Dwayne Kamar Sybbliss v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-2242
___________
DWAYNE KAMAR SYBBLISS,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A062-463-186)
Immigration Judge: Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 3, 2021
Before: GREENAWAY, JR., KRAUSE and BIBAS, Circuit Judges
(Opinion filed: August 5, 2021)
___________
OPINION *
___________
PER CURIAM
Dwayne Kamar Sybbliss petitions for review of his final order of removal. We
will deny the petition.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
I.
Sybbliss is a citizen of Jamaica who entered the United States as a lawful
permanent resident in 2012. Sybbliss was later convicted twice in 2015 and once in 2018
of possessing 50 grams or less of marijuana in violation of N.J. Stat. Ann. § 2C:35-
10(a)(4). On the basis of all three convictions, the Department of Homeland Security
charged Sybbliss as removable for having been convicted of a controlled substance
violation “other than 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). (A.272.) Sybbliss conceded his
convictions but contested the charge. He did not apply for any relief from removal. An
Immigration Judge (“IJ”) sustained the charge and ordered Sybbliss’s removal to
Jamaica. The Board of Immigration Appeals (“BIA”) affirmed by dismissing Sybbliss’s
appeal on the merits. Sybbliss petitions for review. 1
II.
Sybbliss raises essentially four arguments on review, but they lack merit. First,
Sybbliss argues that he is not removable pursuant to § 1227(a)(2)(B)(i) because he
qualifies for the so-called “personal use” exception under that statute. As noted above,
the statute renders noncitizens removable for controlled substance violations “other than
a single offense involving possession for one’s own use of 30 grams or less of
1
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Sybbliss’s convictions limit our
jurisdiction to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C),
(D). Sybbliss’s arguments qualify, and we review them de novo. See Myrie v. Att’y
Gen., 855 F.3d 509, 515 (3d Cir. 2017).
2
marijuana[.]” 8 U.S.C. § 1227(a)(2)(B)(i). Sybbliss argues that he qualifies for this
exception because his three offenses collectively involved less than 30 grams.
The BIA properly rejected that argument. The statute excepts only a “single
offense,” and Sybbliss does not qualify for the exception because he has been convicted
of three offenses, 2 not one. See Rodriguez v. Holder, 619 F.3d 1077, 1079-80 (9th Cir.
2010) (per curiam). None of the authorities on which Sybbliss relies suggests otherwise, 3
and his arguments about Congressional intent and the wisdom of the law 4 do not allow us
to disregard the plain language of this statute. Thus, we agree with the BIA that Sybbliss
does not qualify for the personal-use exception. 5
2
In his brief, Sybbliss asserts that his 2018 conviction “was expunged by a State Judge.”
Sybbliss has not provided any details or raised any argument in that regard, and he does
not appear to have raised this issue before the BIA. In any event, the analysis herein
would be the same if Sybbliss had two operative convictions rather than three.
3
Sybbliss relies, for example, on Esquivel v. Lynch, 803 F.3d 699 (5th Cir. 2015). In
that case, the court rejected the BIA’s conclusion that the personal-use exception did not
apply to a conviction of possessing marijuana within 1,000 feet of a school. See id. at
702-06. Esquivel did not involve multiple convictions and did not suggest that the
personal-use exception applies despite multiple conviction. To the contrary, the court
recognized that the exception applies only when the conviction in question is the
noncitizen’s first controlled substance offense. See id. at 702.
4
Sybbliss notes that New Jersey voters have approved a state constitutional amendment
legalizing recreational marijuana. He does not argue that this development invalidates
his convictions or their immigration consequences, however, and it does not. Cf. Khan v.
Att’y Gen., 979 F.3d 193, 201-03 (3d Cir. 2020).
5
For the same reason, we reject Sybbliss’s argument that he was eligible for a waiver
under 8 U.S.C. § 1182(h). That provision, inter alia, allows the Attorney General to
waive inadmissibility under § 1182(a)(2)(A)(i)(II) “insofar as it relates to a single offense
of simple possession of 30 grams or less of marijuana[.]” 8 U.S.C. § 1182(h); see also
3
Second, Sybbliss argues that his marijuana convictions are not otherwise
removable offenses under § 1227(a)(2)(B)(i). He relies solely on a statement by a panel
of this Court in Saunders v. Attorney General, 197 F. App’x 189 (3d Cir. 2006) (not
precedential). In that case, the panel concluded that the offense of selling marijuana in
violation of New York Penal Law § 221.40 did not qualify for the personal-use exception
because the offense required a sale rather than mere personal use. See id. at *1. In doing
so, the panel stated that, while § 1227(a)(2)(B)(i) “does not require that petitioner have
engaged in ‘trafficking” in a controlled substance,” it requires “that he has engaged in
something more than mere possession of less than 30 grams of marijuana.” Id.
Sybbliss argues that his offenses are not removable under the statute because, even
considering his three convictions collectively, he did not engage in “something more than
mere possession of less than 30 grams of marijuana.” But this statement in Saunders, in
addition to appearing in a nonprecedential opinion, merely distinguished between an
offense involving a sale and an offense involving personal use. It did not address the
effect of multiple convictions. Nor did it suggest that convictions of marijuana
possession that do not qualify for the personal-use exception are not controlled substance
violations, which they indisputably are. 6
Syblis v. Att’y Gen., 763 F.3d 348, 352 (3d Cir. 2014) (emphasizing that the waiver
applies only to a “single offense”).
6
Before the IJ, Sybbliss filed a motion to terminate his removal proceeding and argued
that his convictions do not qualify as removable controlled substance violations for the
different reason that New Jersey law classifies them as disorderly persons offenses. He
4
Third, Sybbliss argues that the IJ denied him due process because she acted as an
advocate for the Government by “bringing” or “expanding” the charges against him to
include all three of his convictions. Sybbliss claims that the IJ did so because the
Government, in opposition to his motion to terminate, did not specifically argue that his
three separate convictions prevented him from qualifying for the personal-use exception.
There is no basis for this argument. Sybbliss’s motion to terminate was not based
on the personal-use exception. In any event, the Government expressly charged Sybbliss
as removable on the basis of all three of his convictions and expressly charged that he
was removable because he was convicted of a controlled substance violation “other than
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). (A.272.) The IJ did not “bring” a charge or
“expand” the charges against him by sustaining that charge.
Finally, Sybbliss argues that the IJ erred in informing him that he is not eligible for
cancellation of removal under 8 U.S.C. § 1229b(a). Sybbliss raised this argument before
the BIA, and the BIA did not address it, but we need not remand for the BIA to do so
because Sybbliss is ineligible for cancellation as a matter of law. See Ricketts v. Att’y
Gen., 955 F.3d 348, 351-52 (3d Cir. 2020); see also Yuan v. Att’y Gen., 642 F.3d 420,
427 (3d Cir. 2011) (adopting harmless-error review in the immigration context).
has not raised that issue on review. Even if he had, the IJ applied the proper framework
in rejecting that argument and we see no immediately apparent basis to question her
conclusion. See Castillo v. Att’y Gen., 729 F.3d 296, 307 (3d Cir. 2013).
5
Lawful permanent residents like Sybbliss are eligible for cancellation of removal
if, inter alia, they have “resided in the United States continuously for 7 years after having
been admitted in any status[.]” 8 U.S.C. § 1229b(a)(2). The period of continuous
residence is deemed to end either “(A) . . . when the alien is served with a notice to
appear under section 1229(a) of this title, or (B) when the alien has committed an
offense” that renders the alien inadmissible or removable, “whichever is earliest.” 8
U.S.C. § 1229b(d)(1)(A) & (B) (emphasis added).
Sybbliss relies on the first of these provisions, as well as Pereira v. Session, 138 S.
Ct. 2105 (2018), in arguing that he accrued seven years of continuous residence before
the DHS served his notice to appear in October 2019. But Sybbliss’s period of
continuous residence ended under the second of these provisions before he accrued seven
years. Sybbliss arrived in the United States in 2012, and he committed all three offenses
between 2015 and 2018, so his period of continuous residence ended under the second of
these provisions before he accrued seven years. See Barton v. Barr, 140 S. Ct. 1442,
1449 (2020). Pereira did not involve the second of these provisions and does not
otherwise support any argument in this regard. See Pereira, 138 S. Ct. at 2110 n.3
(noting that § 1229b(d)(1)(B) “is not at issue here”).
III.
For these reasons, we will deny Sybbliss’s petition for review. The Government’s
motion to dismiss his petition for lack of jurisdiction is denied.
6