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Bourtzakis v. United States Attorney General

United States Court of Appeals, Eleventh Circuit

October 9, 2019

DIMITRIOS I. BOURTZAKIS, Plaintiff-Appellant,
v.
UNITED STATES ATTORNEY GENERAL, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, JACKSONVILLE FIELD OFFICE DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendants-Appellees.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:17-cv-00062-HES-JRK

          Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO, [*] District Judge.

          WILLIAM PRYOR, Circuit Judge

         This 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.

         I. BACKGROUND

         Bourtzakis, 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.

         Bourtzakis 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.

         The 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.

         The 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.

         II. STANDARD OF REVIEW

         We review de novo the dismissal of a complaint. Culverhouse v. Paulson & Co., 813 F.3d 991, 993 (11th Cir. 2016).

         III. DISCUSSION

         The 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." Id.

         Section 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).

         To 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 naturalization.

         The 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 ...


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