IN THE SUPREME COURT OF THE UNITED STATES. January Term, Anita Kurzban. Petitioner, Attorney General of the United States, Respondent.

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1 No IN THE SUPREME COURT OF THE UNITED STATES January Term, 2012 Anita Kurzban Petitioner, v. Attorney General of the United States, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR RESPONDENT Team R1 Counsel for Respondent

2 QUESTIONS PRESENTED I. Whether under the Immigration and Nationality Act, persecution in retaliation for the acts of a family member is persecution on account of membership in a family for withholding of removal purposes. II. Whether a state felony conviction for possession of marijuana, with intent to deliver, constitutes an aggravated felony under federal immigration law causing Petitioner to be ineligible for asylum. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iv JURISDICTIONAL STATEMENT vi STATEMENT OF THE CASE I. Statement of Facts II. Procedural History SUMMARY OF THE ARGUMENT ARGUMENT I. Retaliation for the acts of a family member is not persecution on account of membership in a family for withholding of removal purposes under the Immigration and Nationality Act A. Qualification as a refugee under the INA B. Petitioner has failed to show persecution on account of her membership in the Kurzban family i. Persecution motivated by personal revenge does not equate to persecution on account of membership in a particular social group C. Application of Chevron deference to asylum claims II. Petitioner is statutorily ineligible for withholding of removal because Petitioner s state felony drug conviction constitutes an aggravated felony A. Petitioner has failed to meet her burden, of showing by a preponderance of the evidence, that she is statutorily eligible for withholding of removal B. Petitioner s felony drug conviction constitutes an aggravated felony because it is punishable as a felony under the Controlled Substances Act ii

4 i. The Fourteenth Circuit properly concluded that Petitioner s state drug conviction constitutes an aggravated felony under the hypothetical felony route ii. iii. iv. Petitioner s state felony conviction constitutes an aggravated felony under the formal categorical approach An application of the modified categorical approach is not warranted Under a modified categorical approach, Petitioner s felony drug conviction constitutes an aggravated felony C. The mitigating exception included in 21 U.S.C. 841(b)(4) is inapplicable i. 841(b)(1)(D), not 841(b)(4) sets forth the statutory maximum ii. iii. iv. Petitioner s state felony drug conviction does not constitute simple possession It is irrelevant that Petitioner s drug conviction involved an unspecified amount of marijuana and no remuneration.. 23 Petitioner has failed to meet her burden to show that the mitigating exception included in 21 U.S.C. 841(b)(4) is applicable CONCLUSION CERTIFICATION OF ADHERENCE TO COMPETITION RULES iii

5 United States Supreme Court Cases TABLE OF AUTHORITIES Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). 12, 13, 14 Fed. Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) , 14 Gonzales v. Thomas, 547 U.S. 183 (2006) Lopez v. Gonzales, 549 U.S. 47 (2006) , 17, 23 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) Shepard v. United States, 544 U.S. 13 (2005) Taylor v. United States, 495 U.S. 575 (1990) , 19 United States Court of Appeals Cases Batrez Gradiz v. Gonzales, 490 F.3d 1206 (10th Cir. 2007) , 19, 23 Berishaj v. Ashcroft, 378 F.3d 314 (3d Cir. 2004) , 7 Borja v. INS, 175 F.3d 732 (9th Cir. 1999) Catwell v. Att y Gen. of U.S., 623 F.3d 199 (3d Cir. 2010) , 19, 21 Demiraj v. Holder, 631 F.3d 194 (5th Cir. 2011) passim Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) Evanson v. Att y Gen. of U.S., 550 F.3d 284 (3d Cir. 2008) Garcia v. Att y Gen. of U.S., 462 F.3d 287 (3d Cir. 2006) , 19, 21 Garcia v. Holder, 638 F.3d 511 (6th Cir. 2011) , 23, 24 Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. 2003) Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) Jeune v. Att y Gen. of U.S., 476 F.3d 199 (3d Cir. 2007) Julce v. Mukasey, 530 F.3d 30 (1d Cir. 2008) , 21, 22, 24 Ontunez-Tursios v. Ashcroft, 303 F.3d 341 (5th Cir. 2002) , 8, 14 Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008) , 19 Rosas-Castaneda v. Holder, 655 F.3d 875 (9th Cir. 2011) Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006) , 16 Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) , 20 Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) Thuri v. Ashcroft, 380 F.3d 788 (5th Cir. 2004) , 13 Torres v. Mukasey, 551 F.3d 616 (7th Cir. 2008) , 11 United States v. Bartholomew, 310 F.3d 912 (6th Cir. 2002) , 24 United States v. Eddy, 523 F.3d 1268 (10th Cir. 2008) , 24 United States v. Hamlin, 319 F.3d 666 (4th Cir. 2003) , 24 United States v. Outen, 286 F.3d 622 (2d Cir. 2002) , 24 United States v. Walker, 302 F.3d 322 (5th Cir. 2002) , 24 Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003) iv

6 Board of Immigration Appeals Cases In re C-A-, 23 I. & N. Dec. 951 (B.I.A. 2006) In re Davis, 20 I. & N. Dec. 536 (B.I.A. 1992) Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985) Matter of Aruna, 24 I. & N. Dec. 452 (B.I.A. 2008) Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987) , 10 Statutes 8 C.F.R (d) (2011) , 16 8 U.S.C. 1101(a)(42)(A) (2006) passim 8 U.S.C. 1101(a)(43)(B) (2006) , 17, 19 8 U.S.C. 1227(a)(2)(A)(iii) (2006) , 19 8 U.S.C. 1229a(4)(A)(1) (2006) U.S.C. 1229a(c)(3) (2006) U.S.C. 1231(b)(3)(A) (2006) U.S.C. 1231(b)(3)(B) (2006) U.S.C. 924(c)(2) (2006) , U.S.C. 3559(a) (2006) U.S.C. 801 (2006 & Supp. 2010) U.S.C. 802(6) (2006) U.S.C. 802(8) (2006) U.S.C. 812, Schedule I, (c)(10) (2006) U.S.C. 841(a)(1) (2006) passim 21 U.S.C. 841(b)(1)(D) (2006 & Supp. 2010) passim 21 U.S.C. 841(b)(4) (2006) passim 21 U.S.C. 846 (2006) Fraternia Penal Code 1173(a) passim Fraternia Penal Code 1173(b) Wyo. Stat. Ann (2011) v

7 JURISDICTIONAL STATEMENT A statement of jurisdiction has been omitted in accordance with the rules of the U.C. Davis School of Law Asylum and Refugee National Moot Court Competition. vi

8 No IN THE SUPREME COURT OF THE UNITED STATES January Term, 2012 Anita Kurzban Petitioner, v. Attorney General of the United States, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR RESPONDENT

9 STATEMENT OF THE CASE I. Statement of Facts Petitioner, Anita Kurzban, was born in the country of Purifica. (R. p. 4). Petitioner s father, John Kurzban, was a reporter in Atos, Purifica. (R. p. 4). Mr. Kurzban, through the course of his employment, voluntarily began producing a documentary focusing on the Atos city mob. (R. p. 4). Through his investigation, Mr. Kurzban discovered Caro Tortolucci was the alleged leader of the mob. (R. p. 4). Upon learning of the proposed documentary, Mr. Tortolucci began threatening Mr. Kurzban for his involvement. (R. p. 4). Notwithstanding these threats, Mr. Kurzban aired the documentary in April (R. p. 4). In retaliation, members of the mob began physically assaulting Mr. Kurzban. (R. p. 4). Mr. Kurzban, believing rumors that Mr. Tortolucci s mob controlled the police, opted not to call the authorities after this incident. (R. p. 4). In May 2004, Mr. Kurzban and Petitioner entered the United States illegally and settled in Crawford, Fraternia. (R. p. 4). However, all other members of the Kurzban family remained in Purifica. (R. p. 5). In retaliation of Mr. Kurzban s documentary, Mr. Tortolucci set Mr. Kurzban s home ablaze. (R. p. 5). Aware of Mr. Tortolucci s retaliatory actions, Mr. Kurzban returned to Purifica. (R. p. 5). Mr. Tortolucci s personal vendetta against Mr. Kurzban continued when he was kidnapped by the mob. (R. p. 5). During the kidnapping, Mr. Kurzban suffered from a non-fatal gunshot wound. (R. p. 5). Additionally, in furtherance of his personal vendetta against Mr. Kurzban, Mr. Tortolucci s mob targeted individuals close to Mr. Kurzban. 2

10 (R. p. 5). Local authorities have been unable to curtail Mr. Tortolucci s retaliatory actions against Mr. Kurzban. (R. p. 5). Meanwhile, Petitioner remained in Fraternia where she lived with her boyfriend, a member of the local city gang. (R. p. 5). A few months after arrival to Fraternia, on August 5, 2004, Petitioner was arrested by local police on felony drug charges. (R. p. 6). Petitioner pled no contest to attempted possession of an unspecified amount of marijuana with intent to deliver. 1 (R. p. 6). Additionally, in November 2004, Petitioner and her boyfriend were stopped on suspicion of gang-related activities. (R. p. 6). Upon discovery that Petitioner was an alien with a criminal conviction, Department of Homeland Security ( DHS ) and Immigration and Customs Enforcement ( ICE ) agents detained Petitioner and placed her in removal proceedings for entering the United States without admission and conviction of an aggravated felony. (R. p. 6). II. Procedural History After being arrested and detained by ICE agents, Petitioner was placed in removal proceedings. (R. p. 6). Attempting to avoid deportation, Petitioner filed for asylum and withholding of removal. (R. p. 7). The Immigration Judge ( IJ ) sustained both charges of removal and denied Petitioner s application for asylum. (R. p. 7). Furthermore, the IJ found that Petitioner had failed to meet her burden of showing fear of persecution on account of her membership in the Kurzban family. (R. p. 7). On appeal, the Board of Immigration Appeals ( BIA ) affirmed the IJ s decision denying Petitioner s application for asylum and withholding of removal. (R. p. 7). Petitioner appealed to the United States Court of Appeals for the Fourteenth Circuit, which affirmed the decisions of the lower 1 Fraternia Penal Code 1173(a) makes it a felony to manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance.... This section applies to marijuana of amounts less than 5 kilograms or fewer than 20 plants. 3

11 courts. (R. p. 11). The case is now before this Court on Writ of Certiorari. (R. p. 1). Petitioner claims that her state felony drug conviction does not rise to the level of an aggravated felony and that the IJ and BIA erroneously denied her application for asylum and/or withholding of removal. (R. p. 7). SUMMARY OF THE ARGUMENT Both the BIA and the Fourteenth Circuit correctly denied Petitioner s asylum and withholding of removal claims. For Petitioner s claims to succeed, she must first qualify as a refugee under the Immigration Nationality Act ( Act ). Secondly, even if Petitioner qualifies as a refugee, a conviction of an aggravated felony renders her ineligible for withholding of removal. Petitioner s claim fails on both issues. Asylum is a discretionary remedy. Under the Act, to be eligible for asylum, the applicant must prove they would be subject to or have a well-founded fear of persecution upon return to their home country. Additionally, the applicant must show a nexus between the persecution and an area protected by the Act. Withholding of removal, mandatory if all elements are met, requires Petitioner to show that it is more likely than not she would be subjected to persecution upon return to her home country. Here, Petitioner claims a well-founded fear of persecution if she were to return to Purifica because of her membership in the Kurzban family. Although familial relationships have been accepted as possible particular social groups, the feared persecution must arise directly from such membership. Petitioner has failed to show the requisite nexus between her membership in the Kurzban family and the persecution she may face if returned to Purifica. To meet this requirement, Petitioner must establish persecution on account of her membership in a particular social group as such. 4

12 Conversely, persecution that stems from purely personal motives or vendettas fails to trigger the requisite nexus. Here, it is undisputed that Petitioner fears retaliation from Mr. Tortolucci. However, this threat arises from Mr. Tortolucci s purely personal vendetta with Petitioner s father. Other than Petitioner s father s documentary, Mr. Tortolucci has no quarrels with the Kurzban family. Thus, because Petitioner has failed to show a wellfounded fear of persecution from anything other than a purely personal vendetta, she fails to qualify as a refugee. Assuming, arguendo, Petitioner was able to establish her status as a refugee, she would still be ineligible for asylum and withholding of removal. An applicant who has been convicted of an aggravated felony is ineligible for such benefits. An applicant s state conviction must be punishable as a federal felony in order for that crime to be characterized as an aggravated felony. This can be proved by application of the hypothetical felony rule. Under the formal categorical approach, if the elements of the state conviction mirror the elements of a federal felony it will be treated as an aggravated felony. Here, Petitioner was convicted under Fraternia Penal Code 1173(a) which makes it a felony to possess with intent to deliver a controlled substance. Petitioner pled no contest to attempted possession of an unspecified amount of marijuana with intent to deliver. Under the hypothetical felony rule, Petitioner s conviction matches the elements of a felony under the Controlled Substances Act ( CSA ). Thus, Petitioner s conviction bars her from withholding of removal benefits. Petitioner alleges her conviction is mere simple possession and falls under the mitigating provision of the CSA. However, Petitioner has failed to prove applicability of the mitigating provision. 5

13 Therefore, even if Petitioner proves her refugee status, because Petitioner s conviction qualifies as an aggravated felony under the hypothetical federal felony rule, Petitioner is ineligible for withholding of removal. For these reasons, this Court should affirm the decision of the BIA and Fourteenth Circuit and deny Petitioner s asylum and withholding of removal claims. ARGUMENT I. RETALIATION FOR THE ACTS OF A FAMILY MEMBER IS NOT PERSECUTION ON ACCOUNT OF... MEMBERSHIP IN A FAMILY FOR WITHHOLDING OF REMOVAL PURPOSES UNDER THE IMMIGRATION AND NATIONALITY ACT. A. Qualification as a refugee under the INA. As a threshold matter to determine eligibility for asylum and/or withholding of removal the applicant must qualify as a refugee. 8 U.S.C. 1101(a)(42)(A) (2006). Under the Act, a refugee is defined as [a]ny person who is outside any country of such person s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of membership in a particular social group. Id. (emphasis added). Thus, an individual applying for asylum must establish that they would be subject to persecution or have a well-founded fear of persecution if they were removed back to their native country. Id. The applicant bears the burden of proof and must show a reasonable possibility of persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987). If asylum is denied, on appeal, the applicant must show substantial 6

14 evidence 2 in the record in support of the persecution or a well-founded fear of persecution. Berishaj v. Ashcroft, 378 F.3d 314, (3d Cir. 2004). Here, Petitioner claims fear of persecution arising from Mr. Tortolucci s retaliatory actions against Mr. Kurzban. (R. p. 5). Secondly, the applicant must then prove the persecution occurred on account of one of the five protected grounds. 8 U.S.C. 1101(a)(42)(A). The five protected grounds under 1101(a)(42)(A) are race, religion, nationality, membership in a particular social group ( PSG ), or political opinion. Id. PSG s based on innate characteristics such as sex or family relationship are generally easily recognizable and understood by others to constitute social groups. In re C-A-, 23 I. & N. Dec. 951, 959 (B.I.A. 2006). The Ninth Circuit has clarified this definition, stating that groups sharing immutable characteristics, such as a familial relationship or sexual identity, could also be considered social groups within the meaning of the refugee definition. Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000); see also Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985). The Fifth Circuit expands this definition by including individuals who share a common characteristic that they either cannot change or should not be required to change because it is fundamental to their individual identities or consciences. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 349 (5th Cir. 2002). Thus, to establish an individual as a member of a PSG they must show: (1) traits or characteristics that cannot be changed; or (2) traits or characteristics which an individual should not be required to change because they are so central to the individual s identity. Id. 2 The Third Circuit has elaborated on this definition by stating [i]f a reasonable fact finder could make a particular finding on the administrative record, then the finding is supported by substantial evidence. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003). 7

15 The U.S. Circuit Courts of Appeals have accepted that familial ties can constitute membership in a PSG. Torres v. Mukasey, 551 F.3d 616 (7th Cir. 2008) (holding that the petitioner s persecutors in the Honduran military had generalized their resentment of the brothers for desertion into a vengeful hatred of an entire family as a group of deserters). Additionally, in Gonzales v. Thomas, this Court upheld the Ninth Circuit s ruling that unanimously held that in principle a family may constitute a social group for the purposes of the refugee status. Gonzales v. Thomas, 547 U.S. 183, 184 (2006) (quoting Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005), cert. granted, vacated, 547 U.S. 183 (2006)). Here, Petitioner claims membership in the Kurzban family qualifies as membership in a PSG 3, within the meaning of 1101(a)(42)(A). 8 U.S.C. 1101(a)(42)(A). It is undisputed that Petitioner is a member of the Kurzban family. However, the definition of a refugee requires more than the mere existence of a PSG. Assuming, arguendo, Petitioner has established she is a member of a PSG, the Kurzban family, she would still not qualify as a refugee under the Act. To satisfy the definition of a refugee, persecution must exist on account of an area protected under the Act. Id. B. Petitioner has failed to show persecution on account of her membership in the Kurzban family. The on account of language of 8 U.S.C. 1101(a)(42)(A) requires the alien to prove some nexus between the persecution and the five protected grounds. Thuri v. Ashcroft, 380 F.3d 788, 792 (5th Cir. 2004) (quoting Ontunez-Tursios, 303 F.3d at 349). In Thuri, the applicant claimed persecution on account of her political opinion. Id. The 3 Petitioner argued before the BIA she would be persecuted in her native country on account of her membership in a PSG (the Kurzban family). (R. p. 13). 8

16 Fifth Circuit upheld the IJ s denial of the applicant s request for asylum stating, [i]f the evidence indicates purely personal motives, and no link to an actual or imputed political opinion or other recognized ground, the claim will fail. Id. (emphasis added). Because the applicant had not proved, by substantial evidence, the appropriate nexus between her persecution and the protected ground asserted (her political opinion) her claim for asylum failed. Id. Thus, the applicant must show some nexus between the persecution and the PSG such that membership in the PSG is the motive behind the persecution. INS v. Elias- Zacarias, 502 U.S. 478, 483 (1992) (addressing requirement that asylum applicant produce some evidence of motive); see also Borja v. INS, 175 F.3d 732, 736 (9th Cir. 1999). Here, the record establishes that Petitioner s fear of persecution stems, not as a direct result from her membership in the Kurzban family, but rather in further retaliation for the acts of her father. (R. p. 5). Although Petitioner may be able to establish a well-founded fear of persecution and membership in a PSG, Petitioner has failed to illustrate the requisite nexus between the two. Because no such nexus exists, Petitioner s fear cannot be described as on account of of her membership in the Kurzban family as required by 1101(a)(42)(A). 8 U.S.C. 1101(a)(42)(A). Petitioner has only alleged persecution motivated by a personal vendetta, thus falling outside the scope of the ACT. 4 i. Persecution motivated by personal revenge does not equate to persecution on account of membership in a particular social group. 4 See generally Demiraj v. Holder, 631 F.3d 194, 198 (2011) (holding persecution motivated by personal revenge is not persecution on account of membership in a PSG); see also Matter of Mogharrabi, 19 I. & N. Dec. 439, 445 (B.I.A. 1987) (holding retribution over personal matters or general fears is not persecution on account of membership in a PSG). 9

17 In Demiraj v. Holder, the petitioner and her son claimed a well-founded fear of persecution on account of their membership in the Demiraj family. Demiraj v. Holder, 631 F.3d 194, 198 (5th Cir. 2011). The petitioner s husband, Mr. Demiraj, had agreed to testify on behalf of the U.S. government, against a fellow Albanian national, Mr. Bedini. Id. at 199. Mr. Bedini began attacking various members of the Demiraj family in Albania. Id. Petitioner sought asylum in the United States, but despite several attacks on members of the Demiraj family, the petitioner s claim was denied because they were unable to demonstrate persecution on account of membership in the Demiraj family. Id. Rather, the Fifth Circuit upheld the rulings of the IJ and BIA in holding that persecution motivated by personal revenge fails to satisfy the definition of a refugee because Mr. Bedini lacked a generalized desire to hurt the Demiraj family as such. Demiraj, 631 F.3d at 201. Thus, individuals facing persecution over personal matters do not qualify for asylum in the United States. See generally Demiraj, 631 F.3d at 199. Furthermore, aliens who flee from general violence or fearing retribution over purely personal matters may possess a well-founded fear of persecution; however, this fear is not on account of their membership in a PSG. Matter of Mogharrabi, 19 I. & N. Dec. 439, 445 (B.I.A. 1987). Here, Petitioner claims a fear of persecution arising out of Mr. Tortolucci s desire to settle a personal vendetta with Petitioner s father. (R. p. 5). However, this type of persecution is exactly what the Fifth Circuit has deemed to be unprotected. Demiraj, 631 F.3d 194. Additionally, when persecution arises on account of familial relations, the persecution would cease to exist if the individual were no longer a member of the family. See Demiraj, 631 F.3d at 199. As noted by the court, [n]o one suggests that distant 10

18 members of the Demiraj family have been systematically targeted as would be the case if, for example, a persecutor sought to terminate a line of dynastic succession. Demiraj, 631 F.3d at 199. Rather, the petitioner and her son were being targeted not because they were members of the Demiraj family, but because of a personal vendetta against the petitioner s husband. Id. In contrast, the case of Torres exhibits when persecution is on account of membership in a PSG. Torres, 551 F.3d 616. In Torres, the persecutors targeted only members of the petitioner s family because of a generalized notion that every member of the family was a military deserter. Id. However, the case before this Court can be distinguished from Torres. Unlike the present case, the petitioner in Torres would not have been subject to persecution had they not been a member of that particular family. The persecutors in the Honduran militia were targeting specific members of that family as such. Id. at Here, Petitioner has not provided substantial evidence showing the requisite nexus between her well-founded fear of persecution and her membership in the Kurzban family. For this reason, Petitioner s claim for asylum must fail. Furthermore, because Petitioner has not established her eligibility for consideration for asylum, she cannot succeed on her application for withholding of removal. Id. at 793. Here, similar to Demiraj, Petitioner s family members have been subjected to retaliatory actions due to Mr. Kurzban s documentary. (R. p. 5); Demiraj, 631 F.3d at 198. All evidence presented indicates that any persecution Petitioner may fear stems as a result of Mr. Tortolucci s personal vendetta against Mr. Kurzban, and not out of a desire to persecute the Kurzban family. Here, Petitioner would be no safer if she were simply a 11

19 friend of Mr. Kurzban. 5 Thus, because Petitioner fails to show the requisite nexus between her feared persecution and membership in a PSG, she fails to qualify as a refugee under the Act. C. Application of Chevron deference to asylum claims. This Court has long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). Both the IJ and the BIA are components of the Executive Branch within the Department of Justice; thus, this case falls directly within the application of Chevron. Id. When dealing with an ambiguous term in a statute in which an agency administers, deference should be given to the administration s interpretation so long as the agency's answer is based on a permissible construction of the statute. Id. at 843. Here, the issue is how the IJ and BIA interpret the term on account of within 1101(a)(42)(A). 8 U.S.C. 1101(a)(42)(A). Here, the IJ and the BIA narrowly construe the on account of language within the statute. (R. p. 13). And, the Fifth Circuit has affirmed this interpretation, holding that, persecution on account of membership in a PSG must be as such. Demiraj, 631 F.3d 199. By following Chevron, this Court must give substantial deference to the judgment of the IJ and BIA. Chevron, 467 U.S. at 844. In applying this level of deference to the statutory interpretations of executive agencies, this Court must address two questions: 5 For instance, Mrs. Demiraj would not be any safer in Albania if she divorced Mr. Demiraj and renounced membership in the family, nor would she be any safer if she were Mr. Demiraj's girlfriend of many years rather than his wife. The record here discloses a quintessentially personal motivation, not one based on a prohibited reason under the INA. Demiraj, 631 F.3d at 199 (emphasis added). 12

20 First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. Id. at The language on account of is not defined in 1101(a)(42)(A). 8 U.S.C. 1101(a)(42)(A). Because this language is ambiguous and there is no readily available access to Congress s intent, the next question is whether the IJ and BIA s interpretation is a permissible construction of the statute. Chevron, 467 U.S. at The determination of whether an agency gave the statutory language a permissible construction, is a relatively low threshold. Id. This Court has held that the role of the reviewing court is not to interpret the statute as it thought best but rather the narrower inquiry into whether the [agency s] construction was sufficiently reasonable to be accepted by a reviewing court. To satisfy this standard it is not necessary for a court to find that the agency's construction was the only reasonable one or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Fed. Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39 (1981) (citations omitted). In this way, the appropriate standard for determining whether the agency gave the statutory language a permissible construction is simply to find whether it was one reasonable construction. Id. Here, there is substantial support that the IJ and BIA adopted a reasonable construction of the on account of language in the Act. First, there is judicial precedent to uphold this interpretation. Demiraj, 631 F.3d 194; Thuri, 380 F.3d 788. Secondly, as a 13

21 matter of policy, the on account of language should receive a narrow construction in order to give the IJ and BIA room to exercise discretion. The Act was intended to protect aliens who are being persecuted themselves, because of a characteristic that they either cannot change or should not be required to change because it is fundamental to their individual identities or consciences. Ontunez-Tursios, 303 F.3d at 349. Using a broad construction of the on account of language would broaden the application of the Act beyond the intended purpose. Thirdly, in applying Chevron deference, this Court must affirm the statutory construction given to the language of the Act by the IJ and BIA, so long as it is a reasonable construction. Fed. Election Comm'n, 454 U.S. at 39; see also Chevron, 467 U.S. at 840. The reasonable construction does not have to be the only possible interpretation or even the interpretation that a reviewing court would give the language; rather, the agency s construction must simply be one reasonable interpretation. Fed. Election Comm'n, 454 U.S. at 39. Applying Chevron deference, the IJ and BIA reasonably determined that Petitioner has failed to establish the necessary nexus between her feared persecution and one of the protected grounds of the Act. (R. p. 13). Rather, the evidence indicates that any persecution she may fear would solely arise out of a personal vendetta and not her membership in a PSG. Thus, her claim for asylum and withholding of removal must fail and the decision of the Fourteenth Circuit should be affirmed. Furthermore, even if this Court determines Petitioner was persecuted on account of her membership in a PSG this Court should still affirm the Fourteenth Circuit s decision because Petitioner s conviction of an aggravated felony makes her statutorily ineligible for withholding of removal. 14

22 II. PETITIONER IS STATUORILY INELIGIBLE FOR WITHHOLDING OF REMOVAL BECAUSE PETITIONER S STATE FELONY DRUG CONVICTION CONSTITUTES AN AGGRAVATED FELONY. Even if Petitioner qualified as a refugee under the Act, the Court of Appeals for the Fourteenth Circuit properly determined Petitioner s state felony drug conviction, under Fraternia Penal Code 1173(a), constituted an aggravated felony rendering her statutorily ineligible for withholding of removal. Petitioner pled no contest to attempted possession with intent to deliver a controlled substance. (R. p. 6). Any alien who is convicted of an aggravated felony at any time after admission is deportable. 8 U.S.C. 1227(a)(2)(A)(iii) (2006). Accordingly, Petitioner erroneously contends her state felony drug conviction does not constitute an aggravated felony. A. Petitioner has failed to meet her burden, of showing by a preponderance of the evidence, that she is statutorily eligible for withholding of removal. Petitioner has the burden to show that she is eligible for the remedy of withholding of removal. 8 C.F.R (d) provides, The respondent shall have the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion. If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply. 8 C.F.R (d) (2011). Although the government bears the burden of proof with respect to the conviction that supports a charge of removability, 8 U.S.C. 1229a(c)(3), an alien who applies for cancellation of removal bears the burden of demonstrating that he is eligible for such relief. Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006); 8 U.S.C. 1229a(4)(A)(1) (2006); 8 C.F.R (d). Thus, "once the immigration judge determined that a mandatory ground for denial might apply, Petitioner 15

23 has the burden of proving that the ground did not apply. Salviejo-Fernandez, 455 F.3d at 1066; C.F.R (d). [T]he burden of proof was, is, and remains on the alien. Rosas-Castaneda v. Holder, 655 F.3d 875, 880 (9th Cir. 2011). For the following reasons, Petitioner has not met this burden. B. Petitioner s felony drug conviction constitutes an aggravated felony because it is punishable as a felony under the Controlled Substances Act. An alien is statutorily eligible for withholding of removal if she proves persecution based on membership in a particular social group. 8 U.S.C. 1231(b)(3)(A) (2006). However, an alien convicted of an aggravated felony is statutorily ineligible for mandatory prohibition against removal. 8 U.S.C. 1231(b)(3)(B) (2006). Every offense listed under 1101(a)(43)(B) constitutes an aggravated felony, one of particular relevance is illicit trafficking in a controlled substance...including a drug trafficking crime as defined in 18 U.S.C. 924(c)(2). 8 U.S.C. 1101(a)(43)(B) (2006). 924(c)(2) defines a drug trafficking crime as any felony punishable under the Controlled Substances Act (21 U.S.C. 801, et seq.). 18 U.S.C. 924(c)(2) (2006). Further, 3559(a) defines felony as an offense punishable by imprisonment of more than one year. 18 U.S.C. 3559(a) (2006). As such, 1101(a)(43)(B) provides two possible routes under which a state drug conviction constitutes an aggravated felony. Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008) (citing In re Davis, 20 I. & N. Dec. 536 (B.I.A. 1992)); 8 U.S.C. 1101(a)(43)(B). First, a state drug conviction constitutes an aggravated felony when it falls within the term illicit trafficking. 6 Lopez v. Gonzales, 549 U.S. 47, 57 (2006); 8 U.S.C. 6 Because Fraternia Penal Code 1173(a) does include a dealing element, it cannot be considered an aggravated felony under the illicit trafficking route. (R. p. 9). 16

24 1101(a)(43)(B). Secondly, a state drug offense constitutes an aggravated felony where the state offense proscribes conduct punishable as a felony under the CSA. Lopez, 549 U.S. at 60; 18 U.S.C. 924(c)(2). The latter analysis is commonly referred to as the hypothetical federal felony rule. Garcia v. Holder, 638 F.3d 511, 515 (6th Cir. 2011). Petitioner s felony drug conviction constitutes an aggravated felony under the hypothetical federal felony route because the elements of Fraternia Penal Code 1173(a) match the elements of a felony under the CSA. i. The Fourteenth Circuit properly concluded that Petitioner s state drug conviction constitutes an aggravated felony under the hypothetical federal felony route. The hypothetical federal felony route determines whether a state drug conviction is punishable as a federal felony through a comparison of the state conviction to the analogous offense in the Controlled Substances Act. Catwell v. Att y Gen. of U.S., 623 F.3d 199, 207 (3d Cir. 2010). To make this determination, we presumptively apply a formal categorical approach. Garcia v. Att y Gen. of U.S., 462 F.3d 287, 291 (3d Cir. 2006) (citing Singh v. Ashcroft, 383 F.3d 144, 147 (3d Cir. 2004)) (citing Taylor v. United States, 495 U.S. 575 (1990)). Under the formal categorical approach, we may only consider the fact of conviction and the statutory definition of the prior offense. Taylor, 495 U.S. at 602. Accordingly, the formal categorical approach does not allow consideration of the particular facts underlying the conviction. Garcia, 462 F.3d at 291. ii. Petitioner s state felony conviction constitutes an aggravated felony under the formal categorical approach. Fraternia Penal Code 1173(a) states in relevant part: Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance... a person who violates this section as to marijuana 17

25 or a mixture containing marijuana is guilty of a felony punishable if the amount is less than 5 kilograms or fewer than 20 plants, by imprisonment for not more than 4 years or a fine of not more than $20,000, or both. Fraternia Penal Code 1173(a). Additionally, 1173(b) defines deliver to mean the actual, constructive or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship. Fraternia Penal Code 1173(b). The CSA punishes similar conduct in 841(a)(1), which states: It shall be unlawful for any person to knowingly or intentionally... manufacture, distribute, or dispense, or possess, with intent to manufacture, distribute, or dispense, a controlled substance. 21 U.S.C. 841(a)(1) (2006). Additionally, 802(8) defines the term distribute as to deliver and defines deliver as the actual, constructive, or attempted transfer of a controlled substance whether or not there exists an agency relationship. 21 U.S.C. 802(8) (2006). Furthermore, 802(6) defines controlled substance as a drug or other substance, or immediate precursor, included in Schedule I, II, II, IV or V of part B of this subchapter. 21 U.S.C. 802(6) (2006). 812, Schedule I, (c)(10) classifies marijuana as a controlled substance. 21 U.S.C. 812, Schedule I, (c)(10) (2006). Finally, 846 provides that, attempts to commit any offense defined in the Controlled Substances Act shall be subject to the same penalties. 21 U.S.C. 846 (2006). The Fourteenth Circuit appropriately conducted its analysis under the formal categorical approach and properly concluded that the conduct proscribed under Fraternia Penal Code 1173(a) is analogous to 21 U.S.C. 841(a)(1). Other Circuit Courts have reached the same conclusion when dealing with very similar statutes. Batrez Gradiz v. Gonzales, 490 F.3d 1206 (10th Cir. 2007); Julce v. Mukasey, 530 F.3d 30 (1d Cir. 2008). 18

26 In Batrez Gradiz, the defendant was charged under (a)(i), which states in relevant part that: it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. Wyo. Stat. Ann (a)(i) (2011); Batrez Gradiz, 490 F.3d at The court, in Batrez Gradiz, provides that all three offenses chargeable under that statute...are felonies under the Controlled Substances Act, 21 U.S.C. 841(a)(1), and are therefore deportable aggravated felonies under 8 U.S.C. 1101(a)(43)(B) and 1227(a)(2)(A)(iii). Batrez Gradiz, 490 F.3d at Likewise, 1173(a) contains similar offenses manufacture, create, deliver or possess with intent to manufacture, create, or deliver each punishable as a felony under the CSA. Fraternia Penal Code 1173(a). iii. An application of the modified categorical approach is not warranted. In a minority of instances, the court may deviate from the standard formal approach and apply a modified categorical approach. Garcia, 462 F.3d at 291. In a narrow range of cases, a modified categorical approach may be appropriate when the state statute is divisible. Taylor, 495 U.S. at 602; Catwell, 623 F.3d at 207. This Court affirmed this principle when it refused to ease away from the Taylor conclusion in Shepard. Shepard v. United States, 544 U.S. 13, 23 (2005). The purpose behind employing the modified categorical approach would be to determine which portion of the statute provides the basis for conviction. Rendon, 520 F.3d at 975 (citing Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003)). An application of the modified categorical approach allows for the consideration of the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding the judgment. Id. When the convicting statute is 19

27 disjunctive, meaning that it includes alternative elements, the court may choose to apply the modified categorical approach to determine which of the alternative elements was the actual basis for the underlying conviction. Evanson v. Att y Gen. of U.S., 550 F.3d 284, 292 (3d Cir. 2008). However, an analysis under the modified approach is unnecessary because Fraternia Penal Code 1173(a), although disjunctive, does not meet the said criteria to warrant such analysis. The modified categorical approach may be appropriate where the statute includes distinct offenses carrying separate penalties, but not where the statute includes alternate types of conduct that constituted the same offense. Singh, 383 F.3d at 162 (citing Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003)). Thus, the modified categorical approach is only appropriate where: (1) alternate types of conduct included in the statute constitute the same offense but involve distinct punishments; or (2) where some alternate elements of the statute constitute aggravated felonies and others do not. Id. While 1173(a) includes four distinct offenses, each type of conduct constitutes the same offense because each involves the same punishment. Fraternia Penal Code 1173(a). Furthermore, because each offense is punishable as a felony under the CSA, each constitutes an aggravated felony. Therefore, an analysis under the modified approach is unwarranted. iv. Under a modified categorical approach, Petitioner s felony drug conviction constitutes an aggravated felony. Although unwarranted, should the Court determine this to be one of the rare instances in which an application of the modified categorical approach is appropriate, Petitioner s drug conviction would nonetheless constitute an aggravated felony. Petitioner pled no contest to attempted possession with intent to distribute under Fraternia Penal 20

28 Code 1173(a). (R. p. 6). The CSA punishes similar conduct in 841(a)(1), which states: It shall be unlawful for any person to knowingly or intentionally... manufacture, distribute, or dispense, or possess, with intent to manufacture, distribute, or dispense, a controlled substance. 21 U.S.C. 841(a)(1). Because Petitioner s conduct is punishable as a felony under the CSA, her state felony drug conviction constitutes an aggravated felony. Furthermore, other Circuits applying the modified categorical approach to similar statutes have reached the same conclusion. Garcia, 462 F.3d 287; Catwell, 623 F.3d 199; Jeune v. Att y Gen. of U.S., 476 F.3d 199 (3d Cir. 2007). C. The mitigating exception included in 21 U.S.C. 841(b)(4) is inapplicable. i. 841(b)(1)(D), not 841(b)(4) sets forth the statutory maximum. Petitioner argues the Fourteenth Circuit erred in affirming the BIA s determination that she was an aggravated felon. Petitioner argues 841(b)(4) provides the statutory maximum where a person possesses a small amount of marijuana for no remuneration shall be treated as provided in section U.S.C. 841(b)(4) (2006). According to Petitioner, her state felony drug conviction for attempted possession with intent to distribute less than five kilograms of marijuana would constitute a misdemeanor under federal law. Fraternia Penal Code 1173(a). However, Petitioner proffers an argument several Circuit Courts have previously rejected, including the Fourteenth Circuit. The court in Julce v. Mukasey magnifies Petitioner s mistake, holding that, the argument fails because it mistakes the nature of 841(b)(4), the federal misdemeanor exception. That section does not create a stand-alone misdemeanor offense. Rather, it is 21

29 best understood as a mitigating sentencing provision. Julce, 530 F.3d at 35; see also United States v. Eddy, 523 F.3d 1268, 1271 (10th Cir. 2008). Specifically, 841(b)(1)(D) represents the statutory maximum sentencing for possessing an undetermined amount of marijuana. United States v. Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002); 21 U.S.C. 841(b)(1)(D) (2006 & Supp. 2010). Thus, unless Petitioner can show that her conduct fits within the mitigating exception provided in 841(b)(4), the possession of any amount of marijuana less than 50 kilograms with the intent to distribute is punishable as a felony under 21 U.S.C. 841(a)(1). Julce, 530 F.3d at 35. Moreover, every court that has considered the question has held that 841(b)(1)(D), not 841(b)(4) sets forth the statutory maximum. Julce, 530 F.3d at 35 (emphasis added); see also Eddy, 523 F.3d at 1271; see, e.g., United States v. Hamlin, 319 F.3d 666, 668 (4th Cir. 2003) (holding 841(b)(1)(D) the applicable statutory maximum sentence for offenses involving an undisclosed amount of marijuana); United States v. Walker, 302 F.3d 322, 324 (5th Cir. 2002); United States v. Outen, 286 F.3d 622, (2d Cir. 2002); Bartholomew, 310 F.3d at 925 ( Section 841(b)(4), therefore, cannot be the default provision for marijuana violations where the quantity of marijuana is undetermined, because it requires proof of an additional fact- the absence of marijuana ). Thus, the application of 841(b)(1)(D) to Petitioner s conviction is well supported by previous case law. ii. Petitioner s state felony drug conviction does not constitute simple possession. Additionally, Petitioner s argument fails because it does not further Congress intent. Outen, 286 F.3d at 637. Specifically, the language in 841(b)(4), [n]otwithstanding paragraph (1)(D) of this subsection indicates Congress intended 22

30 841(b)(4) to be the mitigating exception, rather than the default provision, to 841(b)(1)(D). Id. Also, the legislative history suggests that Congress intended 841(b)(4) to provide a mitigating exception where the conduct involved a small amount of marijuana in social situations. Id. Importantly, this distinction is not one of degree, but rather a different type of conduct altogether. Id. Petitioner s argument, that her state felony drug conviction is only punishable as a misdemeanor under the CSA, lacks merit. This Court, in Lopez, provides that mere possession is not a felony under the CSA. Lopez, 549 U.S. at 53. However, Petitioner was not convicted of simple possession. (R. p. 6). In Batrez Gradiz, the court defines simple possession by distinguishing among crimes that include the element of possession from crimes that include the element of possession with intent to... Batrez Gradiz, 490 F.3d at While the former constitutes simple possession, the latter constitutes an aggravated felony. Id. Here, the state statute under which Petitioner was convicted does not punish simple possession but rather, felony possession with intent to distribute. Fraternia Penal Code 1773(a). Accordingly, because Petitioner s conviction does not involve mere simple possession, the mitigating exception is inapplicable. iii. It is irrelevant that Petitioner s drug conviction involved an unspecified amount of marijuana and no remuneration. In Garcia v. Holder, the court determined that Garcia s state drug conviction constituted an aggravated felony under the formal categorical approach. Garcia, 638 F.3d at 515. In comparing the state s convicting statute with 21 U.S.C. 841(a)(1), the court concluded that Garcia s conviction constituted an aggravated felony, notwithstanding the fact that the conviction involved an unspecified amount of marijuana. Id. at 516. The court, in Garcia, reasoned that the attempt to possess with the intent to deliver any 23