Alex Narcisse v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Alex Narcisse. Decision: Affirmed. Petition Denied. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-13445

Date Filed: 06/22/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13445
Non-Argument Calendar
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Agency No. A022-549-734

ALEX NARCISSE,
a.k.a. Alex L. Narcisse,
a.k.a. Alex Lamarque Narcisse,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 22, 2017)
Before WILLIAM PRYOR, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Alex Narcisse, a native and citizen of Haiti, petitions for review of the final
order of removal of the Board of Immigration Appeals. The Board ruled that
Narcisse was not entitled to withdraw his concession of removability because of
the alleged ineffectiveness of his counsel and that Narcisse was ineligible for
cancellation of removal, 8 U.S.C. § 1182(a)(2). We deny Narcisse’s petition.
I. BACKGROUND
In January 1980, Narcisse became a lawful permanent resident of the United
States. In March 1985, he was convicted in a New York court of attempted robbery
in the second degree and sentenced to five years of probation. See N.Y. Penal Law
§ 110-160.10. In 2014, Narcisse entered in a Florida court a plea of nolo
contendere to possession of cocaine, and the court withheld adjudication pending
Narcisse’s completion of two days of imprisonment and one year of probation. See
Fla. Stat. § 893.13(6)(a).
Narcisse traveled abroad and, in May 2015, when he returned to the United
States by way of Miami International Airport, the Department of Homeland
Security classified him as an alien seeking admission, see 8 U.S.C.
§ 1101(a)(13)(C)(v), who was inadmissible because of his prior convictions for a
crime of moral turpitude and for an offense relating to a controlled substance, see
id. § 1182(a)(2)(A)(i)(I), (a)(2)(A)(i)(II). During a hearing, counsel conceded that
Narcisse was an arriving alien who was inadmissible, and an immigration judge
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admitted into evidence copies of Narcisse’s prior convictions. Later, the
immigration judge denied Narcisse’s applications for asylum and withholding of
removal under the Immigration and Nationality Act and the United Nations
Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment
or Punishment, id. §§ 1158(b), 1231(b)(3), and ordered Narcisse removed from the
United States.
On appeal to the Board, Narcisse sought to withdraw his concession of
removability and to cancel the order of removal. Narcisse argued that his counsel
was ineffective for conceding he was an arriving alien under the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 because it did not
apply retroactively to his 1985 conviction to deprive him of lawful resident status.
See Vartelas v. Holder, 566 U.S. 257 (2012). Counsel also was ineffective,
Narcisse argued, for conceding he was inadmissible because his drug conviction
did not qualify categorically as an offense relating to a controlled substance, see 8
U.S.C. § 1182(a)(2)(A)(i)(II). Narcisse also argued for cancellation of removal
based on his continuous residence in the United States. See id. § 1229b(a).
The Board denied Narcisse’s appeal. The Board ruled that counsel’s decision
to concede that Narcisse was removable based on his prior drug conviction was not
“the result of unreasonable professional judgment or . . . so unfair that [it] . . .
produced an unjust result in [his] case.” The Board concluded that Narcisse “[had]
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not demonstrated that his 2014 conviction . . . for Possession of Cocaine . . . is not
a controlled substance violation under . . . the Act” because he “[had] not
specifically identified in his appellate brief any controlled substances included on
the Florida schedule that are not included on the Federal schedule . . . .” And even
if the Florida statute had been “broader than the Federal schedule,” the Board
concluded, Narcisse “[had] not demonstrated a ‘realistic probability, not a
theoretical possibility,’ that the statute is in fact applied . . . to punish possession of
controlled substances not included on the Federal schedules.” “In addition,” the
Board stated, Narcisse “[had] not clearly established that the statute under which
he was convicted is not divisible within the meaning of Descamps v. United States,
133 S.Ct. 2276 (2013), given that the Standard Florida Jury Instruction applicable
to § 893.13(6)(a) clearly requires the prosecution to allege, and the jury to find,
that the accused possessed a ‘specific substance’ not just any scheduled
substance.” The Board also ruled that Narcisse was ineligible for cancellation of
removal because his “1985 conviction for Attempted Robbery” ended “his accrual
of continuous residence in the United States following his admission as a lawful
permanent resident” in 1980.
II. STANDARD OF REVIEW
One standard governs our review of Narcisse’s petition. We review de novo
the interpretation of a state statute in immigration proceedings, Ramos v. U.S. Att’y
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Gen., 709 F.3d 1066, 1069 (11th Cir. 2013); whether an alien has been denied due
process, see Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010); and
whether a prior conviction makes an alien ineligible for cancellation of removal,
see Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1279 (11th Cir. 2013).
III. DISCUSSION
Narcisse challenges the denial of relief by the Board. Narcisse argues that
competent counsel would have contested the charges of removability and that “the
Board erred as a matter of law” by relying on his prior convictions to find that he
was an arriving alien who was inadmissible. Narcisse also argues that he satisfied
the continuous residence requirement to qualify for cancellation of removal.
Narcisse fails to establish that the Board erred.
Narcisse was not entitled to withdraw his concession of removability based
on the alleged ineffectiveness of his counsel. Narcisse could not prove that he was
prejudiced because he was removable based on his prior conviction for possession
of cocaine. See Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2004).
Narcisse, a lawful permanent resident, had to “be regarded as seeking an admission
into the United States” in 2015 because, one year earlier, he had “committed an
offense,” 8 U.S.C. § 1101(a)(13)(C)(v), involving “a violation of . . . a[] law . . . of
a State . . . relating to a controlled substance” that made him inadmissible, id.
§ 1182(a)(2)(A)(i)(II). See Poveda v. U.S. Att’y Gen., 692 F.3d 1168, 1178–79
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(11th Cir. 2012). The offense of possession of a controlled substance under Florida
law is divisible and requires proof of a specific substance as an element of the
offense. See Descamps, 133 S. Ct. at 2285; Taylor v. United States, 495 U.S. 575,
599, 602 (1990). Narcisse argues that the statute “is not divisible,” but he fails to
challenge the conclusion of the Board that the statute is divisible because, under
the pattern jury instruction given in cases involving the possession of a controlled
substance, see Fla. Standard Jury Instructions in Criminal Cases 25.7 (2014), a jury
would have been required to find that Narcisse possessed cocaine, as opposed to
another substance, to convict. And Narcisse’s conviction involves cocaine, a
substance in the federal drug schedule, 21 U.S.C. § 802(6), and would qualify as a
controlled substance offense in violation of federal law, id. § 844. Narcisse’s prior
conviction for an offense related to a controlled substance made him removable,
see 8 U.S.C. §§ 1101(a)(13)(C)(v), 1182(a)(2)(A)(i)(II), so his counsel was not
ineffective for conceding removability.
Narcisse also was ineligible for cancellation of removal. To qualify for
cancellation of removal, Narcisse had to have “resided in the United States
continuously for 7 years after having been admitted.” See id. § 1229b(a)(2). But
Narcisse’s continuous residence terminated in 1985, five years after his admission,
“when []he . . . committed an offense referred to in section 1182(a)(2)” that made
him inadmissible. See id. § 1229b(d)(1). Narcisse argues that his conviction for
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attempted robbery cannot be used “for [his] removal as an ‘arriving alien’” under
section 1101, yet in so doing, he has abandoned any argument that he could have
made challenging the finding of the Board that his conviction for attempted
robbery is a crime of moral turpitude that “cease[d] his accrual of continuous
residence” under section 1229b. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005). The Board could base its ruling on Narcisse’s 1985
conviction because the “period of continuous residence shall be deemed to end . . .
when the alien has committed an offense” that renders him inadmissible, 8 U.S.C.
§ 1229b(d)(1)(B), not just the offense that makes him removable. Narcisse was
ineligible for cancellation of removal because he failed to accrue seven years of
continuous residence in the United States. See id. § 1229b(a)(2).
We DENY Narcisse’s petition for review.

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