                Case: 17-11002        Date Filed: 11/15/2018       Page: 1 of 4


                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 17-11002
                               ________________________

                                 Agency No. A041-455-548



DEON JONES,

                                                                                      Petitioner,

                                             versus

U.S. ATTORNEY GENERAL,

                                                                                   Respondent.

                               ________________________

                         Petition for Review of a Decision of the
                              Board of Immigration Appeals
                               ________________________

                                    (November 15, 2018)

Before NEWSOM and HULL, Circuit Judges, and ROYAL, ∗ District Judge.

HULL, Circuit Judge:



       ∗Honorable   C. Ashley Royal, United States District Judge for the Middle District of
Georgia, sitting by designation.
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      Deon Angella Jones, a native and citizen of Jamaica, petitions for review of

the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration

Judge’s (“IJ”) order of removal. In 1988, Jones was admitted to the United States

as a lawful permanent resident.

      In 2014, the Department of Homeland Security (“DHS”) issued Jones a

Notice to Appear, charging her as removable (1) under Immigration and

Nationality Act (“INA”) § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), for

having been convicted of an aggravated felony as defined in INA § 101(a)(43)(B),

8 U.S.C. § 1101(a)(43)(B); and (2) under INA § 237(a)(2)(B)(i), 8 U.S.C.

§ 1227(a)(2)(B)(i), for having been convicted of a controlled substance offense.

      Jones did not contest her removability for having been convicted of a

controlled substance offense. Further, Jones has since been removed back to

Jamaica and remains there now. However, Jones did file an application for

cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a), which

provides that the Attorney General may grant discretionary relief from removal for

qualifying aliens who have not been convicted of an aggravated felony. INA

§ 240A(a)(3), 8 U.S.C. § 1229b(a)(3). Jones contended her convictions did not

qualify as aggravated felonies as defined in section 101(a)(43)(B) of the INA. In

2016, the IJ issued a written decision denying Jones’s application for cancellation

of removal.


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       The BIA affirmed and dismissed Jones’s appeal. The BIA concluded that

Jones was not eligible for cancellation of removal. Jones petitions for review. 1

       One of the many crimes that constitutes an “aggravated felony” under the

INA is “illicit trafficking in a controlled substance (as defined in section 802 of

Title 21), including a drug trafficking crime (as defined in section 924(c) of Title

18).” 8 U.S.C. § 1101(a)(43)(B). One problem for the government here is that the

government has not argued, either before this Court or even the BIA, that Jones’s

conviction qualifies under the “illicit trafficking” prong of the INA’s aggravated

felony definition. The government therefore has waived any argument about the

“illicit trafficking” prong. This case at best involves only the second portion of the

definition.

       As to the second portion of the definition, a “drug trafficking crime” under

§ 1101(a)(43)(B) includes “any felony punishable under the Controlled Substances

Act [(“CSA”)].” 18 U.S.C. § 924(c)(2); 8 U.S.C. § 1101(a)(43)(B). Thus, for a

state offense to qualify as a drug trafficking crime under § 1101(a)(43)(B), the

state offense must punish conduct that would be punishable as a felony under the

federal CSA. See Lopez v. Gonzales, 549 U.S. 47, 60, 127 S. Ct. 625, 633 (2006).

The corresponding federal offense to which we must look is 21 U.S.C. § 841(a)(1),

which makes it a felony “for any person knowingly or intentionally” to

       1
       We review de novo whether a conviction qualifies as an aggravated felony under the
INA. Spaho v. U.S. Att’y Gen., 837 F.3d 1172, 1176 (11th Cir. 2016).
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“manufacture, distribute, or dispense, or possess with intent to . . . distribute . . . a

controlled substance.” 21 U.S.C. § 841(a)(1).

       Based on the particular record and argument before us, we conclude that the

Respondent failed to carry its burden to show Jones was convicted of an

“aggravated felony” under the second prong. We grant Jones’s petition for review,

vacate the BIA’s decision, and remand for further proceedings. On remand the

Attorney General should exercise his discretion and decide whether or not to

cancel Jones’s removal. See 8 U.S.C. § 1229b(a).

       PETITION GRANTED.




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