Victor Veloz-Matos v. U.S. Attorney General

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 1 of 13

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12403

Non-Argument Calendar

____________________

VICTOR VELOZ-MATOS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A209-075-351

____________________

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 2 of 13

2 Opinion of the Court 23-12403

Before WILSON, JORDAN, and LAGOA, Circuit Judges.

PER CURIAM:

Victor Veloz-Matos petitions for review of an order of the

Board of Immigration Appeals dismissing his appeal of an order is-

sued by an immigration judge denying his application for cancella-

tion of removal. Upon consideration, we deny Mr. Veloz-Matos’

petition for review.

I

Mr. Veloz-Matos, a citizen and native of Mexico, entered the

United States without inspection, admission, or parole sometime

in 1994. In July of 1995, he pled no contest to, and was found guilty

of, possession of a controlled substance, in violation of Cal. Health

& Safety Code § 11350(a) and driving under the influence, in viola-

tion of Cal. Veh. Code § 23152(a) & (b). On December 6, 2017, the

government initiated removal proceedings against him, citing as

grounds for removal his lack of proper travel documents and his

entry into the United States without admission or parole.

On January 19, 2017, Mr. Veloz-Matos appeared with coun-

sel who requested that he be released on bond. Counsel also told

the immigration judge that there was a seemingly relevant arrest

in California, and that he was trying to obtain the records for that

arrest. The immigration judge granted bond and adjourned the

hearing.

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 3 of 13

23-12403 Opinion of the Court 3

On April 27, 2017, Mr. Veloz-Matos appeared again with

counsel. At this appearance, he admitted the allegations in the no-

tice to appear and conceded that he was subject to removal. He

also, through counsel, submitted an application for cancellation of

removal. The immigration judge then asked if Mr. Veloz-Matos

had been convicted of any offenses that would make him ineligible

for cancellation of removal. In response, counsel said that, alt-

hough there was an old California case, the details of which he was

investigating, he did not believe that case would affect Mr. Veloz-

Matos’ eligibility for cancellation of removal. The immigration

judge granted a continuance to allow Mr. Veloz-Matos time to

gather and submit relevant documents to support his application

for cancellation of removal. The immigration judge also admitted

the notice to appear as an exhibit at this hearing.

A few months later, the government submitted Mr. Veloz-

Matos’ conviction record, which showed that he pled no contest

to, and was found guilty of, possession of a controlled substance

under Cal. Health & Safety Code § 11350(a) in 1995. The convic-

tion record did not specify what controlled substance formed the

basis for the conviction.

At the next court appearance, on December 27, 2017, the

government and Mr. Veloz-Matos agreed to another adjournment.

Mr. Veloz-Matos’ counsel told the immigration judge that he was

looking into overturning the 1995 California conviction to aid the

application for cancellation of removal.

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 4 of 13

4 Opinion of the Court 23-12403

On February 19, 2019, approximately fourteen months later,

Mr. Veloz-Matos appeared before a different immigration judge.

Mr. Veloz-Matos’ case had been reassigned sometime after his De-

cember 2017 appearance.

At this hearing, the immigration judge admitted three addi-

tional documents as exhibits— Mr. Veloz-Matos’ application for

cancellation for removal, a police report that showed he had re-

cently been a victim of an assault, and Mr. Veloz-Matos’ 1995 con-

viction record, which the government submitted. The immigra-

tion judge asked counsel if he wished to add anything else to the

record with respect to the 1995 California conviction. Counsel said

he had no additional submissions. He explained, however, that alt-

hough Mr. Veloz-Matos had been unable to find any documents or

records that identified what controlled substance was at issue in the

1995 California conviction, it was Mr. Veloz-Matos’ recollection

that the controlled substance was “marijuana and not another

drug.”

The immigration judge then pretermitted and denied Mr.

Veloz-Matos’ application for cancellation of removal and ordered

his removal to Mexico. In denying the application, the immigra-

tion judge concluded that Mr. Veloz-Matos had failed to meet his

burden of showing that he had not been convicted of a disqualify-

ing offense. The immigration judge also held that § 11350(a) is

much broader than its federal counterpart—in that it covered sev-

eral substances that are not controlled under federal law, but that

the statute is divisible. In any event, the immigration judge

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 5 of 13

23-12403 Opinion of the Court 5

ultimately found that Mr. Veloz-Matos had not met his burden of

showing that he was eligible for cancellation of removal. The im-

migration judge also acknowledged that the record was “not com-

pletely clear as to what the actual drug involved in that conviction

[was].”

Mr. Veloz-Matos timely appealed the immigration judge’s

decision to the BIA. Although no briefs were filed, Mr. Veloz-Ma-

tos stated in his notice of appeal that the immigration judge “erred

in pretermitting the case as there was no proof in the record to es-

tablish the [ ] guilt for the commission of an aggravated felony

(drug offense).” A.R. at 9. Mr. Veloz-Matos also argued that the

immigration judge should have conducted a “merits hearing.” Id.

Finding no apparent error with the immigration judge’s de-

cision, the BIA, in a one-member order, affirmed and adopted the

immigration judge’s decision and dismissed Mr. Veloz-Matos’ ap-

peal. Mr. Veloz-Matos timely filed this petition for review.

II

Our review of the BIA’s legal conclusions is de novo. See Del-

gado v. U.S. Att’y Gen., 487 F.3d 855, 860 (11th Cir. 2007). When the

BIA issues a decision, we review only that decision. Gonzalez v. U.S.

Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). But when the BIA

expressly adopts the immigration judge’s decision or agrees with

the immigration judge’s reasoning, we review both decisions. See

id.

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 6 of 13

6 Opinion of the Court 23-12403

III

Under § 240A(b) of the Immigration & Nationality Act, 8

U.S.C. § 1229b(b)(1), the Attorney General has the discretionary

authority to cancel the removal of an otherwise removable non-

citizen where certain conditions are met. To establish eligibility for

cancellation of removal, an applicant like Mr. Veloz-Matos must

demonstrate that (i) he has resided continuously in the United

States for at least ten years immediately preceding the application;

(ii) he has been a person of good moral character; (iii) he has not

been convicted of an enumerated controlled substance offense; and

(iv) his removal would result in exceptional and extremely unusual

hardship to an immediate relative who is a United States citizen or

a lawful permanent resident. See 8 U.S.C. § 1229b(b)(1). See also

Pereida v. Wilkinson, 592 U.S. 224, 227–28 (2021).

It is Mr. Veloz-Matos’ burden to establish eligibility “clearly

and beyond doubt;” and at issue here is whether he met this burden

with respect to showing that he has not been convicted of a con-

trolled substance offense. See Pereida, 592 U.S. at 232. We conclude

that he has not met his burden.

A

For purposes of § 1229b(b)(1), a controlled substance offense

that will result in removal is limited to offenses that involve feder-

ally controlled substances. Accordingly, a state controlled sub-

stance offense that involves a substance not federally controlled is

not a disqualifying offense under § 1229b(b)(1)(C).

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 7 of 13

23-12403 Opinion of the Court 7

To determine when a state controlled substance offense car-

ries immigration consequences such as removal, we “apply a cate-

gorical or modified categorical approach, depending on the statu-

tory scheme” of the statute at issue. Donawa v. U.S. Att’y Gen., 735

F.3d 1275, 1280 (11th Cir. 2013). Under the categorical approach,

we look “not to the facts of the particular prior case, but instead to

whether the state statute defining the crime of conviction categor-

ically fits within the generic federal definition of a corresponding”

crime. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). “[A] state of-

fense is a categorical match with a generic federal offense only if a

conviction of the state offense necessarily involved facts equating

to the generic federal offense.” Id. (quotation marks omitted).

If, however, the statute of conviction is broader than the fed-

eral generic definition and “punishes some conduct that would sat-

isfy the elements of a federal felony and some conduct that would

not,” we must determine if the statute is divisible. Donawa, 735

F.3d at 1280. A statute is divisible when it “lists a number of alter-

native elements that effectively create several different crimes.” Id.

at 1281. “Elements are the ‘constituent parts’ of a crime’s legal def-

inition—the things the ‘prosecution must prove to sustain a con-

viction.’” Mathis v. United States, 579 U.S. 500, 504 (2016) (some

quotation marks omitted) (quoting Black’s Law Dictionary 634

(10th ed. 2014)).

If the statute is divisible, we apply the “modified categorical

approach.” Under this approach, we look to certain materials, such

as indictments and jury instructions, to determine which

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 8 of 13

8 Opinion of the Court 23-12403

alternative [elements] formed the basis of the defendant’s prior

conviction.” Descamps v. United States, 570 U.S. 254, 257 (2013).

In deciding whether a statue is divisible, we look to the plain

language of the statute and to the decisions of the governing juris-

diction. See Cintron v. U.S. Att’y Gen., 882 F.3d 1380, 1385 (11th Cir.

2018). We may also review other sources like jury instructions and

indictments. See id. If the statute is indivisible, we are bound by

the initial determination that there is no categorical match, which

means the conviction is not a controlled substance offense for pur-

poses of the INA.

Here the relevant statute is § 11350(a) of the California

Health & Safety Code, which criminalizes the possession of:

any controlled substance specified in subdivision (b),

(c), (e), or paragraph (1) of subdivision (f) of Section

11054, specified in paragraph (14), (15), or (20) of sub-

division (d) of Section 11054, or specified in subdivi-

sion (b) or (c) of Section 11055, or specified in subdi-

vision (h) of Section 11056, or (2) any controlled sub-

stance classified in Schedule III, IV, or V which is a

narcotic drug, unless upon the written prescription of

a physician, dentist, podiatrist, or veterinarian li-

censed to practice in this state.

Cal. Health & Safety Code § 11350(a).

The parties agree that § 11350(a) is not a categorical match

for the federal definition of a controlled substance offense. Indeed,

at the time of Mr. Veloz-Matos’ conviction, § 11350(a) covered

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 9 of 13

23-12403 Opinion of the Court 9

substances such as Dimethylamphetamine, N-Ethylmethampheta-

mine, and chorionic gonadotropin, which were not controlled un-

der federal law. See Cal. Health & Safety Code § 11350(a)(1991).

The parties part ways, however, on what the legal consequence of

this conclusion ought to be.

According to Mr. Veloz-Matos, the inquiry should end here

because § 11350(a) is indivisible; and because this is the case, his

conviction was not a controlled substance under the INA. The gov-

ernment, on the other hand, argues that we must apply the modi-

fied categorical approach because § 11350(a) is divisible. And, un-

der this approach, the government further argues, Mr. Veloz-Ma-

tos is entitled to relief only if he can show that his conviction in-

volved a substance not federally controlled, and he has failed to do

so. As explained below, we agree with the government.

Although the plain text of § 11350(a) does not tell us whether

the statute is divisible or not, California law unequivocally tells us

that it is. California state courts have consistently upheld separate

convictions and separate punishments for simultaneous possession

of different controlled substances under § 11350 and its predecessor

statutes. For example, in one case the defendant was charged with

and convicted on three separate counts of possession of heroin, ma-

rijuana, and amidone, in violation of § 11350(a)’s predecessor stat-

ute. See People v. Lopez, 169 Cal. App. 2d 344, 345 (Cal. Ct. App.

1959). On appeal, the defendant argued that he “was punished

three times for a single act.” Id. at 350. The court unequivocally

disagreed. It explained that the defendant was appropriately

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 10 of 13

10 Opinion of the Court 23-12403

charged and convicted because “the possession of each of the three

different and distinct types of narcotics, even at the same time, con-

stituted three separate offenses.” Id. at 351.

Since Lopez, California courts have continued to hold that it

is appropriate to impose multiple punishments for simultaneous

possession of various controlled substances. See, e.g., People v.

Barger, 40 Cal. App. 3d 662, 672 (Cal. Ct. App. 1974) (“California

courts have uniformly held that [California law] does not preclude

multiple punishment for simultaneous possession of various nar-

cotic drugs.”); People v. Buchanan, 248 Cal. App. 4th 603, 611 (Cal.

Ct. App. 2016) (same); People v. Hudson, 244 Cal. App. 4th 1318, 1324

(Cal. Ct. App. 2016) (leaving undisturbed separate convictions for

one count of possession of cocaine and one count of possession of

heroin brought under § 11350(a)). See also People v. Rouser, 59 Cal.

App. 4th 1065 (Cal. Ct. App. 1997) (noting that the defendant in

Lopez was “separately convicted under Health and Safety Code [§]

11500 [now § 11350] for possession of heroin, of marijuana and of

amidone”).

In addition, the California Supreme Court has confirmed, al-

beit without directly deciding, the vitality of this principle. See Peo-

ple v. Jones, 278 P.3d 821, 827 (Cal. 2012) (emphasizing that it was

not “cast[ing] doubt on the cases” holding that “simultaneous pos-

session of different items of contraband are separate crimes” (quo-

tations and citations omitted)).

Jury instructions also confirm our understanding. As the

Ninth Circuit recently observed in an analogous case, see Lazo v.

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 11 of 13

23-12403 Opinion of the Court 11

Wilkinson, 989 F.3d 705, 713-14 (9th Cir. 2021), the relevant jury

instructions require that the specific controlled substance must be

identified, and for the jury to convict, “the jury must unanimously

find that the defendant possessed that particular substance.” Lazo,

989 F.3d at 713 (citing Jud. Council of Cal., Criminal Jury Instruc-

tions, No. 2304 (2020) and California Jury Instructions—Criminal,

No. 12.00 (6th ed. 1996)).

Accordingly, we conclude that § 11350(a) is divisible because

it effectively creates a different crime based on the identity of the

controlled substance, and an offender may receive separate punish-

ments for simultaneously possessing different controlled sub-

stance. Mr. Veloz-Matos has cited no authority in support of his

contention that § 11350(a) is indivisible; nor has he explained why

California law compels a different outcome.

B

Because we conclude that § 11350(a) is divisible, we next ask

whether Mr. Veloz-Matos met his burden of showing that his 1995

California conviction was not for a disqualifying controlled sub-

stance offense. “[W]here . . . the alien bears the burden of proof

and was convicted under a divisible statute containing some crimes

that qualify as [disqualifying] crimes . . ., the alien must prove that

his actual, historical offense of conviction isn’t among them.”

Pereida, 592 U.S. at 236. This Mr. Veloz-Matos has failed to do.

The entirety of the evidentiary record below consisted of (i)

the notice to appear; (ii) Mr. Veloz-Matos’ application for cancella-

tion of removal, which included tax and property records; (iii) an

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 12 of 13

12 Opinion of the Court 23-12403

arrest affidavit that showed that Mr. Veloz-Matos was recently a

victim of an assault; and (iv) the 1995 California conviction record,

which the government submitted. Mr. Veloz-Matos submitted no

evidence, not even a sworn statement, related to the 1995 Califor-

nia conviction.

The closest attempt at providing any evidence was Mr. Ve-

loz-Matos’ counsel’s statement to the immigration judge that Mr.

Veloz-Matos’ recollection was that his conviction involved “mari-

juana and not another drug.” But this does not do much, if any-

thing, for Mr. Veloz-Matos because a lawyer’s unsworn statement

is not considered evidence. See United States v. Washington, 714 F.3d

1358, 1361 (11th Cir. 2013).

Even if Mr. Veloz-Matos may have done his best to locate

additional documents and was simply unable to, the Supreme

Court has explained that “evidentiary gaps . . . work against the

[noncitizen] seeking relief from a lawful removal order” even if the

“record of conviction is unavailable or in-complete through no

fault of his own.” Pereida, 592 U.S. at 240.

Because Mr. Veloz-Matos provided no evidence—much less

evidence that is “clear[ ] and beyond doubt”—to show that he was

not convicted of a disqualifying offense, he failed to meet his bur-

den of proving his eligibility for cancellation of removal. See

Pereida, 592 U.S. at 232. We therefore affirm the immigration

judge’s decision pretermitting and denying Mr. Veloz-Matos’ appli-

cation.

USCA11 Case: 23-12403 Document: 25-1 Date Filed: 08/05/2024 Page: 13 of 13

23-12403 Opinion of the Court 13

C

We also reject Mr. Veloz-Matos’ argument that he “was

barred from applying for and presenting evidence in favor of his

application for cancellation of removal” and that his due process

rights were violated. Petitioner’s Br. at 16. Mr. Veloz-Matos was

granted continuances that spanned a little over two years to obtain

additional documents or proof to show what controlled substance

was involved in his conviction. He was therefore given ample time

and opportunity to present favorable evidence.

IV

We deny Mr. Veloz-Matos’ petition for review.

PETITION DENIED.