed a memorandum of law in support of contesting deportability as charged

in the Notice to Appear as amended (See Group Exhibit 4). The Department did not file

any response to the motion or any additional documents.

II. APPLICABLE LAW

Section 101 (a)(43)(8) of the Act defines the term aggravated felony as illicit

trafficking in a controlled substance (as defined in Section 102 of the Controlled

Substance Act), including a drug trafficking crime (as defined in Section 924(c) of 18

United States Code). Section 18 United States Code 924(c)(2) describes an offense as

drug trafficking if it is a violation under the Controlled Substance Act for which the

defendant has been sentenced to at least one year or the offense is a felony for which

the person has been sentenced to a year.

21 United States Code Section 841 (c)(2) of the Controlled Substance Act states

that any person who knowingly or intentionally possess or distributes a listed chemical

knowing, or having reason to believe, that the listed chemical will be used to

manufacture a controlled substance shall be fined and sentenced to a term of

imprisonment of not more than 20 years.

Ill. EVIDENCE PRESENTED AND ANALYSIS

In the document marked as Group Exhibit 4, respondent, through counsel,

addresses both charges of deportability.

At the outset, the Court notes that it is the Government's burden to establish that

the respondent is deportable as charged by evidence which is clear and convincing.

See Section 240(c){3)(A) of the Act. As just stated, the Department did not present any

documents in support of either contested allegation.

The respondent, through counsel, as part of Group Exhibit 4 has presented

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documents to establish that while the respondent was admitted as a visitor as alleged

by the Department on the Notice to Appear, her status was changed to that of a student.

As part of the exhibits presented by the respondent, it shows at Tab I that the

respondent was approved or her status changed to that of an F-1. There is also a

document showing that respondent has recently been issued another 1-20 and that she

was currently in status. Group Exhibit 4 at page 26 there is a Form 1-20 showing that

the respondent is expected to report to school no later than August 11, 2011, and to

complete studies no later than May 15, 2014. As part of the packet of documents that

the respondent presented, there is a letter from the university that she is currently

attending indicating that she is in fact attending and in good status. As the extensions

were granted after the June 11, 2011, Notice to Appear was issued, it would appear that

respondent is currently in status. There is a November 21, 2013, letter from the Copiah­

Lincoln Community College also indicating that the respondent has been accepted as a

student. That the college issued her an 1-20 Form and that she has been accepted as a

student for the 2013/2014/2014/2015 school year. Therefore, it would appear to the

Court that the respondent's status was in fact changed and she was not subject to

removal as an overstay since after she was granted the admission as a visitor, her

status was changed to that of a student and she appears to be in student status.

Therefore, the Court is not sustaining the charged under Section 237(a)(1)(B) of the Act.

The Court now considers whether or not the respondent is deportable as charged

as an aggravated felon based on illicit trafficking of a controlled substance. The

respondent in her brief argues that the respondent is not deportable as an aggravated

felon. On page 7 of the respondent's brief, respondent acknowledges that according to

Mississippi Code, Ephedrine is a scheduled three controlled substance according to

Mississippi Code Annotated Section 41-29-117. However, the respondent argues that

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Ephedrine is not a controlled substance under the Federal Controlled Substance Act

and specifically cites Section 802(A)(45)(A), which states that the scheduled listed

chemical products means, in addition to others Ephedrine, that may be marketed or

distributed lawfully in the United States. Had that been the end of the information in the

Controlled Substance Act, the Court would agree with the respondent that Ephedrine

would not be a controlled substance under federal law. This section addresses the use

of Ephedrine lawfully in products that are manufactured or distributed under the Federal

Food Drug and Cosmetic Act. 21 United States Code 301, et seq. However. there is a

separate section under the Controlled Substance Act that specifically addresses

whether or not List 1 chemicals would be controlled substances. That was previously

cited by the Court under Section 2. Section 21 United States Code 841(c)(2) of Federal1

Law specifically states that any person who knowingly or intentionally possesses or

distributes a listed chemical knowing or having reason to believe that the chemical could

be used to manufacture a controlled substance shall be fined and sentenced to a term

of imprisonment for not more than 20 years. The offense is classified as a felony under

18 United States Code 3559. Ephedrine is listed as a controlled substance and federal

law criminalizes the use of Ephedrine or a List 1 chemical such as Ephedrine, which is

listed under 21 C.F.R. 1310.02(a)(3). As the respondent acknowledges that Ephedrine

is a controlled substance under Mississippi Law and the respondent was sentenced to

five years in prison, the Court finds that the respondent's conviction for the conspiracy

to transfer a controlled substance mirrors a portion of the Controlled Substance Act of

the United States that Ephedrine is a List 1 chemical under both federal and state law.

As the respondent has been convicted of an offense for transferring a prohibited

chemical under the particular section cited by the Court, 841(c)(2), the Court finds that

the respondent has been convicted of illicit trafficking in a controlled substance and as

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she was sentenced to five years, it is a felony which would bring it within the purview of

18 United States Code 924(c){2). Therefore, the respondent has been convicted of an

aggravated felony as defined under Section 101 ( a)( 43)(A)(iii) of the Act. The Court

finds that deportability on this charge has been established by evidence which is clear

and convincing.

The Court is going to indicate on the Form 1-261, that the charge under Section

237(a){2)(A)(iii) of the Act has been sustained. I find that that charge has been

established by evidence which is clear and convincing.

The respondent designated Malaysia as the country of her removal if removal

were to become necessary. The respondent sought no relief from removal.

IV. CONCLUSION

The Court finds that the respondent is a native and citizen of Malaysia subject to

removal as charged in the charge on the Form 1-261 dated December 12, 2013. The

Court finds that the charge under Section 237(a)(2)(A)(iii) of the Act as it relates to

Section 101 (a)(43)(B) of the Act has been established by evidence which is clear and

convincing. As respondent seeks no relief from removal, the following order is hereby

entered.

ORDER

IT IS HEREBY ORDERED that the respondent be removed from the United

States to Malaysia.

signature

A201-143-721

Please see the next page for electronic

AGNELIS L. REESE Immigration Judge

6 May 1, 2014

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. ...

A201-143-721 7 May 1 , 201 4

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- ·

/ I s l /

Immigration Judge AGNELIS L . REESE

reesea on September 1 8 , 2 0 1 4 at 1 : 03 PM GMT

A201-143-721 8 May 1 1 2014

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