Carlos Chang-Cruz v. Attorney General United States , 659 F. App'x 114 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 14-4570
_______________
CARLOS CHANG-CRUZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of a Decision and Order
of the Board of Immigration Appeals
(BIA-1: A040-147-192)
Immigration Judge: Honorable Margaret R. Reichenberg
_______________
Argued: July 12, 2016
Before: AMBRO, KRAUSE, and NYGAARD, Circuit Judges
(Opinion Filed: August 24, 2016)
David Debold
Martin A. Hewett (ARGUED)
Gibson Dunn & Crutcher
1050 Connecticut Avenue, N.W.
9th Floor
Washington, DC 20036
Counsel for Petitioner
Briena L. Strippoli (ARGUED)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION*
_______________
KRAUSE, Circuit Judge.
The Department of Homeland Security (DHS or “Government”) seeks to remove
Appellant Carlos Chang-Cruz from the United States as a result of his two 2005 state
drug convictions, while Chang-Cruz seeks to cancel his removal. After several rounds of
review by the Immigration Judge (IJ) and Board of Immigration Appeals (BIA), the BIA
concluded that he is ineligible for cancellation of removal. We hold that the BIA erred.
Therefore, we will grant Chang-Cruz’s petition for review and will remand the case to the
BIA for further proceedings consistent with this opinion.
I.
Chang-Cruz, a native and citizen of Ecuador, was admitted to the United States in
1987 at the age of 14. In 2005, he pled guilty in New Jersey state court to two counts of
violating New Jersey Stat. Ann. § 2C:35-7(a), which prohibits any “violat[ion] of [N.J.
Stat. Ann. § 2C:35-5] by distributing, dispensing or possessing with intent to distribute a
controlled dangerous substance” on or within 1000 feet of “school property used for
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
2
school purposes . . . or a school bus.” The Government issued a Notice to Appear in
2010, alleging that because these crimes involved a controlled substance, see 8 U.S.C.
§ 1227(a)(2)(B)(i), and are aggravated felonies—namely, offenses involving drug
trafficking, see 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii)—Chang-Cruz was
removable.
Before the IJ, Chang-Cruz conceded that he was removable but denied that he was
convicted of an aggravated felony and, therefore, sought cancellation of removal. See
8 U.S.C. § 1229b. The Government disagreed, arguing that Chang-Cruz’s convictions
are aggravated felonies because they are analogous to violations of 21 U.S.C. § 860,
which prohibits, among other things, “distributing, possessing with intent to distribute, or
manufacturing a controlled substance in or on, or within one thousand feet of, the real
property comprising a public or private elementary, vocational, or secondary school.”
The IJ concluded that Chang-Cruz’s convictions were not analogous to § 860 and
exercised her discretion to cancel his removal.
The Government appealed to the BIA challenging only the IJ’s finding that
Chang-Cruz was eligible for cancellation. See J.A. 30 & n.2, 452. Before that appeal
was decided, the Government sought to remand the case to the IJ for consideration of the
newly received transcript of the colloquy at which Chang-Cruz pled guilty to his § 2C:35-
7 charges. The BIA granted the motion. See 8 C.F.R. § 1003.2(c)(1), (4).
On remand, the IJ reversed course, concluding, in light of the plea transcript, that
Chang-Cruz was convicted of aggravated felonies and was therefore ineligible for
3
cancellation of removal. However, the IJ noted that, assuming Chang-Cruz was not
convicted of an aggravated felony, she would again cancel his removal in the exercise of
her discretion.
The BIA affirmed the IJ’s second ruling that Chang-Cruz is ineligible for
cancellation of removal. He filed a petition for review with our Court, but we remanded
for reconsideration in light of the Supreme Court’s intervening decision in Descamps v.
United States, 133 S. Ct. 2276 (2013). The BIA again affirmed, and Chang-Cruz filed
the petition for review that we now consider.
II.
The IJ had jurisdiction over Chang-Cruz’s removal proceedings under 8 U.S.C.
§ 1229a, while the BIA had jurisdiction to review the IJ’s decision under 8 C.F.R.
§§ 1003.1(b)(3) and 1240.15. When an alien is removable by virtue of having
committed, among other things, an aggravated felony or controlled substance offense, we
have jurisdiction to review the order of removal only to the extent the alien raises
“constitutional claims or questions of law”—including whether the alien was in fact
convicted of an aggravated felony. See 8 U.S.C. § 1252(a)(2)(D); Gourzong v. Att’y
Gen., --F.3d--, 2016 WL 3254900, at *3 (3d Cir. June 14, 2016). Thus, we have
jurisdiction to determine whether Chang-Cruz’s crime of conviction is an aggravated
felony and also whether the BIA adhered to its regulations governing remand.
4
III.
An aggravated felony includes the “illicit trafficking in a controlled substance (as
defined in [21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.
§ 924(c)]).” 8 U.S.C. § 1101(a)(43)(B). Section 924(c)(2) defines a “drug trafficking
crime” as, among other things, “any felony punishable under the Controlled Substances
Act” (CSA). An offense—whether denominated as a misdemeanor or a felony by the
relevant jurisdiction—constitutes a drug trafficking crime if it “proscribes conduct
punishable as a felony” under the CSA. Moncrieffe v. Holder, 133 S. Ct. 1678, 1683
(2013) (quoting Lopez v. Gonzalez, 549 U.S. 47, 60 (2006)). That is, an offense falls
within this “hypothetical federal felony” route, Avila v. Att’y Gen., --F.3d--, 2016 WL
3443112, at *4 (3d Cir. June 23, 2016); Evanson v. Att’y Gen., 550 F.3d 284, 289 (3d Cir.
2008), when it necessarily prohibits conduct that the CSA also prohibits and punishes “by
more than one year’s imprisonment,” Moncrieffe, 133 S. Ct. at 1683 (citing 18 U.S.C.
§ 3559(a)(5)).1
To determine whether a state offense is a hypothetical federal felony, we start with
the “categorical approach.” Moncrieffe, 133 S. Ct. at 1684. Under this approach, we
look “to whether ‘the state statute defining the crime of conviction’ categorically fits
1
Under an alternative route, a state conviction qualifies as an aggravated felony if
it (1) is a felony under state law, and (2) includes an illicit trafficking element. See
Evanson, 550 F.3d at 288. The Government does not contend that this route applies. In
any case, a trafficking element does not include “simple possession or transfer without
consideration.” Id. at 289 (internal quotation marks omitted). Under New Jersey law,
“distribution” and “dispensing” contain no remuneration requirement. See N.J. Stat. Ann.
§ 2C:35-2; In re G.R., 929 A.2d 602, 605 (N.J. App. Div. 2003).
5
within the ‘generic’ federal” crime. Id. This requires us to consider the state and federal
offenses “in the abstract,” id.—that is, to consult only their respective elements—to see
whether a conviction under the state statute “‘necessarily’ involved facts equating to the
generic federal offense,” id. (quoting Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 185-87
(2007)).
In some cases, we may depart from the categorical approach and employ the
“modified categorical approach.” Id. This approach applies when a state statute contains
and describes “several different crimes,” id., and “at least one, but not all[,] of those
crimes matches the generic version,” Descamps, 133 S. Ct. at 2285. The modified
categorical approach allows us to look to “the charging document and jury instructions,
or . . . the plea agreement, plea colloquy, or some comparable judicial record of the
factual basis for the plea.” Moncrieffe, 133 S. Ct. at 1684 (internal quotation marks
omitted) (quoting Nijhawan v. Holder, 557 U.S. 29, 35 (2009)). But under both
approaches, “[w]hether the noncitizen’s actual conduct involved . . . facts” criminalized
by the generic federal crime “‘is quite irrelevant.’” Id. (quoting United States ex rel.
Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939)). Instead, as the Supreme Court
recently re-emphasized in Mathis v. United States, we “focus on the elements . . . of [the
state and federal] crime[s].” 136 S. Ct. 2243, 2254 & n.4 (2016) (quoting Descamps, 133
S. Ct. at 2285). If the elements of the state offense match up with, or are narrower than,
6
those of the generic federal offense, then the state offense is an aggravated felony. If not,
then not.2
Consequently, Mathis requires that, when “faced with an alternatively phrased
statute,” we must “determine whether its listed items are [alternative] elements,” which
must be unanimously found by a jury (or found by a judge at a bench trial) beyond a
reasonable doubt to sustain a conviction, or instead are alternative “means” that a jury
need not unanimously find. Id. at 2256. To make this determination, we consider
whether the relevant jurisdiction’s courts have spoken on the issue; whether the statutory
alternatives carry different minimum or maximum punishments (in which case the
alternatives are elements under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its
progeny); or whether there is some other clear indication in the statute. Mathis, 136 S.
Ct. 2256. Absent any such indication, we may take a “peek” at parts of the record, such
as the indictment or jury instructions. Id. (quoting Rendon v. Holder, 782 F.3d 466, 473-
74 (9th Cir. 2015) (Kozinski, J., dissenting from denial of reh’g en banc)). These sources
might “indicate, by referencing one alternative term to the exclusion of all others, that the
statute contains a list of elements,” or else charge several of the statutory alternatives,
which “is as clear an indication as any that each alternative is only a possible means of
commission.” Id. (emphasis added). If the statute, case law, and record do not “speak
2
If conduct is punishable by the CSA as a felony only when certain sentencing
factors are present, “it may be necessary to take account of [those] factors too,” such that
an alien’s state conviction is for an aggravated felony only if that conviction necessarily
“establish[ed] those factors as well.” Moncrieffe, 133 S. Ct. at 1687; see Carachuri-
Rosendo v. Holder, 560 U.S. 563, 577 (2010).
7
plainly,” then the record “will not be able to satisfy [the] ‘demand for certainty’ [needed]
when determining whether a defendant was convicted of a generic offense.” Id. (quoting
Shepard v. United States, 544 U.S. 13, 21 (2005)).
Turning to the statutes before us, the Government concedes that if Mathis applies
(which it does3), we cannot conclude that Chang-Cruz was convicted of an aggravated
felony because it is not “certain[],” see id., whether “distribution” and “dispensing” in
§ 2C:35-7 constitute alternative elements or alternative means. See Oral Arg. at 23:05
(argued July 12, 2016). If they are both elements, we may apply the modified categorical
approach to determine the elements of Chang-Cruz’s conviction. If they are both means,
there is one element satisfied by either distribution or dispensing, in which case § 2C:35-
7 sweeps more broadly than § 860, which criminalizes distribution but not dispensing.4
We agree with the Government. First, neither we nor the parties have uncovered
any case clearly holding that distribution and dispensing are alternative elements, but we
have found suggestions to the contrary—namely, cases that appear to treat distribution
3
Although decided in the context of the Armed Career Criminal Act (“ACCA”),
Mathis’s focus on the elements of a crime applies in the immigration context. See
Mathis, 136 S. Ct. at 2251 & n.2 (explaining that the principle that we look to elements,
and not facts, is a “mantra” of cases “applying the categorical approach outside the
ACCA context—most prominently, in immigration cases”); see also Rojas v. Att’y Gen.,
728 F.3d 203, 216 n.12 (3d Cir. 2013) (en banc) (stating that “we have rejected any
notion that the [categorical or modified categorical] analysis is different depending on
whether the federal baseline statute resides in the [Immigration and Nationality Act] or
the ACCA”).
4
The definitions of “distributing” and “dispensing” under New Jersey law are
almost identical to their respective definitions under federal law. Compare N.J. Stat.
Ann. § 2C:35-2, with 21 U.S.C. § 802(10), (11).
8
and dispensing as alternative means of fulfilling a single element. See, e.g., State v.
Maldonado, 645 A.2d 1165, 1185 (N.J. 1994) (upholding, on other grounds, a jury charge
stating that, “to find against [the defendant] on this element, the State must prove ‘he
knew that it was cocaine and intended to distribute or dispense it to [another]” (emphasis
added)); State v. Wilkinson, 316 A.2d 6, 8 (N.J. App. Div. 1973) (concluding that there
was sufficient evidence to prove that the defendant was guilty of “possession of
marijuana with intent to distribute or dispense it”).
Second, Chang-Cruz’s judgments of conviction indicate that he was convicted of
“DISPENS[ING]/DISTRIBUT[ING]” drugs within 1000 feet of a school, J.A. 91, 94,
while his indictments charge him with “dispens[ing] or distribut[ing] marijuana” and
“possess[ing] with intent to dispense or distribute marijuana,” J.A. 93, 96. This is “as
clear an indication as any that each alternative,” distribution and dispensing, “is only a
possible means of commission, not an element that the prosecutor must prove to a jury
beyond a reasonable doubt,” Mathis, 136 S. Ct. at 2257.
Third, the jury instructions for § 2C:35-7 instruct that, to convict the defendant
under the statute when the defendant distributes or dispenses drugs, the jury must
conclude “that the defendant knowingly or purposely distributed or dispensed a
controlled dangerous substance.” See Model Jury Charge (Criminal) Distributing or
Dispensing Controlled Dangerous Substances Near or on School Property Used for
9
School Purposes (1992).5 That the judge instructs the jury to find distribution or
dispensing suggests that these terms are alternative means, not alternative elements. But
see id. (instructing the judge to charge that “[t]he defendant is charged with (distributing)
(dispensing) a controlled dangerous substance near or on school property”).
In view of the Government’s concession and the ambiguity in New Jersey law, we
conclude that the record does not satisfy the “demand for certainty” necessary to
conclude that Chang-Cruz was convicted of distribution or possessing with intent to
distribute instead of dispensing or possessing with intent to dispense, Mathis, 136 S. Ct.
at 2257, and therefore we cannot conclude that he was convicted of a generic federal
offense.6 Consequently, we hold that Chang-Cruz was not convicted of an aggravated
felony.7
IV.
5
These instructions are available at
http://www.judiciary.state.nj.us/criminal/juryindx.pdf. We note that, with respect to
§ 2C:35-5, which is a separate controlled substances provision, there is a model
instruction for distribution of a drug but no model instruction for dispensing a drug. This
may suggest that distribution and dispensing are alternative elements but does not speak
with the requisite certainty for us to reach such a conclusion.
6
In view of our disposition, we leave for another day the issues of whether
“school property” and “school bus” in § 2C:35-7 are alternative locational elements or
means and whether “school property . . . used for school purposes” in § 2C:35-7 is
broader than “real property comprising a . . . school” in § 860.
7
An alien has the burden of showing that he is eligible for cancellation of
removal. See 8 U.S.C. § 1229a(c)(4)(A). Even so, if the statute under which he was
convicted is broader than the federal analogue, then we cannot conclude that he was
convicted of an aggravated felony. See Moncrieffe, 133 S. Ct. at 1685 & n.4.
10
Because Chang-Cruz was not convicted of an aggravated felony, he is not
ineligible for cancellation of removal on this basis. In the Government’s initial August
19, 2011 notice of appeal, and as the BIA carefully noted in its opinion, “aside from the
argument that [Chang-Cruz] is statutorily precluded from establishing his eligibility for
cancellation of removal . . . on account of having been convicted of an aggravated felony,
the DHS has not otherwise challenged the Immigration Judge’s conclusion that [Chang-
Cruz] warranted a grant of said relief, as a matter of discretion.” J.A. 30; 459. Nor,
following the IJ’s decision on remand indicating that she would exercise her discretion to
grant relief if Chang-Cruz had not been convicted of an aggravated felony, J.A. 26, did
the Government (1) argue to the BIA that the IJ’s discretionary determination was
erroneous, (2) cross-appeal to the BIA, or (3) argue to this Court that Chang-Cruz is
ineligible for cancellation on some other ground. Rather, the Government has failed to
raise any meaningful challenge to Chang-Cruz’s cancellation besides his purported
conviction for an aggravated felony, and the BIA twice reviewed the IJ’s decision
without disturbing her conclusion as to discretionary relief.
It appears under these circumstances, and consistent with its own regulations,
precedents, and practice, that the BIA may be expected on remand to deem any new
challenge by the Government waived and thus to reinstate the IJ’s order cancelling
Chang-Cruz's removal. See, e.g., 8 C.F.R. § 1003.3(b); In re R-A-M-, 25 I. & N. Dec.
657, 663 (BIA 2012); see also In re William Ysla, 2010 WL 5559164 (BIA Dec. 23,
2010) (unpublished). Consistent with our own precedent and practice, however, we leave
11
that to the BIA in the first instance and will grant the petition for review and remand for
the BIA to conduct further proceedings as appropriate. See INS v. Ventura, 537 U.S. 12,
16 (2002); Singh v. Gonzalez, 406 F.3d 191, 199-200 (3d Cir. 2005); see also Lin v.
Attorney General, 543 F.3d 114, 122-26 (3d Cir. 2008).8
In closing, we note our expectation that on remand and in future cases the
Government will refrain from engaging in the problematic conduct that has marked its
performance here. The last time this case was before us, the Justice Department
requested and we granted a remand to the BIA for the limited purpose of the BIA
considering “what effect, if any, Descamps has on this immigration case.” J.A. 619.
Once back before the BIA, however, the Government asserted that Descamps was
inapplicable and instead proceeded to argue that the plea transcript was relevant to
whether Chang-Cruz should receive discretionary relief, along with an inadequate
explanation for why it failed to obtain that plea transcript before the IJ rendered her initial
8
In view of our determination that Chang-Cruz’s convictions are not aggravated
felonies, we would normally have no need to address Chang-Cruz’s alternative argument
that the BIA improperly remanded his case to the IJ for consideration of the plea
transcript under a modified categorical analysis. However, to the extent that the
Government might rely on the transcript in making any argument concerning
discretionary relief, we note that there was no evidence introduced to satisfy the pre-
requisite for the BIA’s consideration of the transcript under 8 C.F.R. § 1003.2(c)(1) and
(4)—the requirement that the transcript “could not have been discovered or presented at
the former hearing.” See 8 C.F.R. § 1003.2(c)(1). It would appear that the consideration
of this transcript, at least without an evidentiary finding as to the justification for the
Government’s delay, was in error. See Sakhawati v. Lynch, 823 F.3d 852, 858 (6th Cir.
2016); Ivanov v. Gonzalez, 487 F.3d 635, 639 (8th Cir. 2007); Johnson v. Ashcroft, 378
F.3d 164, 166 (2d Cir. 2004); Ramon-Sepulveda v. INS, 743 F.2d 1307, 1310 (9th Cir.
1984); In re A-S-J-, 25 I. & N. Dec. 893, 897 (BIA 2012).
12
decision cancelling Chang-Cruz’s removal. These were issues well outside the scope of
our remand. See Pareja v. Att’y Gen., 615 F.3d 180, 197 (3d Cir. 2010). Most troubling,
however, is the Government’s resort before the BIA to a frivolous argument that Chang-
Cruz engaged in “obstructionism” by opposing the Government’s remand to the IJ to
consider the plea transcript. See J.A. 879. It comports with neither the professionalism
nor the ethical mandates of Government counsel to chill vigorous advocacy by asserting
that an alien who avails himself of the congressionally prescribed opportunity to seek
cancellation of removal thereby loses the privilege of cancellation. We trust that this was
an unfortunate mistake that will not be repeated.
* * *
For the foregoing reasons, we grant the petition for review and remand to the BIA
for further proceedings consistent with this opinion.
13