             United States Court of Appeals
                        For the First Circuit

No. 11-2500

                        JOSEPH ALEXANDER JAMES,

                              Petitioner,

                                  v.

                ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                              Respondent.


                    PETITION FOR REVIEW OF AN ORDER
                  OF THE BOARD OF IMMIGRATION APPEALS


                                Before

                        Boudin, Selya and Dyk,*

                            Circuit Judges.


     Glenn T. Terk for petitioner.
     Anthony C. Payne, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice, with
whom Stuart Delery, Acting Assistant Attorney General, Civil
Division, and David V. Bernal, Assistant Director, were on brief
for respondent.



                           October 19, 2012




     *
         Of the Federal Circuit, sitting by designation.
          BOUDIN, Circuit Judge.   Joseph Alexander James, a native

and citizen of Jamaica, was admitted to the United States on a

visitor visa in January 1976; his status was adjusted to that of

lawful permanent resident in July of the following year.   In June

1997, he was arrested in West Hartford, Connecticut, and charged

under state statutes related to the possession and sale of drugs.

James moved to suppress evidence against him, and the proceedings

ultimately reached the Connecticut Supreme Court.   State v. James,

802 A.2d 820 (Conn. 2002).

          On October 29, 2003, by agreement with the state, James

entered a conditional plea of nolo contendere to two counts:   one

charged a violation of Conn. Gen. Stat. Ann. § 21a-277(b) (West

2003), a broad drug offenses statute covering inter alia the

manufacture, distribution, possession with intent to sell, and sale

of specified controlled substances including marijuana; the other

charged criminal attempt to possess with intent to sell, id. § 53a-

49 (defining conditions for attempt charges).

          Pursuant to his plea, James was sentenced to 42 months in

jail.   Thereafter, he pursued on appeal a Miranda waiver issue

which his plea agreement had reserved. The appeal failed, State v.

James, 887 A.2d 923, 929 (Conn. App. Ct. 2006), and in November

2010, the Department of Homeland Security began removal proceedings

against James, charging that he had been convicted of illicit

trafficking in a controlled substance, which is an aggravated


                               -2-
felony under the Immigration and Nationality Act ("INA"), and that

he had been convicted of violating a state law relating to a

controlled substance.1

          On January 28, 2011, James, represented by counsel, filed

a responsive pleading seeking to terminate the removal proceedings

or, in the alternative, to cancel removal pursuant to INA §

240A(a), 8 U.S.C. § 1229b(a).   Section 240A(a) allows the Attorney

General to cancel removal in the case of a non-citizen who (1) has

been lawfully admitted as a permanent resident for at least five

years, (2) has resided in the United States continuously for seven

years after admission, and (3) has never been convicted of an

aggravated felony.   INA § 240A(a), 8 U.S.C. § 1229b(a).

          Regardless of the ground for removal, a non-citizen

seeking discretionary cancellation must submit an application (on

a form known as Form EOIR-42), see    8 C.F.R. § 1240.20 (2012), and

"[i]f an application . . . is not filed within the time set by the

Immigration    Judge,     the    opportunity     to    file    that

application . . . shall be deemed waived."   8 C.F.R. § 1003.31(c).


     1
      See INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2006)
("aggravated felony" defined to include "illicit trafficking in a
controlled substance"); INA § 237(a)(2)(A)(iii), 8 U.S.C. §
1227(a)(2)(A)(iii) (aggravated felony as ground for removal); INA
§ 237(a)(2)(B)(I); 8 U.S.C. § 1227(a)(2)(B)(I) (conviction for
violation of "any law or regulation of a State . . . relating to a
controlled substance," except for "a single offense involving
possession for one's own use of 30 grams or less of marijuana," as
ground for removal); see also INA § 239(a)(3), 8 U.S.C. §
1229b(a)(3) (alien "convicted of any aggravated felony" not
eligible for cancellation of removal).

                                -3-
James never submitted a Form EOIR-42, and does not contest the

government's assertion that he has let the deadline pass.

             On March 22, 2011, in advance of the individual calendar

hearing, the immigration judge issued a written decision denying

James' motion to terminate and indicating that James was removable

both   on    the    ground   that    he    had   been   convicted    of   illicit

trafficking--an aggravated felony--and also of an offense under a

state law relating to a controlled substance.               The IJ reaffirmed

this decision at the April 6 individual calendar hearing, where he

ordered James to be removed to Jamaica.

             James sought review from the Board of Immigration Appeals

("BIA"); his brief to that body again made no mention of any

application for cancellation.             On August 15, 2011, the BIA issued

a two-page written decision in which it affirmed the immigration

judge's findings of removability on both grounds and dismissed

James' appeal.        James then sought review, albeit in the wrong

circuit, and after transfer to this court the challenge to the

BIA's order is now before us.

             A conviction for "illicit trafficking in a controlled

substance"     is    an   aggravated       felony   warranting      removal   and

precluding cancellation.        See note 1, above. The Connecticut drug

statute     under   which    James   was    convicted,    section    21a-277(b),

states, in relevant part, that:

             Any person who manufactures, distributes,
             sells,  prescribes, dispenses, compounds,

                                          -4-
           transports with intent to sell or dispense,
           possesses with intent to sell or dispense,
           offers, gives or administers to another person
           any controlled substance, except a narcotic
           substance, or a hallucinogenic substance other
           than marijuana, except as authorized in this
           chapter, may, for the first offense, be fined
           not more than twenty-five thousand dollars or
           be imprisoned not more than seven years or be
           both fined and imprisoned . . . .

Conn. Gen. Stat. Ann. § 21a-277(b).

           Any controlled substance within the meaning of INA §

101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), is also automatically a

controlled substance under the Connecticut statute.             Conn. Gen.

Stat. Ann. § 21a-243(g); cf. 18 U.S.C. § 924(c)(2); 21 U.S.C. §

812.   Although the state can choose to make other drugs subject to

its statute, see Conn. Gen. Stat. Ann. § 21a-243(c), James does not

argue that it has in fact done so, cf. Gonzales v. Duenas-Alvarez,

549 U.S. 183, 193 (2007), nor have we found any evidence that it

has done so.

           The more difficult issue is whether James' conviction

under section    21a-277(b)    was    for   an offense   that   would   also

comprise "trafficking"--which is true of some but not necessarily

all of the subordinate offenses listed in the Connecticut statute.

The INA (through a series of cross-references) defines "illicit

trafficking"    to   include    the     manufacture,     distribution    and

dispensing of a controlled substance, as well as possession with

intent to do any of these; INA § 101(a)(43)(B), 8 U.S.C. §

1101(a)(43)(B), cf. 18 U.S.C. § 924(c)(2); 21 U.S.C. § 841(a); but

                                      -5-
this definition does not appear to encompass offers and gifts,

which are criminalized under the Connecticut statute.2

          Accordingly,     the    IJ    in   James'    case   found   that    a

conviction   under    section    21a-277(b)    is     not   categorically    an

aggravated felony in the sense that each and every conviction under

the state statute would also comprise drug trafficking as defined

by federal law. The one other circuit to consider the question has

reached the same conclusion, see Santos v. Att'y Gen. of the United

States, 352 Fed. App'x 742, 744 (3d Cir. 2009).

          Thus, under the Taylor-Shepard precedents, the IJ could

only find that James had been convicted of an aggravated felony if

the government demonstrated that James' nolo plea was to one of the

subordinate offenses under section 21a-277(b) that constitutes

"trafficking."       Taylor v. United States, 495 U.S. 575, 600-02

(1990); Shepard v. United States, 544 U.S. 13, 19-21 (2005).                 And

the government's burden must be carried by clear and convincing

evidence, see INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A); Conteh

v. Gonzales, 461 F.3d 45, 52 (1st Cir. 2006), cert. denied, 551

U.S. 1148 (2007).


     2
      See United States v. Savage, 542 F.3d 959, 965 (2d Cir. 2008)
(Conn. Gen. Stat. § 21a-277(b) "plainly criminalizes, inter alia,
a mere offer to sell a controlled substance," which might be made
absent possession); Mendieta-Robles v. Gonzales, 226 Fed. App'x
564, 568-69 (6th Cir. 2007) (conviction under state statute that
criminalizes "gift" of drugs is not necessarily an illicit
trafficking offense under INA); see also Matter of Davis, 20 I. &
N. Dec. 536, 541 (B.I.A. 1992) ("business or merchant nature" is
"[e]ssential" to the term "trafficking" under INA).

                                       -6-
          Our cases apply the Taylor-Shepard framework in the

immigration context, see Campbell v. Holder, No. 11-2398, __ F.3d

__ (1st Cir. Oct. __, 2012); see also Carachuri-Rosendo v. Holder,

130 S. Ct. 2577, 2586 (2010).     Within that framework, the question

is not whether the individual engaged in illicit drug trafficking

but whether the conviction was for such an offense; and if there is

uncertainty about what was the offense of conviction, the sources

on which the IJ or court may rely are limited to the "records of

the convicting court."     Conteh, 461 F.3d at 53 (quoting Shepard,

544 U.S. at 23).

          One such record is the charging document, Shepard, 544

U.S. at 16; Conteh, 461 F.3d at 53.      Here, the government points to

the information, dated October 28, 2003, completed by a deputy

assistant state's attorney who identified the original two charges.

One is the criminal attempt charge which was dismissed as part of

the plea bargain.   The other, "Possession with Intent to Sell a

Controlled Substance (Marijuana) . . . IN VIOLATION OF GENERAL

STATUTE NO. 21a-277(b),"      matches almost to the word section 21a-

277(b)'s language that forbids "possess[ing] with intent to sell"

a controlled substance.

          The   information    description   is   neither   a   shorthand

description of the entire statute, cf. United States v. Gutierrez,

446 Fed. App'x 151, 154 (11th Cir. 2011) (per curiam), nor a

generic label assigned by a computer, e.g., United States v.


                                   -7-
Savage, 542 F.3d 959, 963 (2d Cir. 2008), nor is it an abstract of

judgment approved merely by clerical staff, e.g., United States v.

Gutierrez-Ramirez, 405 F.3d 352, 358 (5th Cir.), cert. denied, 546

U.S. 888 (2005).     James provides us no reason to doubt that

"Possession with Intent to Sell" in violation of section 21a-277(b)

is an offense to which James pled.3

           The BIA--in affirming the IJ--went beyond the trial court

records and cited as well the appellate proceedings in James'

original appeal. Specifically, the Board highlighted the fact that

the Connecticut appeals court, dealing with James' own reserved

claim that his Miranda rights had not been waived, referred to the

charge as "possession of a controlled substance with intent to

sell,"   James, 887 A.2d at 925.    The appellate court also provided

a detailed description of the events that preceded James' arrest

and the oral statements that James made to police while in custody,

which James had sought unsuccessfully to suppress and was now

litigating about on the appeal.4


     3
      James has argued that Connecticut law limits the use of nolo
contendere pleas as evidence in subsequent state proceedings, Town
of Groton v. United Steelworkers of Am., 757 A.2d 501, 510 (Conn.
2000), but federal law requires only proof of the conviction and
proof of such a conviction in a federal proceeding is not
controlled by state law. Molina v. INS, 981 F.2d 14, 19-20 (1st
Cir. 1992).
     4
      The opinion recounts that the Federal Express Corporation
informed West Hartford police that the company's drug sniffing dogs
had alerted employees to two boxes destined for delivery in that
town; that the police unsealed the boxes and found "two large Igloo
coolers containing approximately forty-eight pounds of marijuana

                                   -8-
          Whether    Shepard's   reference   to   the   records   of   "the

convicting court," 544 U.S. at 23, excludes records of an appeals

court decision in the same case is an unresolved question.        A Ninth

Circuit decision may have thought that it did, Morales v. Gonzales,

478 F.3d 972, 983 (9th Cir. 2007), but Morales relied on BIA

precedents and the BIA subsequently said Morales "misread" those

precedents.   See In re N-- A-- M--, 24 I. & N. Dec. 336, 344

(B.I.A. 2007).      Anyway, the charging document establishes that

James did plead to possessing a controlled substance with intent to

sell and that is all we need decide.

          We also need not consider the government's alternative

argument that, even if no aggravated felony was established, the

record showed (1) that James' conviction under section 21a-277(b)

was a conviction under a state law relating to a controlled

substance, which would render him removable, and (2) that his

eligibility for cancellation was forfeited by his failure to submit

the mandatory application.    The IJ and BIA rested on the record of

conviction to establish a conviction for trafficking and so do we.

          The petition for review is denied.




between them"; and that the police then arranged a controlled
delivery followed by James' arrest, interrogation and the filing of
charges against him. See James, 887 A.2d at 925-26 & n.3.

                                  -9-
