DIMITRIOS I. BOURTZAKIS, Plaintiff-Appellant,
UNITED STATES ATTORNEY GENERAL, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, JACKSONVILLE FIELD OFFICE DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendants-Appellees.
from the United States District Court for the Middle District
of Florida D.C. Docket No. 3:17-cv-00062-HES-JRK
WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO,
WILLIAM PRYOR, Circuit Judge
appeal presents the question whether a conviction for
delivery of cocaine under Washington law, Wash. Rev. Code
§ 69.50.401(a)(1)(i) (1989), categorically qualifies as
an "aggravated felony" under the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43). The Department
of Homeland Security denied Dimitrios Bourtzakis's
application for naturalization on the ground that his prior
conviction in Washington for delivery of cocaine is an
aggravated felony under section 1101(a)(43), which bars him
from establishing the "good moral character"
necessary for naturalization. Id. §§
1101(f)(8), 1427(a). Bourtzakis filed a complaint challenging
that denial, id. § 1421(c), but the district
court ruled that his prior conviction is an aggravated felony
and dismissed his complaint. Because we agree with the
district court that Bourtzakis's prior conviction
categorically qualifies as an aggravated felony, we affirm.
a citizen of Greece, has lawfully resided in the United
States since 1974. He applied for naturalization in 2016, but
the Department denied his application on the ground that his
prior conviction of an "aggravated felony," 8
U.S.C. § 1101(a)(43), bars him from establishing the
necessary "good moral character," id.
§§ 1101(f)(8), 1427(a). In 1992, a Washington court
convicted Bourtzakis of delivering cocaine in violation of
the Uniform Controlled Substances Act, Wash. Rev. Code §
69.50.401(a)(1)(i) (1989). Bourtzakis challenged the denial
of his application in a hearing before the Citizenship and
Immigration Services, which reaffirmed that decision.
then filed a complaint in the district court to review the
denial of his application. See 8 U.S.C. §
1421(c). His complaint alleged that his conviction for
delivery of cocaine was not an aggravated felony and did not
bar him from establishing good moral character.
government moved to dismiss Bourtzakis's complaint,
Fed.R.Civ.P. 12(b)(6), on the ground that his prior
conviction categorically qualified as a "drug
trafficking crime," which is an aggravated felony under
the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(B). Section 1101(a)(43)(B) defines "drug
trafficking crime" to include any felony punishable
under the federal Controlled Substances Act, id.
(incorporating 18 U.S.C. § 924(c)(2)), and the
government argued that Bourtzakis's conviction for
delivery of cocaine under Washington law also would have been
punishable as a felony under the federal Act. Bourtzakis
responded that the Washington statute proscribes the act of
"administering" a controlled substance, while the
federal Act does not. He argued that because the Washington
statute proscribes more conduct than the federal Act, a
conviction under the state statute does not categorically
qualify as an aggravated felony.
district court dismissed Bourtzakis's complaint. It ruled
that Bourtzakis's prior conviction for delivery of
cocaine categorically qualifies as an aggravated felony,
which bars him from establishing good moral character.
STANDARD OF REVIEW
review de novo the dismissal of a complaint.
Culverhouse v. Paulson & Co., 813 F.3d 991, 993
(11th Cir. 2016).
Immigration and Nationality Act requires an applicant for
naturalization to establish that he "is a person of good
moral character," 8 U.S.C. § 1427(a), and an
applicant cannot satisfy that requirement if, during the
relevant time period, he had a prior conviction for an
"aggravated felony." Id. §
1101(f)(8). Among the several offenses included in the
definition of "aggravated felony" is "illicit
trafficking in a controlled substance," which includes
"a drug trafficking crime (as defined in section 924(c)
of Title 18)." Id. § 1101(a)(43)(B). We
must determine whether Bourtzakis's prior conviction
qualifies as "a drug trafficking crime (as defined in
section 924(c) of Title 18)" because the government does
not argue that his conviction otherwise qualifies as
"illicit trafficking in a controlled substance."
924(c) defines "drug trafficking crime" to include
"any felony punishable under the Controlled Substances
Act (21 U.S.C. 801 et seq.)." 18 U.S.C. §
924(c)(2). Under federal law, a "felony" is an
offense for which the maximum allowable term of imprisonment
is more than one year. See id. §
3559(a)(1)-(5). The result "is that a noncitizen's
conviction of an offense that the Controlled Substances Act .
. . makes punishable by more than one year's imprisonment
will be counted as an 'aggravated felony'" for
purposes of determining whether he is a person of good moral
character. Moncrieffe v. Holder, 569 U.S. 184, 188
(2013); see 8 U.S.C. § 1101(f)(8). "A
conviction under either state or federal law may qualify, but
a state offense constitutes a felony punishable under the
[Controlled Substances Act] only if it proscribes conduct
punishable as a felony under that federal law."
Moncrieffe, 569 U.S. at 188 (citation and internal
quotation marks omitted).
determine whether a state offense is a felony punishable
under the federal Act, we apply the categorical approach.
Id. at 192. Under the categorical approach, we
examine whether the state statute "'necessarily'
proscribe[s] conduct that is an offense under the [Controlled
Substances Act]" and whether the federal Act
"'necessarily' prescribe[s] felony punishment
for that conduct." Id. If the answer to both
questions is affirmative, then the state statute qualifies as
an "aggravated felony" under section
1101(a)(43)(B), id., and a prior conviction under
that statute bars an applicant from establishing "good
moral character," 8 U.S.C. § 1101(f)(8), for
categorical approach "is not an invitation to apply
'legal imagination' to the state offense."
Moncrieffe, 569 U.S. at 191 (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007)). Instead, to
conclude that a state statute proscribes conduct not
punishable under the federal Act "requires a realistic
probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside"
the reach of the federal Act. Duenas-Alvarez, 549
U.S. at 193; see also Moncrieffe, 569 U.S. at 191.
To establish that realistic probability, an applicant for
naturalization "must at least point to his own case or
other cases in which the state courts in fact did apply the
statute in the [broad] manner for which he argues."
Duenas-Alvarez, 549 U.S. at 193. The only exception
to this rule is when "the statutory language itself,
rather than 'the application of legal imagination' to
that language, creates the 'realistic ...