CA5 on Aggravated Felony: Paez Sarmientos v. Holder

CA5 on Aggravated Felony: Paez Sarmientos v. Holder

"Andres Paez Sarmientos petitions for review from an order of the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ’s) determination that he is not eligible for cancellation of removal because he committed an aggravated felony.  Because we hold that the Florida offense of which Paez Sarmientos was convicted is not categorically an aggravated felony, we grant the petition, vacate the order, and remand for further proceedings. ... Paez Sarmientos argues that a conviction under § 893.13(1)(a)(1), as modified by § 893.101, does not require that the defendant knew that the substance at issue was a controlled substance whereas conviction under the federal statute does.  He asserts that, contrary to the BIA’s reasoning, his 2005 state conviction for delivery of cocaine is therefore not analogous to the federal offense of distribution of a controlled substance.  We agree. ... [T]he least of the acts criminalized by the delivery of cocaine crime under Florida Statute § 893.13(1)(a)(1) does not necessarily violate the federal cocaine distribution statute since the federal offense requires the prosecution to prove beyond a reasonable doubt an element that the state offense does not: knowledge of the illicit nature of the substance.  Paez Sarmientos’s state conviction is thus not categorically an aggravated felony. ... Paez Sarmientos’s petition is GRANTED, and we VACATE AND REMAND for further proceedings consistent with this opinion." - Paez Sarmientos v. Holder, Feb. 12, 2014.  [Hats way off to Javier N. Maldonado!]