U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 l.eesburg l'1ke. S1111e 2000
Fc,1/s Ch11rch. l'irginia 20530

OHS/ICE Office of Chief Counsel - NOL

1250 Poydras Street, Suite 325
New Orleans, LA 70113

Name: KAUR, GURVINDER

A 201-143-721
Date of this notice: 5/28/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DorutL c

t1IVL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A
Pauley, Roger
Wendtland, Linda S.

Userteam: Docket

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Cite as: Gurvinder Kaur, A201 143 721 (BIA May 28, 2015)

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Goodman, Simpson L, Esq.

Simpson L. Goodman & Associates, PLLC
2918 Professional Parkway
Augusta, GA 30907

,'

..
U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A201 143 721 - New Orleans, LA

Date:

lAAY

182015

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Simpson L. Goodman, Esquire
ON BEHALF OF DHS:

Charlotte Marquez
Assistant Chief Counsel

CHARGE:
Notice: Sec.

237(a)(l )(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law

Lodged: Sec.

237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony

APPLICATION: Termination

The respondent, a native and citizen of Malaysia, appeals the Immigration Judge's May 1,
2014, decision finding her removable from the United States pursuant to section 237(a)(2)(A)(iii)
of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii). The Department of
Homeland Security ("DHS") opposes the appeal. 1 The appeal will be sustained, and these
proceedings will be terminated.
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.l (d)(3)(i); Matter of J-Y-C-, 24 l&N Dec. 260 (BIA 2007); Matter of S-H-, 23 I&N
Dec. 462 (BIA 2002). We review issues of law, discretion, or judgment, and all other issues
de novo. See 8 C.F.R. 1003.l (d)(3)(ii).
The determinative issue in this case is whether the respondent's October 30, 2012, conviction
for conspiracy to transfer a controlled substance-to wit, ephedrine, according to the
Indictment-in violation of Mississippi Code Annotated 41-29-139 and 97-1-1 renders her
removable as an alien who has been convicted of an aggravated felony as that term is defined
1

The respondent was also charged with removability under section 237(a)(l)(B) of the Act
(Exh. 1). The Immigration Judge declined to sustain this charge (I.J. at 3-4), and the DHS does
not challenge that ruling on appeal.
Cite as: Gurvinder Kaur, A201 143 721 (BIA May 28, 2015)

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In re: GURVINDER KAUR a.k.a. Gurvinder Kaur Laswant Singh

a.k.a. Nicky

A201 143 721

To determine whether the respondent has been convicted for a "drug trafficking crime," we
must first determine whether the minimum conduct proscribed by her statute of conviction is
punishable as a felony under the Controlled Substances Act ("CSA"). 18 U.S.C. 924(c)(2) (as
cross-referenced in section 101(a)(43)(B) of the Act); see Sarmientos v. Holder, 742 F.3d 624,
628 (5th Cir. 2014). In other words, the minimum conduct encompassed by Mississippi Code
Annotated 41-29-139 must meet two conditions: (1) it must meet the elements of an offense
under the CSA; and (2) the CSA must punish such conduct as a felony.3 Moncrieffe v. Holder,
133 S. Ct. 1678, 1685 (2013). There are two potential CSA offenses at issue here-21 U.S.C.
841(a) and (c)-each of which will be addressed in turn.
The respondent's statute of conviction provides, in relevant part, as follows:
(a) Except as authorized by this article, it is unlawful for any person knowingly or
intentionally:
(1) To sell, barter, transfer, manufacture, distribute, dispense or possess with
intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled
substance; or
(2) To create, sell, barter, transfer, distribute, dispense or possess with intent to
create, sell, barter, transfer, distribute or dispense, a counterfeit substance.
Miss. Code Ann. 41-29-139. On its face, this language closely tracks that which was adopted
by Congress in 21 U.S.C. 841(a). Cf 21 U.S.C. 841(a)(l), (2) (using the terms
2

The relevant conviction documents in this case, a copy of the indictment and sentencing order,
are all contained in Exhibit 3, which appears to have been disassociated from a larger portion of
documents that were initially submitted together. Exhibit 3 has a total of five pages, with the
pagination starting at page 4 and going through page 8. The pagination is found on the upper
right-hand comer of each page. Where it is necessary to cite to a specific page within this
exhibit, we will do so by using this pagination.

As noted, the respondent was convicted of conspiring to violate Mississippi Code Annotated
41-29-139 (Exh. 3 at 6). See Miss. Code Ann. 97-1-1. Neither party addresses whether the
crime of conspiracy under Mississippi law is coextensive with "generic" conspiracy, within the
meaning of either section 101(a)(43)(U) of the Act or 21 U.S.C. 846. Regardless, we need not
reach the issue here because, as discussed below, we conclude that the underlying crime that the
respondent conspired to commit, Mississippi Code Annotated 41-29-139, is not a drug
trafficking crime.

2
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under section 10l(a)(43)(B) of the Act, 8 U.S.C. l10l(a)(43)(B) (Exh. IA; see also Exh. 3 at
4).2 See section 237(a)(2)(A)(iii) of the Act. Specifically, the DHS argues that this offense
meets the definition of a "drug trafficking crime" within the meaning of section 101(a)(43)(B) of
the Act. The Immigration Judge found that it does and sustained the DHS's charge under section
237(a)(2)(A)(iii) of the Act (I.J. at 4-6). For the following reasons, we disagree.

A201 143 721

"manufacture, distribute, or dispense" and "create, distribute, or dispense," respectively). As
discussed below, however, the two differ in one important respect.

The importance of this distinction is that while 21 U.S.C. 84l(a) does not apply to the act
of manufacturing, distributing, or dispensing ephedrine, section 4l-29-139(a) of the Mississippi
Code Annotated does. We know this, not only from examining the relevant Mississippi statutes,
but also from the respondent's conviction in this case (I.J. at 4-5; Exh. 3 at 4, 6). See Matter of
Ferreira, 26 l&N Dec. 415, 421-22 (BIA 2014) (providing that where a determination rests on
the comparison of Federal and State controlled substance schedules, an alien must demonstrate a
realistic probability, though the existence of an actual prosecution or otherwise, that his or her
offense would be applied to a non-federally controlled substance). And because ephedrine was
the "controlled substance" that formed the basis of the respondent's conviction, she was
necessarily not convicted of an offense punishable under 21 U.S.C. 84l(a).
The OHS nevertheless argues that the respondent's offense is punishable under 21 U.S.C.
841(c), the provision of the CSA affording criminal liability to conduct involving "listed
chemicals." The offenses defined under this provision of the CSA require that the accused either
(a) possess a listed chemical ''with intent to manufacture a controlled substance" or (b) possess
or distribute a listed chemical "knowing, or having reasonable cause to believe, that the listed
chemical will be used to manufacture a controlled substance." 21 U.S.C 84l(c)(l), (2). While
the respondent's conviction unquestionably involved ephedrine, a listed chemical under Federal
law, there is no corollary requirement under her statute of conviction that the ephedrine be
possessed or distributed with the intent to manufacture, or with knowledge or reasonable cause to
believe that the ephedrine will be used to manufacture, a substance that is controlled under
Federal law. Indeed, the minimum conduct required for a conviction under Mississippi Code
Annotated 41-29-139(a) is the act of distributing ephedrine or possessing ephedrine with the
intent to distribute it. Whether either of those acts is done with intent, or knowledge or reason to
know, that the manufacturing of a federally controlled substance would result is irrelevant.
Accordingly, the respondent has not been convicted of an offense punishable under 21 U.S.C.
841(c).
In fact, there is a separate provision of Mississippi law that more closely tracks the language
of 21 U.S.C. 84l(c). See Miss. Code Ann. 41-29-313(1)(a). That section applies to certain
"precursor chemicals or drugs" that are possessed or distributed under circumstances related to

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A "controlled substance" under Federal law refers to a substance, or the immediate precursor
thereof, that is included in one of the five Federal drug schedules. 21 U.S.C. 802(6).
Mississippi law has adopted a nearly identical definition. See Miss. Code Ann. 41-29-105(f)
("' Controlled substance' means a drug, substance or immediate precursor in Schedules I through
V . . . . "). Notably, however, Federal law defines "ephedrine" under its "listed chemical"
classification, with designation as a "list 1 chemical." 21 U.S.C. 802(33), (34)(C). The listed
chemical classification is not part of the five Federal drug schedules. See generally United States
v. Steward, 16 F.3d 317, 319 n.1 (9th Cir. 1994) (discussing the classification of ephedrine under
Federal law). Nor is ephedrine designated as an "immediate precursor." See 21 U.S.C.
802(23); 21 C.F.R. 1308.12(g). Mississippi law, on the other hand, defines "ephedrine" as a
Schedule III controlled substance. Miss. Code Ann. 41-29-l17(A), Sched. III(d).

A201 143 721

In sum, there is a realistic probability that Mississippi would enforce its law in a manner that
would cover substances within its definition of a "controlled substance" that are not included
under Federal law. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); Matter of
Ferreira, supra. The respondent's conviction, which involved ephedrine (a non-federally
controlled substance), is therefore not publishable under 21 U.S.C. 841(a). Furthermore, while
21 U.S.C. 84l (c) proscribes certain conduct involving ephedrine, there are elements of that
offense that are not included in the respondent's statute of conviction. See Descamps
v. United States, 133 S. Ct. 2276, 2292 (2013) ("Whether the statute of conviction has an
overbroad or missing element, the problem is the same: Because of the mismatch in elements, a
person convicted under that statute is never convicted of the generic crime."). We therefore
conclude that the OHS has not established that the respondent is removable under section
237(a)(2)(A)(iii) of the Act for having been convicted of an aggravated felony, the only charge
of removal outstanding against the respondent. See supra note 1. Accordingly, the following
order will be entered.
ORDER: The appeal is sustained, the Immigration Judge's decision is vacated, and the
removal proceedings are terminated.

4
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the manufacturing of another substance that is controlled under Mississippi law, which is
largely analogous to the conduct covered by 21 U.S.C. 84l (c). See Miss. Code Ann.
41-29-313(l )(a). Ephedrine is listed as a "precursor drug or chemical" for purposes of that
section, in addition to its designation as a Schedule III controlled substance. See Miss. Code
Ann. 41-29-313(l )(b)(v). It would thus appear that Mississippi law allows ephedrine to be
punished under both section 41-29-139(a) (for its possession, distribution, or manufacture) and
section 41-29-313(1)(a) (for its possession or distribution in connection with the manufacturing
of another "controlled substance"), whereas 21 U.S.C. 84l(c) only proscribes conduct
involving ephedrine under the latter circumstance. However, we need not resolve here whether a
conviction under section 41-29-313(l )(a) of the Mississippi Code Annotated is necessarily
punishable under 21 U.S.C. 841(c) because, as noted, the respondent was convicted under
section 41-29-139(a).

May 1, 2014

File: A201-143-721
In the Matter of

)
)
)
)
)
)

GURVINDER KAUR
a/k/a LASWANT SING KAUR
a/k/a NICKY
RESPONDENT
CHARGES:

IN REMOVAL PROCEEDINGS

Section 237(a)(1){B) of the Immigration and Nationality Act - as an

alien who has remained in the United States for a longer time than
permitted; Section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act - as an alien convicted of an aggravated felony as
defined in Section 101(a)(43)(8) of the Act (illicit trafficking of a
controlled substance, including a drug trafficking crime).

APPLICATIONS:
ON BEHALF OF RESPONDENT: SIMPSON L. GOODMAN Esquire
3540 Wheeler Road, Suite 210
Augusta, Georgia 30909
ON BEHALF OF OHS: CHARLOTTE S. MARQUEZ Assistant Chief Counsel
1250 Poydras Street, Suite 2100
New Orleans, Louisiana 70113

ORAL DECISION OF THE IMMIGRATION JUDGE

I. PROCEDURAL AND FACTUAL HISTORY
The respondent is a native and citizen of Malaysia. She was admitted into the

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW ORLEANS, LOUISIANA

United States at Atlanta. Georgia, on or about May 17, 2010, as a nonimmigrant visitor
authorized to remain no longer than August 16, 2010. The Government alleges that she
Homeland Security.
Removal proceedings commenced with issuance of a Notice to Appear dated
June 17, 2011 (Exhibit 1). Respondent was charged with being deportable for
remaining in the United States for a longer time than permitted.
Proceedings began before the Immigration Court in Oakdale, Louisiana. Shortly
after the Notice to Appear was filed, the respondent posted bond and venue was
transferred to the Immigration Court in New Orleans, Louisiana, September 26, 2011.
Before the Court in New Orleans, the Notice to Appear shows that allegations 1,
2, and 3 were admitted, but allegation 4, as well as the charge of deportability under
Section 237(a)( 1)(B) of the Act, were denied.
There was a hearing scheduled for April 26, 2013, but was continued because
the attorney indicated in his motion that the respondent was not allowed to leave the
state of Mississippi because of a criminal conviction. The Department filed a non
opposition to the motion to continue that hearing. The attorney of record at that time,
Thomas P. Adams, withdrew and the current attorney filed his entry of appearance on
the same date, November 21, 2013.
On December 12, 2013, the Department filed a Form 1-261 (Exhibit 1-A). That
document alleges that the respondent was convicted in the Circuit Court of Lawrence
County, Mississippi, on or about October 30, 2012, for conspiracy to transfer a
controlled substance. Respondent, throug.h her current counsel, denied both the
allegation, as well as the aggravated felony charge contained on the 1-261 under
Section 237{a)(2)(A)(iii) of the Act.
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May 1, 2014

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remained beyond the authorized date without authorization from the Department of

After more continuances, there was a hearing on April 7, 2014. On that date, the
respondent filed a memorandum of law in support of contesting deportability as charged

any response to the motion or any additional documents.

II. APPLICABLE LAW
Section 101(a)(43)(8) of the Act defines the term aggravated felony as illicit
trafficking in a controlled substance (as defined in Section 102 of the Controlled
Substance Act), including a drug trafficking crime (as defined in Section 924(c) of 18
United States Code). Section 18 United States Code 924(c)(2) describes an offense as
drug trafficking if it is a violation under the Controlled Substance Act for which the
defendant has been sentenced to at least one year or the offense is a felony for which
the person has been sentenced to a year.
21 United States Code Section 841(c)(2) of the Controlled Substance Act states
that any person who knowingly or intentionally possess or distributes a listed chemical
knowing, or having reason to believe, that the listed chemical will be used to
manufacture a controlled substance shall be fined and sentenced to a term of
imprisonment of not more than 20 years.
Ill. EVIDENCE PRESENTED AND ANALYSIS
In the document marked as Group Exhibit 4, respondent, through counsel,
addresses both charges of deportability.
At the outset, the Court notes that it is the Government's burden to establish that
the respondent is deportable as charged by evidence which is clear and convincing.
See Section 240(c){3)(A) of the Act. As just stated, the Department did not present any
documents in support of either contested allegation.
The respondent, through counsel, as part of Group Exhibit 4 has presented
A201-143-721

May 1, 2014

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in the Notice to Appear as amended (See Group Exhibit 4). The Department did not file

documents to establish that while the respondent was admitted as a visitor as alleged
by the Department on the Notice to Appear, her status was changed to that of a student.

respondent was approved or her status changed to that of an F-1. There is also a
document showing that respondent has recently been issued another 1-20 and that she
was currently in status. Group Exhibit 4 at page 26 there is a Form 1-20 showing that
the respondent is expected to report to school no later than August 11, 2011, and to
complete studies no later than May 15, 2014. As part of the packet of documents that
the respondent presented, there is a letter from the university that she is currently
attending indicating that she is in fact attending and in good status. As the extensions
were granted after the June 11, 2011, Notice to Appear was issued, it would appear that
respondent is currently in status. There is a November 21, 2013, letter from the Copiah
Lincoln Community College also indicating that the respondent has been accepted as a
student. That the college issued her an 1-20 Form and that she has been accepted as a
student for the 2013/2014/2014/2015 school year. Therefore, it would appear to the
Court that the respondent's status was in fact changed and she was not subject to
removal as an overstay since after she was granted the admission as a visitor, her
status was changed to that of a student and she appears to be in student status.
Therefore, the Court is not sustaining the charged under Section 237(a)(1)(B) of the Act.
The Court now considers whether or not the respondent is deportable as charged
as an aggravated felon based on illicit trafficking of a controlled substance. The
respondent in her brief argues that the respondent is not deportable as an aggravated
felon. On page 7 of the respondent's brief, respondent acknowledges that according to
Mississippi Code, Ephedrine is a scheduled three controlled substance according to
Mississippi Code Annotated Section 41-29-117. However, the respondent argues that
A201-143-721

May 1, 2014

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As part of the exhibits presented by the respondent, it shows at Tab I that the

Ephedrine is not a controlled substance under the Federal Controlled Substance Act
and specifically cites Section 802(A)(45)(A), which states that the scheduled listed

distributed lawfully in the United States. Had that been the end of the information in the
Controlled Substance Act, the Court would agree with the respondent that Ephedrine
would not be a controlled substance under federal law. This section addresses the use
of Ephedrine lawfully in products that are manufactured or distributed under the Federal
Food Drug and Cosmetic Act. 21 United States Code 301, et seq. However. there is a
separate section under the Controlled Substance Act that specifically addresses
whether or not List 1 chemicals would be controlled substances. That was previously
cited by the Court under Section 2. Section 21 United States Code 841(c)(2) of Federal

Law specifically states that any person who knowingly or intentionally possesses or
distributes a listed chemical knowing or having reason to believe that the chemical could
be used to manufacture a controlled substance shall be fined and sentenced to a term
of imprisonment for not more than 20 years. The offense is classified as a felony under
18 United States Code 3559. Ephedrine is listed as a controlled substance and federal
law criminalizes the use of Ephedrine or a List 1 chemical such as Ephedrine, which is
listed under 21 C.F.R. 1310.02(a)(3). As the respondent acknowledges that Ephedrine
is a controlled substance under Mississippi Law and the respondent was sentenced to
five years in prison, the Court finds that the respondent's conviction for the conspiracy
to transfer a controlled substance mirrors a portion of the Controlled Substance Act of
the United States that Ephedrine is a List 1 chemical under both federal and state law.
As the respondent has been convicted of an offense for transferring a prohibited
chemical under the particular section cited by the Court, 841(c)(2), the Court finds that
the respondent has been convicted of illicit trafficking in a controlled substance and as
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May 1, 2014

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chemical products means, in addition to others Ephedrine, that may be marketed or

she was sentenced to five years, it is a felony which would bring it within the purview of
18 United States Code 924(c){2). Therefore, the respondent has been convicted of an

finds that deportability on this charge has been established by evidence which is clear
and convincing.
The Court is going to indicate on the Form 1-261, that the charge under Section
237(a){2)(A)(iii) of the Act has been sustained. I find that that charge has been
established by evidence which is clear and convincing.
The respondent designated Malaysia as the country of her removal if removal
were to become necessary. The respondent sought no relief from removal.
IV. CONCLUSION
The Court finds that the respondent is a native and citizen of Malaysia subject to
removal as charged in the charge on the Form 1-261 dated December 12, 2013. The
Court finds that the charge under Section 237(a)(2)(A)(iii) of the Act as it relates to
Section 101(a)(43)(B) of the Act has been established by evidence which is clear and
convincing. As respondent seeks no relief from removal, the following order is hereby
entered.
ORDER
IT IS HEREBY ORDERED that the respondent be removed from the United
States to Malaysia.

Please see the next page for electronic

signature

A201-143-721

AGNELIS L. REESE
Immigration Judge
6

May 1, 2014

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aggravated felony as defined under Section 101( a)( 43)(A)(iii) of the Act. The Court

. ...

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May 1 , 201 4

A201-143-721

/Isl/

Immigration Judge AGNELIS L . REESE

A201 -143-721

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reesea on September 1 8 , 2 0 1 4 at 1 : 03 PM GMT

May 1 1 2014