Cite as 26 I&N Dec. 365 (BIA 2014) Interim Decision #3809
365
Matter of L-G-H-, Respondent
Decided August 15, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Sale of a controlled substance in violation of section 893.13(1)(a)(1) of the Florida
Statutes, which lacks a mens rea element with respect to the illicit nature of the substance
but requires knowledge of its presence and includes an affirmative defense for ignorance
of its unlawful nature, is an “illicit trafficking” aggravated felony under section
101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012).
FOR RESPONDENT: Jesus Novo, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Elizabeth A. S. Thaler,
Associate Legal Advisor
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.
PAULEY, Board Member:
In a decision dated September 4, 2013, an Immigration Judge found the
respondent removable and denied his application for cancellation of
removal under section 240A(a) of the Immigration and Nationality
Act, 8 U.S.C. § 1229b(a) (2012). The Immigration Judge also denied the
respondent’s applications for asylum and withholding of removal under
sections 208(a) and 241(b)(3) of the Act, 8 U.S.C. §§ 1158 and 1231(b)(3)
(2012), as well as his request for protection pursuant to the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res.
39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708
(1984) (entered into force June 26, 1987; for the United States Apr. 18,
1988) (“Convention Against Torture”). The respondent has filed a timely
appeal from that decision. The respondent’s request for a waiver of the
filing fee associated with the filing of an appeal is granted. 8 C.F.R.
§§ 1003.3(a)(1), 1003.8(a)(3) (2014). The appeal will be dismissed in part,
and the record will be remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Venezuela who was first
admitted to the United States as a nonimmigrant visitor on April 28, 1989. Cite as 26 I&N Dec. 365 (BIA 2014) Interim Decision #3809
366
On June 21, 2003, he adjusted his status to that of a conditional permanent
resident. He became a lawful permanent resident when the conditions were
removed on July 24, 2006.
On December 1, 2006, the respondent was convicted of selling cocaine
in violation of section 893.13(1)(a)(1) of the Florida Statutes. On the same
day, he was convicted of possession of cocaine in violation of section
893.13(6)(a) of the Florida Statutes. Again on January 9, 2009, the
respondent was convicted of both possession of cannabis with intent to
sell, manufacture, or deliver in violation of section 893.13(1)(a)(2) of the
Florida Statutes and of use or possession of drug paraphernalia in violation
of section 893.147(1).
Based on these convictions, the Department of Homeland Security
(“DHS”) issued a notice to appear, charging that the respondent was
removable under sections 237(a)(2)(A)(ii) and (B)(i) of the Act, 8 U.S.C.
§§ 1227(a)(2)(A)(ii) and (B)(i) (2012), as an alien who was convicted of
two or more crimes involving moral turpitude and of a controlled substance
violation. The DHS subsequently lodged an additional charge under
section 237(a)(2)(A)(iii) of the Act, charging that the respondent was
convicted of illicit trafficking in a controlled substance, which is an
aggravated felony under section 101(a)(43)(B) of the Act, 8 U.S.C.
§ 1101(a)(43)(B) (2012).
At his removal hearing, the respondent admitted the factual allegations
and conceded the charges in the notice to appear, but he denied the
lodged charge that he was convicted of an aggravated felony. Based on
the respondent’s convictions and his concession of removability, the
Immigration Judge found him removable as an alien convicted of
a controlled substance violation.
1
He further determined that the
respondent was convicted of an aggravated felony based on his conviction
for selling cocaine. The Immigration Judge also denied each of the
respondent’s applications for relief from removal. On appeal, the
respondent argues that the Immigration Judge erred in finding that his
convictions were for aggravated felonies and in denying his applications for
relief. A panel of the Board held oral argument on March 6, 2014.2

1
The Immigration Judge did not sustain the charge relating to crimes involving moral
turpitude under section 237(a)(2)(A)(ii) of the Act. The DHS has not contested the
Immigration Judge’s finding on that charge, and we consider the issue waived. Matter of
R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012).
2
The parties agreed during oral argument that the issues on appeal in this case did not
involve any factual disputes. We review de novo the question of law presented on appeal.
8 C.F.R. § 1003.1(d)(3)(ii) (2014). Cite as 26 I&N Dec. 365 (BIA 2014) Interim Decision #3809
367
II. LEGAL BACKGROUND
Section 101(a)(43)(B) of the Act includes within the definition of an
aggravated felony
illicit trafficking in a controlled substance (as defined in section 102 of the
Controlled Substances Act), including a drug trafficking crime (as defined in
section 924(c) of title 18, United States Code).
Prior to the enactment of section 893.101 of the Florida Statutes, the
Florida Supreme Court held that the “guilty knowledge” element of the
crime of possession of a controlled substance contained two aspects:
knowledge of the presence of the substance and knowledge of its illicit
nature. Scott v. State, 808 So. 2d 166, 169–70 (Fla. 2002); Chicone v. State,
684 So. 2d 736, 738, 745–46 (Fla. 1996). In 2002, the Florida legislature
found those cases to be contrary to legislative intent and expressly
eliminated knowledge of the substance’s illicit nature as an element of
controlled substance offenses. Fla. Stat. § 893.101 (2002). The statute did
not, however, eliminate the element of knowledge of the presence of the
substance, and it created an affirmative defense of lack of knowledge of
the illicit nature of the substance. State v. Adkins, 96 So. 3d 412, 415−16
(Fla. 2012).
This change was evidently intended to help facilitate the prosecution of
drug offenses in Florida. However, for purposes of the immigration laws,
the amendment had the effect of preventing drug trafficking offenses in
Florida from qualifying as aggravated felonies under the “drug trafficking
crime” clause of section 101(a)(43)(B) of the Act. See Donawa v. U.S.
Att’y Gen., 735 F.3d 1275 (11th Cir. 2013). In that case, the United States
Court of Appeals for the Eleventh Circuit held that because Florida law
eliminated knowledge of the illicit nature of the controlled substance as
a required element of the offense of drug trafficking under section
893.13(1)(a), that statute is now broader than the corresponding Federal
crime at 21 U.S.C. § 841(a) (2012), which requires such knowledge for
conviction.
3
Id. at 1281−82. Consequently, this offense cannot qualify
as an aggravated felony under the “drug trafficking crime” clause of

3 At the time of the respondent’s conviction under section 893.13(1)(a) of the Florida
Statutes, it was “unlawful for any person to sell, manufacture, or deliver, or possess with
intent to sell, manufacture, or deliver, a controlled substance.” By contrast, 21 U.S.C.
§ 841(a)(1), which is among the drug trafficking offenses listed in 18 U.S.C. § 924(c)(2),
makes it “unlawful for any person knowingly or intentionally . . . to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or dispense,
a controlled substance.” (Emphasis added.) Cite as 26 I&N Dec. 365 (BIA 2014) Interim Decision #3809
368
section 101(a)(43)(B) of the Act. Id. at 1281–83;4
see also Sarmientos
v. Holder, 742 F.3d 624, 630−31 (5th Cir. 2014) (concurring with the
reasoning in Donawa). See generally Descamps v. United States, 133 S. Ct.
2276, 2283–86 (2013); Moncrieffe v. Holder, 133 S. Ct. 1678, 1683−85
(2013); Lopez v. Gonzales, 549 U.S. 47, 52−55 (2006).
However, the court expressly declined to consider the possibility that
such an offense could be an aggravated felony under the “illicit trafficking”
clause of section 101(a)(43)(B), and it remanded the case to the Board to
consider the question. Donawa v. U.S. Att’y Gen., 735 F.3d at 1283−84.
See generally Matter of Sanchez-Cornejo, 25 I&N Dec. 273, 274 (BIA
2010) (stating that under section 101(a)(43)(B) of the Act, the “illicit
trafficking” clause of the aggravated felony definition is distinct from the
“drug trafficking crime” clause). This case addresses that question. For
the reasons that follow, we conclude that the respondent’s conviction for
selling cocaine in violation of section 893.13(1)(a)(1) of the Florida
Statutes is for an aggravated felony under the illicit trafficking clause of
section 101(a)(43)(B) of the Act.
III. ANALYSIS
A. “Illicit Trafficking”
The phrase “illicit trafficking” is not defined in the Act, but we have
determined that Congress used the term to include “any state, federal, or
qualified foreign felony conviction involving the unlawful trading or
dealing” in a controlled substance as defined by Federal law. Matter of
Davis, 20 I&N Dec. 536, 540−41 (BIA 1992) (emphasis added), modified
on other grounds, Matter of Yanez, 23 I&N Dec. 390 (BIA 2002). The
record establishes that the respondent was convicted of a State felony
involving cocaine, a federally controlled substance.5
Thus, the conviction

4
Under Florida law, a violation is a felony of the second degree under section
893.13(1)(a)(1) if drugs such as cocaine are involved, but it is a felony of the third degree
under section 893.13(1)(a)(2) for other substances, including cannabis. In Donawa, the
Eleventh Circuit specifically addressed section 893.13(1)(a)(2). However, we conclude
that its holding applies to the statute more broadly since the only difference between
sections 893.13(1)(a)(1) and (2) is the controlled substance described.
5 The respondent’s conviction expressly indicates that it was for a felony of the second
degree, and he has not disputed that the controlled substance was cocaine. Therefore, we
need not consider whether the substances covered as second degree felonies under
Florida law are broader than those under Federal law, and thus whether
section 893.13(1)(a) is divisible as to the substance involved, because we conclude that
(continued . . .) Cite as 26 I&N Dec. 365 (BIA 2014) Interim Decision #3809
369
meets two of the three criteria we developed in Matter of Davis for
determining whether a crime qualifies as illicit trafficking. The remaining
issue is whether the respondent’s conviction under section 893.13(1)(a)(1)
of the Florida Statutes necessarily involved the “unlawful trading or
dealing” in cocaine. To make that assessment, we must first decide
whether, unlike the Florida statute, the “illicit trafficking” clause of section
101(a)(43)(B) of Act includes a specific mens rea requirement.
There is no express mens rea requirement included in the term “illicit
trafficking” in section 101(a)(43)(B). Since the phrase “including a drug
trafficking crime” in section 101(a)(43)(B) is set forth as a subset of “illicit
trafficking,” Congress must have intended that “illicit trafficking” would
encompass other controlled substance offenses beyond those defined to be
a “drug trafficking crime” in 18 U.S.C. § 924(c).6
Thus, the term “illicit
trafficking” need not be limited to crimes in Federal, State, or foreign laws
that require the defendant’s knowledge of the illicit nature of the substance
involved for conviction.
It is clear that when Congress revised the Act in 1990, it intended to
expand, rather than limit, the removal of aliens convicted of drug offenses.
See Matter of Esqueda, 20 I&N Dec. 850, 853−54 & n.3 (BIA 1994). We
have no reason to believe that Congress intended to impose a specific
knowledge requirement, and thus exclude a State drug trafficking crime
from the aggravated felony definition, solely because it does not require
knowledge of the illicit nature of the substance involved.
The Supreme Court has long recognized the constitutional validity of
statutes related to public welfare offenses, such as the illegal dealing
of narcotics, even though they lack a mens rea requirement. See, e.g.,
United States v. Balint, 258 U.S. 250, 251–52 (1922) (holding that the
general rule requiring proof of criminal intent has been modified for certain
statutes that would otherwise be rendered ineffective by such a rule);
Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 67−68 (1910) (holding
that the due process clause of the Fourteenth Amendment does not require a
State to prove intent for statutes implicating the “public welfare”); see also
United States v. Dominguez, 661 F.3d 1051, 1068−69 (11th Cir. 2011)
(holding that to require a mens rea element contrary to the plain language
of a statute and its legislative history could “functionally eliminate”
its purpose); State v. Adkins, 96 So. 3d at 422−23 (upholding the
_______________________________
the issue has been waived on appeal. See United States v. Castleman, 134 S. Ct. 1405,
1414 (2014) (finding that the defendant waived the issue of divisibility).
6
We recognize that the “drug trafficking crime” clause is not a subset in the usual sense,
because that phrase includes some offenses that do not involve a commercial aspect.
Thus, the “subset” is both broader and narrower than “illicit trafficking.” Cite as 26 I&N Dec. 365 (BIA 2014) Interim Decision #3809
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constitutionality of section 893.13(1)(a) of the Florida Statutes). Although
we are not aware of any legislative history pertinent to the mens rea issue in
this case, given the Supreme Court’s view of public welfare offenses
lacking a mens rea requirement, it does not appear likely that Congress was
unaware of the issue when it expanded the aggravated felony definition to
include illicit trafficking.
As we held in Matter of Davis, the term “illicit” is defined as “not
permitted or allowed; prohibited; unlawful; as an illicit trade.” 20 I&N Dec.
at 541 (quoting Black’s Law Dictionary 673 (5th ed. 1979)). Thus, we gave
effect to this plain meaning to construe the term “illicit” as simply
referencing the illegality of the trafficking activity. Id. In deciding this
aspect of Matter of Davis, we referred without further explanation to the
Tenth Circuit’s holding in Bassett v. U.S. INS, 581 F.2d 1385, 1388
(10th Cir. 1978), which set forth a similar definition for the term “illicit,”
although the State statute of conviction required some level of intentional
conduct. However, Davis did not decide whether an “illicit” act requires
knowledge of the unlawful nature of the controlled substance. It also did
not suggest such a mens rea requirement, because a person can engage in
the unlawful or illicit trading or dealing in a controlled substance without
knowing that the controlled substance that is the subject of the transaction
is illegal.
We now expressly hold that there is no such mens rea required by the
term “illicit,” at least not within the context of the statutory scheme
established by Florida, where knowledge of the substance is still required
and an affirmative defense is available to show lack of knowledge of the
illegal nature of the substance. To the extent there may have been
ambiguity in our prior holdings with regard to whether the term “illicit”
implies an intentional state of mind, we explicitly hold that it does not.
See Matter of Esqueda, 20 I&N Dec. at 862 (withdrawing from prior
precedent decisions “to the extent they indicate that aliens convicted under
a statute without any element of scienter are not subject to exclusion or
deportation”).
The DHS has argued that even a purely strict liability offense would
qualify as an “illicit trafficking” aggravated felony. We need not address
that question because the Florida statute involved in this case does not
go that far. 7
Section 893.13(1)(a) of the Florida Statutes includes an
affirmative defense for a person who possesses a controlled substance

7
Thus, we need not determine whether, for example, an offense would satisfy the
definition of “illicit trafficking” if the statute attached criminal liability for sale of drugs
to a person who thought he was delivering stolen diamonds but the package contained
a controlled substance. Cite as 26 I&N Dec. 365 (BIA 2014) Interim Decision #3809
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without knowledge of its illegal nature. Furthermore, the Florida Supreme
Court has held that although the statute eliminated the prior mens rea
requirement as to the illicit nature of the controlled substance, it still
requires that the person be aware of the presence of the substance itself.
State v. Adkins, 96 So. 3d at 422−23 (expressly rejecting the argument
that innocent conduct would be punished because “[i]n the unusual
circumstance where an individual has actual or constructive possession of
a controlled substance but has no knowledge that the substance is illicit, the
defendant may present such a defense to the jury”); see also Matter of
Esqueda, 20 I&N Dec. at 855−56 (noting that where a defense premised on
a lack of knowledge is available, the statute is not one of “strict liability”).
Because section 893.13(1)(a) retains a mens rea requirement regarding
the presence of a controlled substance and includes an affirmative defense
for ignorance of its unlawful nature, we do not consider it to be a “strict
liability” statute. We therefore conclude that “illicit trafficking” offenses
do not require a mens rea element with respect to knowledge of the illicit
nature of the controlled substance, at least when accompanied, as here, by
an affirmative defense permitting a defendant to show that he or she had no
such awareness, as well as by a requirement that the defendant be aware of
the presence of the substance (apart from its illegality).
Next, we must decide if section 893.13(1)(a)(1) is otherwise
a categorical match to the illicit trafficking clause of the Act. 8
To
determine if a State crime is a categorical match to the analogous Federal
offense, the Eleventh Circuit follows the analytical approach established in
Taylor v. United States, 495 U.S. 575 (1990), and recently set forth in
Descamps v. United States, and Moncrieffe v. Holder. See Donawa v. U.S.
Att’y Gen., 735 F.3d at 1280−81 & n.3. On this point, we are guided by our
holding in Davis, which, as noted earlier, held that to meet the definition of
“illicit trafficking” under the Act, the offense must involve a commercial
transaction. 9
Matter of Davis, 20 I&N Dec. at 541 (concluding that

8
As previously noted, there is no question that a violation of section 893.13(1)(a)(1) is
a felony, which we have found is required to fall within the “illicit trafficking” clause of
the aggravated felony definition in section 101(a)(43)(B) of the Act. See Matter of
Sanchez-Cornejo, 25 I&N Dec. at 274−75. It therefore follows that the Florida statute
and the “illicit trafficking” clause of the Act are a categorical match insofar as both are
only punishable as felonies.
9
Our interpretation that “trafficking” involves a commercial transaction, or passing of
goods from one person to another for money or other consideration, has been adopted by
the courts of appeal that have addressed it. See, e.g., Soto-Hernandez v. Holder, 729 F.3d
1, 4−5 (1st Cir. 2013) (affirming the “merchant nature” of the Board’s definition of
“trafficking”); Rendon v. Mukasey, 520 F.3d 967, 974–76 (9th Cir. 2008) (holding that
possession of a controlled substance with intent to sell contains a “trafficking element”
(continued . . .) Cite as 26 I&N Dec. 365 (BIA 2014) Interim Decision #3809
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a “business or merchant” element or the commonly understood aspect
of “trading or dealing” must be involved for an offense to be “illicit
trafficking”); see also Lopez v. Gonzales, 549 U.S. at 54 (noting that
“ordinarily ‘trafficking’ means some sort of commercial dealing”).
Applying this “commercial transaction” test, we first find that section
893.13(1)(a) is divisible as to the offenses it prohibits. See Descamps
v. United States, 133 S. Ct. at 2284 (stating that a statute is divisible
where it “comprises multiple, alternative versions of the crime”); Matter
of Chairez, 26 I&N Dec. 349, 352−53 (BIA 2014). As the generally
applicable jury instructions for a drug trafficking offense in Florida make
clear, section 893.13(1)(a) lists multiple discrete offenses, which may or
may not categorically match the “illicit trafficking” clause of section
101(a)(43)(B) of the Act. Fla. Standard Jury Instr. (Crim.) 25.2 (2013)
(stating that to prove an offense under section 893.13(1)(a) or (2)(a), the
State must prove that the defendant “[sold] [purchased] [manufactured]
[delivered] [possessed with intent to sell] [possessed with the intent to
purchase] [possessed with intent to manufacture] [possessed with intent to
deliver] a certain substance”).
For example, since it is illegal to manufacture a controlled substance
under the statute, a person could potentially be convicted of manufacturing
only a small amount of marijuana or another controlled substance for
personal use or with no remuneration. However, we need not decide
whether such conduct fits within the scope of “illicit trafficking” because
the statute is clearly divisible, and the modified categorical approach
applies.
10 See Descamps v. United States, 133 S. Ct. at 2283−85 (stating
that the modified categorical approach is appropriate to assist courts in
applying the categorical approach when assessing a “divisible” criminal
statute).
Employing the modified categorical approach, we look to the record of
conviction to determine if the respondent’s offense is categorically “illicit
trafficking.” Evidence that may be considered in applying the modified
categorical approach includes the charging document, the terms of a plea
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and is therefore “illicit trafficking in a controlled substance”); Gerbier v. Holmes, 280
F.3d 297, 305, 313 (3d Cir. 2002) (following our holding in Davis that the two elements
required to establish that a crime is “illicit trafficking” are (1) the offense is a felony
under the law of the convicting sovereign and (2) it contains a “trafficking element,” such
as the unlawful trading or dealing of a controlled substance); Kuhali v. Reno, 266 F.3d
93, 107−10 (2d Cir. 2001) (deferring to the Board’s definition in Davis as reasonable);
Navarro-Macias v. INS, 16 F. App’x 468, 471 (7th Cir. 2001) (applying the “trading or
dealing” test in Davis).
10 We note that there would also have to be a realistic probability of conviction for such
an offense under the statute. See Moncrieffe v. Holder, 133 S. Ct. at 1684−85. Cite as 26 I&N Dec. 365 (BIA 2014) Interim Decision #3809
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agreement or transcript of colloquy between the judge and the defendant
in which the factual basis for the plea was confirmed by the defendant,
or “some comparable judicial record of this information.” Shepard
v. United States, 544 U.S. 13, 26 (2005); see also Fajardo v. U.S. Att’y
Gen., 659 F.3d 1303, 1305 (11th Cir. 2011); Matter of Sanudo, 23 I&N Dec.
968, 974−75 (BIA 2006).
Count One of the information contained in the record states that
the respondent sold cocaine to a confidential informant in violation of
section 893.13(1)(a)(1) of the Florida Statutes. The judicial order
containing a finding of guilt confirms that the respondent was convicted of
selling cocaine under Count One of the information. 11 The Florida
courts have consistently held that for purposes of section 893.13(1)(a),
“consideration is part of every sale.” State v. Stewart, 374 So. 2d 1381,
1383 (Fla. 1979). Thus, selling cocaine in violation of section 893.13(1)(a)
is categorically an offense involving a “commercial transaction” and
therefore meets the “illicit trafficking” definition in Matter of Davis.
Based on the documents in the record, we conclude that the respondent’s
conviction for the sale of cocaine under section 893.13(1)(a)(1) is for an
aggravated felony as defined by section 101(a)(43)(B) of the Act. 12

Accordingly, his appeal from the Immigration Judge’s finding of
removability will be dismissed.
B. Relief From Removal
As an alien convicted of an aggravated felony, the respondent
is ineligible for cancellation of removal and asylum. See sections
208(b)(2)(A)(ii), (B)(i), 240A(a)(3) of the Act. Moreover, aggravated
felonies involving unlawful trafficking in controlled substances are
presumptively “particularly serious crimes,” and the Immigration Judge
properly found that the respondent’s aggravated felony conviction rendered
him ineligible for withholding of removal under both section 241(b)(3) of
the Act and the Convention Against Torture. See section 241(b)(3)(B)(ii)

11 This document also states that Count One includes the alleged offense of
“Cocaine/Sell/Man/Deliver/Possess W/Intent.” Therefore the order not only identifies
the statute of conviction as section 893.13(1)(a)(1), but it also establishes that the specific
controlled substance is cocaine. The relevant evidence for our purposes is the judicial
order’s reference to Count One, which clearly demonstrates that the specific statutory
element of conviction was the sale of the controlled substance.
12 In view of this conclusion, we need not reach the question whether the respondent’s
2009 conviction for possession of a controlled substance with intent to sell in violation of
section 893.13(1)(a)(2) of the Florida Statutes is also for an aggravated felony as either
“illicit trafficking” or attempted “illicit trafficking.” Cite as 26 I&N Dec. 365 (BIA 2014) Interim Decision #3809
374
of the Act; Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270, 276−77
(A.G. 2002); 8 C.F.R. §§ 1208.13(c)(1), 1208.16(d)(2) (2014). The
respondent may, however, be eligible for deferral of removal under the
Convention Against Torture.
The respondent’s claim to deferral of removal is based on his alleged
fear of the Revolutionary Armed Forces of Colombia (FARC) in
Venezuela. The Immigration Judge found that the respondent did not
adequately establish that “he would be tortured by the present government
of Venezuela.” However, under the proper standard for establishing
eligibility for deferral of removal, the respondent needs to show that it is
“more likely than not” that he will be subjected to torture “by or at the
instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity.” 8 C.F.R. §§ 1208.17(a),
1208.18(a)(1) (2014); see also Matter of J-F-F-, 23 I&N Dec. 912, 917−18
(A.G. 2006); 8 C.F.R. § 1208.16(c). Therefore the Immigration Judge’s
decision, which contained minimal explanation or analysis, did not properly
analyze the respondent’s application for deferral of removal. See generally
Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1145−46 (11th Cir. 2010)
(addressing the applicable burden of proof); Reyes-Sanchez v. U.S. Att’y
Gen., 369 F.3d 1239, 1242−43 (11th Cir. 2004). Accordingly, the record
will be remanded to the Immigration Judge.
On remand, the parties should be given an opportunity to present
additional evidence pertaining to the respondent’s application for deferral
of removal, including, but not limited to, testimony and updated country
conditions materials. The Immigration Judge should then further consider
the respondent’s request for that relief, including all necessary findings of
fact.
ORDER: The respondent’s appeal from the Immigration Judge’s
finding of removability under section 237(a)(2)(A)(iii) of the Act is
dismissed.
FURTHER ORDER: The respondent’s appeal from the denial of his
applications for cancellation of removal, asylum, and withholding of
removal under section 241(b)(3) of the Act and the Convention Against
Torture is dismissed.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.