USCA11 Case: 21-11720 Date Filed: 08/02/2021 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 21-11720
Non-Argument Calendar
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Agency No. A075-427-870
FANIE SIMON,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 2, 2021)
Before ROSENBAUM, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
In June 2017, Fanie Simon, a native of the Bahamas, citizen of Haiti, and
lawful permanent resident of the United States, was convicted of multiple drug
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offenses under Florida state law, including sale of cocaine. As a result, the
government initiated removal proceedings in September 2020, charging her as
removable for having been convicted of a controlled-substance offense, see
8 U.S.C.
§ 1227(a)(2)(B)(i), and an aggravated felony, see
id. § 1227(a)(2)(A)(iii). Simon,
represented by counsel, contested the second ground, but an immigration judge
(“IJ”) found her removable as charged. The IJ also denied her request for
termination or administrative closure of the removal proceeding pending the
resolution of an evidentiary hearing in state court on her motion for postconviction
relief. Simon appealed to the Board of Immigration Appeals (“BIA”), which
affirmed. The BIA agreed that Simon’s conviction for sale of cocaine under
Fla.
Stat. § 893.13(1)(a)(1) was an aggravated felony under § 1227(a)(2)(A)(iii) and that
closure or termination was not warranted because her conviction remained final for
immigration purposes.
Simon, proceeding pro se, now petitions this Court for review. She also
moves to proceed without paying the final fee, or in forma pauperis (IFP), arguing
that she “would no longer be considered removable” had she been allowed to pursue
postconviction relief before the final removal hearing. The government moves to
summarily deny the petition on the ground that the BIA’s decision is plainly correct.
Because there is no substantial question as to the outcome of the appeal and the
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government’s position is correct as a matter of law, we grant the government’s
motion for summary denial and deny Simon’s motion for leave to proceed IFP.
We apply similar standards when considering IFP and summary disposition.
We may summarily dispose of appeals where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where . . . the appeal is frivolous.” Groendyke Transp., Inc.
v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).1 Similarly, leave to proceed IFP may
properly be denied where the appeal is “without arguable merit either in law or fact.”
Bilal v. Driver,
251 F.3d 1346, 1349 (11th Cir. 2001).
When a noncitizen has been convicted of an aggravated felony, we lack
jurisdiction to review the final order of removal except for “constitutional claims
and questions of law.” See
8 U.S.C. § 1252(a)(2)(C), (D). Whether a petitioner has
a “conviction” and whether that conviction counts as an “aggravated felony” are
questions of law that we review de novo. Spaho v. U.S. Att’y Gen.,
837 F.3d 1172,
1176 (11th Cir. 2016); Ali v. U.S. Att’y Gen.,
443 F.3d 804, 809–12 (11th Cir. 2006).
Section 1227(a)(2)(A)(iii) provides that a noncitizen who is “convicted of an
aggravated felony at any time after admission” is removable.
8 U.S.C.
§ 1227(a)(2)(A)(iii). The term “aggravated felony” means, among other things,
1
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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“illicit trafficking in a controlled substance, . . . including a drug trafficking crime”
as defined in federal law.
8 U.S.C. § 1101(a)(43)(B). Under this Court’s precedent,
a conviction for sale of cocaine under
Fla. Stat. § 893.13(1)(a)(1) qualifies as an
illicit trafficking aggravated felony for purposes of § 1227(a)(2)(A)(iii). Choizilme
v. U.S. Att’y Gen.,
886 F.3d 1016, 1029 (11th Cir. 2018); Spaho, 837 F.3d at 1179;
see Fla. Stat. 893.13(1)(a) (“[A] person may not sell, manufacture, or deliver, or
possess with intent to sell, manufacture, or deliver, a controlled substance.”).
Furthermore, a conviction remains effective for immigration purposes unless it was
“vacated based on a procedural or substantive defect in the underlying proceedings.”
Ali,
443 F.3d at 812.
Here, Simon’s challenge to the BIA’s decision is without arguable merit in
law. The record before the BIA clearly shows that she was convicted of sale of
cocaine under
Fla. Stat. § 893.13(1)(a), not § 893.135(1)(c) as she asserted below.
Because sale of cocaine under § 893.13(1)(a) counts as an illicit trafficking
aggravated felony under our precedent, there is no question that Simon was
removable under § 1227(a)(2)(A)(iii). See Choizilme, 886 F.3d at 1029; Spaho, 837
F.3d at 1179.
Moreover, Simon’s conviction remained valid for immigration purposes
because, despite her pursuit of postconviction remedies in state court, it had not been
“vacated based on a procedural or substantive defect in the underlying proceedings.”
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Ali,
443 F.3d at 812. Nor does she indicate that it has since been vacated. And we
lack jurisdiction to review the BIA’s discretionary decision not to terminate or close
proceedings pending the resolution of her postconviction claims because that
decision does not present a constitutional claim or question of law. See
8 U.S.C.
§ 1252(a)(2)(C), (D); Arias v. U.S Att’y Gen.,
482 F.3d 1281, 1284 (11th Cir. 2007)
(explaining that “we lack jurisdiction over abuse of discretion claims” even if they
are “couched in constitutional language”).
For these reasons, we conclude that there is “no substantial question as to the
outcome of the case” because the BIA’s decision, to the extent we have jurisdiction
to review it, is clearly correct as a matter of law. Simon was and remains convicted
of sale of cocaine under
Fla. Stat. § 893.13(1)(a)(1), which is an aggravated felony
that made her removeable under § 1227(a)(2)(A)(iii).
We therefore GRANT the government’s motion to summarily deny the
petition for review and DENY Simon’s motion for leave to proceed IFP.
PETITION DENIED.
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