The Eleventh Circuit recently ruled that a Washington Conviction of Administering a Controlled Substance is an aggravated felony barring naturalization. The Decision is Bourtzakis v. US Atty. Gen.
What is Naturalization?
Naturalization is the process under which a lawful permanent resident becomes a naturalized citizen of the United States. There are several requirements including:
- Meeting the continuous physical presence requirements in the United States
- Be a lawful permanent resident for either five or three years, depending on the circumstances
- Be a person of good moral character which means not having criminal convictions, not being a habitual drunkard, not failing to support dependent, and several other grounds
A lawful permanent resident must submit an application on form N-400 and pay the fee. The person must also pass an English and civics exam.
The Facts in Bourtzakis v. US Atty. Gen.
Bourtzakis filed an application for naturalization. The Department of Homeland Security denied his application since he was convicted of delivering cocaine, a controlled substance, under Wash. Rev. Code § 69.50.401(a). The government ruled that such conviction is an aggravated felony barring him from establishing good moral character. Bourtzakis filed a lawsuit in the Middle District of Florida, which ruled that his conviction constituted an aggravated felony. He appealed the decision to the Eleventh Circuit.
Bourtzakis’ Arguments on Appeal
He advanced two arguments before the court, which I will discuss respectively.
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Accomplice Liability under the Washington Statute was Broader that the Federal Statute
To determine whether a statue statute had immigration consequences as a controlled substance conviction, the court must determine whether the state statute is broader than the federal equivalent. In other words, if the state statute prohibits conduct that is broader than the federal statute, then it is not a deportable offense.
Bourtzakis argued that the state’s statute in his case was overbroad since a person may be convicted under the Washington statute as an accomplice even if not charged in the information as such. The court rejected this argument reasoning that Washington’s statute is identical to the federal statute since the same conviction could take place under the federal statute.
Next, Bouzarkis attacked the statute arguing that the mens rea requirements are different under both statutes. He argued that since the state statute required only knowledge and the federal one required intent, then the statute was overbroad. The court rejected this argument reasoning that the requirements are identical since both statutes require that the person intends the result, the violation of the statute.
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The Washington Statiye was broader than the Federal Statute when it comes to administering a controlled substance
Next, Bourtzakis argued that the state statute was overbroad since it proscribed administering a controlled substance while the federal statute did not. The court rejected this argument since the federal statute also prohibited administering since it prohibited administering a controlled substance.
Our office regularly helps clients with the immigration consequences of criminal activity. We also help clients in their petitions before federal courts. Call us today if you would like to apply for naturalization while having a past criminal conviction.
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