U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office ofthe Clerk
51071.eesburg Pike, Suite 2000

Falls Church. Virgmia 20530

OHS/ICE Office of Chief Counsel - LVG

Reza Athari & Associates

3365 Pepper Lane
#102

3373 Pepper Lane

Las Vegas, NV 89120

Las Vegas, NV 89120

Name: CRUZ MARTINEZ, MARCO ANT ...

A 070-726-184

Date of this notice: 4/21/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DOrutL cWv't.)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Geller, Joan B
Malphrus, Garry 0.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Marco Antonio Cruz-Martinez, A070 726 184 (BIA April 21, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Reszko, Seth L

,.......

"

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Exec.utive Office for Immigration Review

falls Church, Virginia

File:

20530

A070 726 184 - Las Vegas, NV

Date:

APR 212015

In re: MARCO ANTONIO CRUZ-MARTINEZ

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:

Seth Reszko, Esquire

CHARGE:
Notice:

Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Waiver of inadmissibility; Adjustment of status

This case was last before the Board on February 7, 2013, when we affirmed an Immigration
Judge's decision finding the respondent ineligible for a waiver of inadmissibility because his
conviction under section 454.351 of the Nevada Revised Statutes was a violation of a law
relating to a controlled substance within the meaning of section 212(a)(2)(A)(i)(II) of the

Immigration and Nationality Act, 8 U.S.C. 1182(a)(2)(A)(II). 1 On March 24, 2014, the
United States Court of Appeals for the Ninth Circuit remanded this record for further
proceedings, including for the Board to address whether the Nevada statute at issue, which
references the Federal Food, Drug, and Cosmetic Act ("FDCA"), is a law that relates to a
"controlled substance" as that term is defined in the Federal Controlled Substances Act.
Order of the Ninth Circuit (citing Borrome

v.

See

Atty Gen., 687 F.3d 150 (3d Cir. 2012) (finding

violation of provisions of the FDCA relating to unlawful wholesale distribution of certain drugs
did not constitute a drug trafficking crime)).
In its order remanding this record, the Ninth Circuit indicated that although it had not yet had
an opportunity to decide whether a violation of the FDCA was a violation of a law relating to a
controlled substance, the Third Circuit had found in Borrome

v.

Atty Gen., supra, that an alien's

conviction under 21 U.S.C. 331(t) and 353(E)(2)(A) did not so qualify.

Third Circuit noted that the alien at issue in Borrome

v.

In so holding, the

Att 'y Gen., supra, had sustained a

conviction under a provision of the FDCA that prohibits engaging in the wholesale distribution
in interstate commerce of prescription drugs without a proper license. 687 F.3d at 157-58.
1

The

The Immigration Judge also addressed several of the respondent's other convictions of

record-i.e., for obstructing a police officer, domestic violence battery, and harassment-and
found all of these convictions to involve moral turpitude. See I.J. at 3-5. Because our finding
triggered a conclusion that the respondent was ineligible for a waiver of inadmissibility, and,
therefore, adjustment of status, we found it unnecessary to address the respondent's arguments
that the Immigration Judge erred in classifying his other convictions as involving moral turpitude.

Cite as: Marco Antonio Cruz-Martinez, A070 726 184 (BIA April 21, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL

A070 726 184

Third Circuit found that prescription drugs subject to those sections of the FDCA are listed in the
Federal Drug Administration's Orange Book, which contains many substances also listed on the
Federal schedules of controlled substances, and many that are not listed. Id at 158.
This
"daylight" between the Orange Book and Federal controlled substance schedules led the Third
Circuit to find that a conviction arising under 21 U.S.C. 33 l(t) and 353(E)(2)(A) was not

punishable as a drug trafficking crime. 2

v.

Atty Gen., supra, case is instructive, it does not dictate a result in this

case. Unlike the alien in that case, the respondent was not convicted under the FDCA itself, but
rather, under a provision of Nevada law that references the FDCA.
454.351. That statute provides that:
"[a]ny person .

See Nev. Rev. Stat.

who possesses, procures, obtains, produces, derives,

manufactures, sells, offers for sale, gives away or otherwise furnishes any drug
which may not be lawfully introduced into interstate commerce under the Federal
[FDCA] is guilty of a misdemeanor."
The Nevada statute does not on its face reference the same provisions of the FDCA at issue

in Borrome v. Atty Gen., supra. In fact, it is unclear to what extent the Nevada law incorporates
the FDCA when it refers to "any drug which may not be lawfully introduced into interstate
commerce." The FDCA is a broad statute enacted as part of a comprehensive effort covering,
inter alia, certain substances, including prescription drugs, which also are listed on the Federal
controlled substance schedules. See, e.g., 21 U.S.C. 829.
can also be covered by the FDCA. See U.S.
U.S.

v.

v.

v.

Schedule II, II, and IV substances

Flowers, 818 F.2d 464, 468-69 (6th Cir. 1987);

Moore, 505 F.2d 426, 438-39 (D.C. Cir. 1974) (rev'd on other grounds); see also U.S.

Cole, 457 F.2d 1141, 1145 (9th Cir. 1972) (prosecution for manufacture of methamphetamine

under FDCA); U.S.

v.

Shipstead, 433 F.2d 368

(9th Cir.

1970).

3
Given the lack of clarity as to the coverage of the Nevada statute, the passage of time, and
the issuance of intervening precedent, we find that a remand of this record is warranted. While
this appeal was pending, the Board decided Matter of Ferreira, 26 I& N Dec, 415 (BIA 2014),
which holds that where a State statute on its face covers a controlled substance not included in
the Federal controlled substance schedules, there must be a realistic probability that the State
would prosecute conduct under the statute that falls outside the generic definition of the
removable offense. Given the potential impact of this intervening decision, we remand to the
Immigration Judge to analyze, in the first instance, whether the statute under which the
respondent was convicted is categorically a controlled substance offense, and if not, if it is
divisible under Descamps

v.

United States, 133 S. Ct. 2276 (2013), and prevailing circuit law.

The Borrome v. Atty Gen., supra, case involved the question whether the alien's conviction
was a drug trafficking crime under section 10l(a)(43)(B) of the Act under the "hypothetical
Federal felony test" or under the "illicit trafficking" test. As noted, the question here is whether
the respondent's conviction constitutes one for violating a law relating to a controlled substance.
3

The Immigration Judge's decision in this matter was issued in September 2011.

Cite as: Marco Antonio Cruz-Martinez, A070 726 184 (BIA April 21, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

While the Borrome

A070 726 184

As noted, we previously did not address the respondent's argument that the Immigration
Judge erred in finding that his other convictions for, inter alia, obstructing a police officer,
domestic battery, and harassment, rendered him inadmissible under section 212(a)(2)(A)(i)(I) of
the Act. See supra note I. Since our decision in this case was issued, the United States Supreme
Court and the Ninth Circuit have issued precedent that should be applied to the respondent's
case. This precedent bears on determinations of whether a law under which the respondent was
a crime involving moral turpitude,

when a modified

categorical analysis (considering certain conviction records) is appropriate, and the extent that an
inconclusive record can satisfy an alien's burden of proving eligibility for relief. See Descamps

v. United States, supra; Olivas-Motta v. Holder, 746 F.3d 907 (9th Cir. 2013); Almanza-Arenas
v. Holder, 771 F.3d 1184 (9th Cir. 2014).

On remand, if deemed necessary and appropriate

considering the remand to address the conviction under section 454.351 of the Nevada Revised
4
Statutes, the Immigration Judge should undertake further analysis as to whether the respondent
is eligible for adjustment of status and/or a waiver of inadmissibility given his most current
conviction record.
Accordingly, the following order is entered.
ORDER: The record is remanded for further proceedings consistent with this order.

d&P

FOR THE BOARD

A determination by the Immigration Judge that the respondent's convictions render him

inadmissible

under

section

212(a)(2)(A)(i)(II)

would

moot

the

question

whether

other

convictions involve moral turpitude and whether he is fit for a discretionary waiver under section
212(h) of the Act.

Cite as: Marco Antonio Cruz-Martinez, A070 726 184 (BIA April 21, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

convicted categorically describes