CA11 on Modified Categorical Approach: Gordon v. Atty. Gen.

Gordon v. Atty. Gen. - "Petitioner Lannie Gordon (“Gordon”) petitions for review of the Board of Immigration Appeals’ (“Board” or “BIA”) order upholding the Immigration Judge’s (“IJ”) finding that his conviction for violating Florida Statute § 893.13(1)(a) constituted an aggravated felony and therefore rendered him removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii). We grant his petition, and reject the Board’s finding of removability. ...

The modified categorical approach only allows courts to “to examine a limited class of documents to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct. at 2284 (emphasis added). Here, those documents, which were relied upon by the Board, do not disclose whether Mr. Gordon was convicted for violating the element of sale or for violating the element of delivery. Because the Board had to “‘presume that the conviction rested upon nothing more than the least of the acts criminalized’ under the state statute,” Mellouli v. Lynch,–––U.S. ––––, 135 S. Ct. 1980, 1986, 192 L. Ed. 2d 60 (2015) (quoting Moncrieffe, 133 S. Ct. at 1684–85), it had to presume that the conviction was for delivery, and accordingly not an aggravated felony.

Further, the Board’s conclusion that the crime was an aggravated felony because the sale or delivery was “for monetary consideration” is meritless. That the sale or delivery was “for monetary consideration” does nothing to assist us in determining “which of a statute’s alternative elements”—sale or delivery—“formed the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct. at 2284. The Supreme Court has made clear time and time again that “[a]n alien’s actual conduct is irrelevant to the inquiry.” Mellouli, 135 S. Ct. at 1986. As the Board did not appropriately determine that Gordon was convicted of an aggravated felony, we grant Gordon’s petition and reject the Board’s finding of removability."

[Hats off to appointed counsel Freddy Funes!]