Mohamed Sambare v. Attorney General United States ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-1337
_____________
MOHAMED SAMBARE,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
Respondent
______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A058-305-898)
Immigration Judge: Honorable Kuyomars Golparvar
______________
Submitted Pursuant to Third Circuit LAR 34.1(a):
March 8, 2019
______________
Before: AMBRO, RESTREPO, GREENBERG,
Circuit Judges.
(Filed: May 28, 2019)
Raymond G. Lahoud
Norris McLaughlin & Marcus
515 West Hamilton Street
Suite 502
Allentown, PA 18101
Counsel for Petitioner
Erik R. Quick
Marina Carin Stevenson
United States Department of Justice
Office of Immigration Litigation
450 5th Street, N.W.
P.O. Box 878
Washington, DC 20001
Counsel for Respondent
______________
OPINION
______________
RESTREPO, Circuit Judge.
Petitioner Mohamed Sambare seeks review of the
decision of the Board of Immigration Appeals (“BIA”), which
dismissed his appeal of an order of removal entered by the
Immigration Court. In particular, Sambare asserts that the BIA
erred in finding that his conviction under Pennsylvania’s
statute criminalizing driving under the influence of a controlled
substance, 75 Pa. Cons. Stat. § 3802(d)(1)(i) (“Pennsylvania
DUI Statute”), constituted a conviction for a “violation of . . .
any law or regulation of a State . . . relating to a controlled
substance . . . , other than a single offense involving possession
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for one’s own use of 30 grams or less of marijuana” pursuant
to 8 U.S.C. § 1227(a)(2)(B)(i). We disagree, and thus we will
deny the Petition.
I.
Sambare is a thirty-one-year-old native of Côte d’Ivoire
and a citizen of Burkina Faso. In 2006, Sambare was admitted
to the United States as a lawful permanent resident. In the
years following his admission to the United States, Sambare
was convicted of various crimes, including credit card theft and
forgery. In connection with these convictions, U.S.
Immigration and Customs Enforcement (“ICE”) initiated
removal proceedings in August 2013, when Sambare returned
to the United States from Ghana, where he was visiting his
mother. ICE asserted that Sambare was inadmissible pursuant
to 8 U.S.C. § 1182(a)(2)(A)(i)(I), insofar as it alleged that
Sambare previously had been convicted of “crime[s] involving
moral turpitude.” In October 2013, however, an Immigration
Court granted Sambare’s application for a waiver of
inadmissibility pursuant to 8 U.S.C. § 1182(h) and thus
restored his status as a lawful permanent resident.
In September 2015, police in York County,
Pennsylvania, stopped Sambare in his vehicle after he
allegedly made an illegal U-turn. During the traffic stop, the
officer informed Sambare that he detected the scent of
marijuana, and Sambare—who at one point provided a false
name to the officer—admitted that he had smoked marijuana
prior to operating the vehicle. Pursuant to a subsequent drug
screening, Sambare tested positive for marijuana in his system.
The Commonwealth charged Sambare with, among other
crimes, driving under the influence of a Schedule I controlled
substance, in violation of the Pennsylvania DUI Statute. In
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April 2016, Sambare pleaded guilty to violating the
Pennsylvania DUI Statute.
As a result of Sambare’s conviction for violating the
Pennsylvania DUI Statute, the U.S. Department of Homeland
Security initiated removal proceedings, asserting that
Sambare’s conviction was for a “violation of . . . any law or
regulation of a State . . . relating to a controlled substance . . . ,
other than a single offense involving possession for one’s own
use of 30 grams or less of marijuana” under 8 U.S.C.
§ 1227(a)(2)(B)(i). The Immigration Court found that
Sambare was removable, concluding that his violation of the
Pennsylvania DUI Statute “is a completely different type of
offense involving being under the influence of marijuana and
. . . fall[s] outside of the exception” for possession of thirty
grams or less of marijuana for personal use. 1 App. 18A. On
appeal, the BIA “disagree[d] with [Sambare]’s argument that
his controlled substance conviction falls within the scope of the
‘possession for personal use’ exception in [8 U.S.C.
§ 1227(a)(2)(B)(i)]” and concluded that his “conviction
1
The Immigration Court also denied Sambare’s
application for asylum and withholding of removal under the
Immigration and Nationality Act of 1965 and withholding and
deferral of removal under the United Nations Convention
Against Torture. On appeal, Sambare only challenged the
Immigration Court’s decision with respect to the Pennsylvania
DUI Statute. Because the sole issue before us is whether
Sambare’s conviction under the Pennsylvania DUI Statute falls
within the “possession for personal use” exception under
8 U.S.C. § 1227(a)(2)(B)(i), we only have included the details
of the Immigration Court’s decision insofar as they relate to
this issue.
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encompasses more than simply ingesting marijuana for
personal use.” Id. at 8A. The BIA reasoned that Sambare’s
conviction “is associated with the prohibition of driving,
operating, or actual physical control of the movement of a
vehicle . . . while there is a controlled substance in the
individual’s blood” and that such a conviction “is more serious
than simple possession.” Id. The BIA thus dismissed
Sambare’s appeal, and he petitions this Court for review of the
BIA’s decision.
II.
The BIA exercised jurisdiction pursuant to 8 C.F.R.
§§ 1003.1(b)(3), 1240.15. The Immigration and Nationality
Act of 1965 places restrictions on the jurisdiction of our Court
to review final orders of removal. As relevant to this case, the
Act restricts our jurisdiction “to review any final order of
removal against an alien who is removable by reason of having
committed a criminal offense covered in section . . .
1227(a)(2)[](B),” which relates to controlled substances.
8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, “to
determine whether the necessary jurisdiction-stripping facts
are present in a particular case, specifically . . . whether [an
alien] has been convicted of one of the enumerated offenses.”
Borrome v. Attorney Gen., 687 F.3d 150, 154 (3d Cir. 2012).
Thus, subject to the principles of deference espoused in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
467 U.S. 837 (1984), we review de novo the BIA’s legal
determination that Sambare’s conviction under the
Pennsylvania DUI Statute constituted a conviction for a
“violation of . . . any law or regulation of a State . . . relating to
a controlled substance . . . , other than a single offense
involving possession for one’s own use of 30 grams or less of
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marijuana” pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). 2 See
Denis v. Attorney Gen., 633 F.3d 201, 205–06 (3d Cir. 2011).
The sole issue in this case is whether the Court can
interpret the word “involving” in such a broad manner so as to
construe Sambare’s conviction for violating Pennsylvania’s
DUI Statute as a conviction for “a single offense involving
possession for one’s own use of 30 grams or less of marijuana,”
the effect of which would be to enable Sambare to avail himself
of the “possession for personal use” exception to removability
contained in 8 U.S.C. § 1227(a)(2)(B)(i). Sambare urges us to
analyze this issue by applying the categorical approach, which
is “a method often used to ascertain whether a prior conviction
‘fits’ the definition of a generic federal predicate offense for
purposes of certain immigration or sentencing consequences.”
Rojas v. Attorney Gen., 728 F.3d 203, 214 (3d Cir. 2013) (en
banc). Under the categorical approach, a court “determine[s]
only whether a conviction under [a] state statute ‘necessarily’
contained all of the elements of the [relevant] federal baseline
offense.” Id. To make such a determination, a court
“compar[es] the elements of the state and federal crimes,”
rather than “delv[ing] into the particular facts of a conviction[,]
to ascertain if there is a proper fit.” Id. at 214–15.
The categorical approach, however, is inapplicable
here. We previously have refused to apply the categorical or
2
We need not decide whether we should accord
deference under Chevron to the BIA’s legal determinations
because, even applying a de novo standard, we would deny
Sambare’s Petition.
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“modified categorical” 3 approach to determine whether a state
conviction “relate[d] to a controlled substance” under 8 U.S.C.
§ 1227(a)(2)(B)(i), see id. at 215 (emphasis added), and we
now similarly refuse to apply the categorical or modified
categorical approach to determine whether Sambare’s
conviction “involve[s] possession for one’s own use of 30
grams or less of marijuana,” 8 U.S.C. § 1227(a)(2)(B)(i). This
is not a case in which the Court “must compare the defendant’s
or the noncitizen’s conviction to a ‘generic crime’ such as
‘burglary’ or ‘theft,’” a task for which application of the
categorical approach would be appropriate. Rojas, 728 F.3d at
215. Rather, we are presented with the quite specific “crime”
of “a single offense involving possession for one’s own use of
30 grams or less of marijuana,” 8 U.S.C. § 1227(a)(2)(B)(i)
(emphasis added), and thus it is proper for us to consider
simply “the text of the law,” Rojas, 728 F.3d at 216.
“In cases of statutory interpretation, ‘we begin by
looking at the terms of the provisions [at issue] and the
commonsense conception of those terms.’” Rojas, 728 F.3d at
208 (alteration in original) (internal quotation marks omitted)
(quoting Carachuri-Rosendo v. Holder, 560 U.S. 563, 573
3
The modified categorical approach “permits a slight
deviation . . . from the baseline rule that an inquiring court may
not look into the particular circumstances of a conviction.”
Rojas, 728 F.3d at 215. If a “statute of conviction lists
elements in the alternative, some of which fit the federal
definition and some of which do not,” under the modified
categorical approach, “a court is permitted ‘to consult a limited
class of documents . . . to determine which alternative formed
the basis of the defendant’s prior conviction.’” Id. (quoting
Descamps v. United States, 570 U.S. 254, 257 (2013)).
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(2010)). The “commonsense conception” of the phrase
“possession for one’s own use of 30 grams or less of
marijuana” is that Congress was referring to the crime of
“simple possession” of a small amount of marijuana,
exempting from the harsh immigration consequence of
removal those convicted of a misdemeanor drug crime that is
only punishable in Pennsylvania, for example, by thirty days’
imprisonment and/or a $500 fine. See 35 Pa. Cons. Stat. § 780-
113(g); see also In re Moncada-Servellon, 24 I. & N. Dec. 62,
65 (2007) (“[T]he most natural, common-sense reading of the
personal-use exception, viewed in its statutory context, is that
it is directed at ameliorating the potentially harsh immigration
consequences of the least serious drug violations only—that is,
those involving the simple possession of small amounts of
marijuana.”). In this case, however, Sambare was not
convicted of simple possession of a small amount of
marijuana—he was convicted of operating a vehicle under the
influence of marijuana in violation of the Pennsylvania DUI
Statute, which undoubtedly is a more serious offense than
simple possession. The touchstone of laws prohibiting simple
possession of marijuana (and the relaxed penalties associated
with such laws) is that any consequences of such possession of
marijuana are normally personal to the possessor and do not
affect a wide population of people in any immediate way. See,
e.g., 35 Pa. Cons. Stat. § 780-113(a)(31) (prohibiting
“possession of a small amount of mari[j]uana only for personal
use” and the distribution of a small amount of marijuana for a
purpose other than sale (emphasis added)). In contrast,
Sambare’s crime of conviction—violation of the Pennsylvania
DUI Statute—is intended to protect the general public on our
roads and highways from persons whose ability to operate a
vehicle may be impaired due to the effects of, among other
things, marijuana use. See Commonwealth v. Griffith, 32 A.3d
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1231, 1238 (Pa. 2011) (holding that the “statutory framework
with regard to prohibitions against driving after drug usage” is
similar to that with respect to driving after consuming alcohol,
the “focus of [which] remains on the inability of the individual
to drive safely” (emphasis added)). Therefore, Sambare’s
conviction under the Pennsylvania DUI Statute for driving
under the influence of marijuana, to which he pleaded guilty,
is a more serious crime than simple possession of a small
amount of marijuana, and we decline to interpret the word
“involving” in such a broad way so as to construe a conviction
under the Pennsylvania DUI Statute as a “a single offense
involving possession for one’s own use of 30 grams or less of
marijuana” under 8 U.S.C. § 1227(a)(2)(B)(i). See Moncada-
Servellon, 24 I. & N. Dec. at 65 (“The personal-use exception
is not intended or understood by Congress to apply to offenses
that are significantly more serious than simple possession by
virtue of other statutory elements that greatly increase their
severity.”).
III.
Therefore, Sambare’s conviction for a violation of the
Pennsylvania DUI Statute constituted a conviction for a
“violation of . . . any law or regulation of a State . . . relating to
a controlled substance . . . , other than a single offense
involving possession for one’s own use of 30 grams or less of
marijuana” pursuant to 8 U.S.C. § 1227(a)(2)(B)(i).
Accordingly, we will deny Sambare’s Petition because we lack
jurisdiction to review the BIA’s final order of removal pursuant
to 8 U.S.C. § 1227(a)(2)(B)(i). See 8 U.S.C. § 1252(a)(2)(C).
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