Kevin Marsh v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2409
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KEVIN ANTHONY MARSH,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A060-010-154)
Immigration Judge: Pallavi Shirole
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 5, 2023
Before: HARDIMAN, PORTER, and FREEMAN, Circuit Judges
(Opinion filed: February 14, 2023)
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OPINION*
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Kevin Marsh petitions for review of his final order of removal. We stayed his
petition pending his pursuit of a motion for reconsideration before the Board of
Immigration Appeals (“BIA”). The Government has filed a motion to lift the stay
because the BIA has since denied reconsideration. We grant that motion and will dismiss
in part and deny in remaining part Marsh’s petition for review.
I.
Marsh is a citizen of Jamaica who was admitted to the United States as a lawful
permanent resident in 2008. In 2019, he was convicted of possessing with the intent to
distribute between five and 25 pounds of marijuana in violation of N.J. Stat. Ann.
§§ 2C:35-5(a)(1) and 2C:35-5(b)(10)(b). The Government charged him as removable on
the grounds that his conviction (1) was for an offense “relating to” a controlled substance,
see 8 U.S.C. § 1227(a)(2)(B)(i), and (2) was an “illicit trafficking” aggravated felony, see
8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii).
Marsh, through counsel, conceded the conviction but denied the charges and filed
a motion to terminate his proceeding on the ground that his conviction does not render
him removable. He did not apply for any other relief from removal. An Immigration
Judge (“IJ”) denied Marsh’s motion and ordered his removal to Jamaica. Marsh appealed
through counsel to the BIA, which affirmed. Marsh filed a petition for review of that
ruling. He also filed a motion for reconsideration with the BIA in which he raised a new
2
legal argument. The BIA denied his motion for reconsideration on August 24, 2022, but
Marsh has not filed a petition for review of that ruling.
II.
Marsh asks us to decide the issue that he raised before the BIA in his motion for
reconsideration and that the BIA later rejected. In that motion, Marsh argued for the first
time that his notice to appear did not include the time and date of his hearing as required
by 8 U.S.C. § 1229(a)(1)(G)(i). He further argued that the BIA should terminate his
proceeding for that reason because this defect either deprived the IJ of jurisdiction or
violated claims-processing rules. The Government argues that we should dismiss
Marsh’s petition for review to this extent. We agree.
If this issue were truly jurisdictional, then we might have been obliged to decide it
before reaching the merits. See Perez-Sanchez v. Att’y Gen., 935 F.3d 1148, 1153 (11th
Cir. 2019). But as we have since clarified, § 1229(a) “is akin to a claims-processing
rule.” Chavez-Chilel v. Att’y Gen., 20 F.4th 138, 143 (3d Cir. 2021) (citing Perez-
Sanchez, 935 F.3d at 1153-57). Thus, Marsh’s argument is subject to the exhaustion
requirement, see Perez-Sanchez, 935 F.3d at 1157, which is itself jurisdictional, see
Nkomo v. Att’y Gen., 986 F.3d 268, 272 (3d Cir. 2021).
Marsh did not exhaust this issue as part of the proceeding giving rise to the order
of removal that he challenges in this petition for review. Instead, Marsh later raised this
issue in his motion to reconsider before the BIA and the BIA later denied it. The BIA’s
3
denial of reconsideration is a separate final order that requires a separate petition for
review. See Stone v. INS, 514 U.S. 386, 394-95, 405-06 (1995); Castro v. Att’y Gen.,
671 F.3d 356, 364 (3d Cir. 2012). But Marsh has not filed a separate petition for review.1
And Marsh’s previously-filed petition for review is not effective to challenge the BIA’s
subsequent denial of reconsideration under the circumstances presented here. Cf.
Marshall v. Comm’r Pa. Dep’t of Corr., 840 F.3d 92, 96-97 & n.2 (3d Cir. 2016) (per
curiam) (discussing, inter alia, Khan v. Attorney General, 691 F.3d 488 (3d Cir. 2012)).
Thus, we lack jurisdiction to consider this argument and will dismiss the petition
for review to that extent. We nevertheless note that errors of the kind that Marsh alleges
can be harmless and that Marsh has not raised anything suggesting that he was
prejudiced. See Chavez-Chilel, 20 F.4th at 144.
III.
Turning to the merits, Marsh argues that the BIA erred in concluding that his
conviction under N.J. Stat. Ann. §§ 2C:35-5(a)(1) and 2C:35-5(b)(10)(b) relates to a
controlled substance and is an aggravated felony. In reaching its conclusions, the BIA
acknowledged that the New Jersey statute does not categorically match its federal
counterpart because New Jersey controls more substances. But the BIA held that
1
The only document that Marsh has filed with this Court since the BIA denied
reconsideration is a letter pursuant to Fed. R. App. P. 28(j). Marsh filed that document
beyond the 30-day period for filing a petition for review, see 8 U.S.C. § 1252(b)(1), and
that document does not mention this issue or the BIA’s denial of reconsideration in any
4
Marsh’s conviction nevertheless relates to a controlled substance because (1) the New
Jersey statute is divisible as to drug type, (2) drug type thus can be determined by using
the modified categorical approach and looking to Marsh’s conviction documents,
(3) those documents reveal that the drug was marijuana, and (4) marijuana is federally
controlled. The BIA also held that Marsh’s marijuana conviction is punishable as a
federal drug felony and therefore constitutes an aggravated felony.
Marsh’s only challenge to these rulings is that the BIA erred at the first of these
steps in holding that the New Jersey statute is divisible as to drug type. We disagree. A
statute is divisible if it lists alternative elements that define separate crimes but not if it
lists separate factual means of committing a single crime. See Mathis v. United States,
579 U.S. 500, 504-06, 509 (2016). “If statutory alternatives carry different punishments,
then under Apprendi [v. New Jersey, 530 U.S. 466 (2000)] they must be elements.” Id. at
518.
We have not addressed in a precedential opinion whether N.J. Stat. Ann. § 2C:35-
5 is divisible as to drug type. Cf. Martinez v. Att’y Gen., 906 F.3d 281, 287 (3d Cir.
2018) (noting petitioner’s concession that the statute is divisible). But we have held that
Pennsylvania’s analogous statute is. See United States v. Abbott, 748 F.3d 154, 158-59
(3d Cir. 2014) (addressing 35 Pa. Stat. Ann. § 780-113(a)(30)); see also Hillocks v. Att’y
Gen., 934 F.3d 332, 344 (3d Cir. 2019) (summarizing Abbott). We reasoned that,
event. Marsh’s Rule 28(j) letter is addressed later in this opinion.
5
although the Pennsylvania statute criminalizes “the manufacture, delivery, or possession
with intent to manufacture or deliver, a controlled substance” generally, Abbott, 748 F.3d
at 158, “the type of controlled substance involved in a violation of [the statute] alters the
prescribed range of penalties. Accordingly, the type of drug, insofar as it increases the
possible range of penalties, is an element of the crime. Because [the statute] can be
violated by the possession of and intent to distribute many different drugs, the types of
which can increase the prescribed range of penalties, the statute includes several
alternative elements and is therefore divisible.” Id. at 159.
As the BIA held, the same is true of the New Jersey statute at issue here. The
statute begins by criminalizing possession of any controlled substance, see N.J. Stat. Ann.
§ 2C:35-5(a)(1), but it goes on to prescribe different penalty ranges depending on the
type and quantity of the substance involved. See N.J. Stat. Ann. § 2C:35-5(b); see also
N.J. Stat. Ann. § 2C:43-6 (prescribing different penalty ranges for different degrees of
offenses). Because the different controlled substances “carry different punishments, then
under Apprendi they must be elements.” Mathis, 579 U.S. at 518.
Marsh does not acknowledge Abbott or this reasoning. Instead, he argues that
certain state-court decisions indicate that the statute is not divisible as to drug type. See
State v. Torres, 563 A.2d 1141, 1145 (N.J. Super. Ct. App. Div. 1989); see also State v.
Moore, 698 A.2d 1259, 1264 (N.J. Super. Ct. App. Div. 1997) (summarizing Torres);
State v. Edwards, 607 A.2d 1312, 1313-14 (N.J. Super. Ct. App. Div. 1992) (same). In
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Torres, the court stated that “the quantity and quality [of controlled substances] are not
elements of the [§ 2C:35-5] offense and, therefore, the State need not prove and the jury
need not find that the defendant knew the quantity or the quality of the controlled
dangerous substances involved.” Torres, 563 A.2d at 1145 (emphasis added).
But Torres preceded Apprendi and does not appear to have used the word
“element” in the sense in which Mathis used it for purposes of the categorical approach.
That point is confirmed by the preceding discussion in Torres, in which the court stated
that “the jury must find beyond a reasonable doubt the existence of critical facts required
to elevate the degree or gradation of crime.” Id. at 1144. Thus, the court continued, “we
hold that in prosecutions under N.J.S.A. 2C:35-5 the jury must find that defendant
manufactured, distributed, dispensed or possessed the relevant quantity or quality of
[controlled dangerous substances] by proof beyond a reasonable doubt.” Id. at 1145.
In sum, Torres holds that a jury must find beyond a reasonable doubt the type and
quantity of drug involved in a § 2C:35-5 offense because the type and quantity “alters the
prescribed range of penalties.” Abbott, 748 F.3d at 159. Thus, drug type is an element of
the § 2C:35-5 offense for purposes of determining divisibility under the categorical
approach. See id.; see also In re Laguerre, 28 I. & N. Dec. 437, 441 (BIA 2022) (holding
that the references to “elements” in Torres and Edwards do not resolve the divisibility of
N.J. Stat. Ann. § 2C:35-10 because, inter alia, “those State decisions did not give the term
‘elements’ the precise meaning and significance the Supreme Court did in Mathis”); State
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v. Florez, 636 A.2d 1040, 1052 (N.J. 1994) (holding that drug quantity is an element of
§ 2C:35-5).
IV.
For these reasons, we will dismiss Marsh’s petition to the extent that he seeks
relief on the basis of his allegedly defective notice to appear and will otherwise deny his
petition.2
2
Marsh raises a new argument for the first time in his Rule 28(j) letter. He argues that
his marijuana conviction cannot constitute a removable offense because, at the time of his
conviction, New Jersey’s definition of marijuana included more forms of hemp than
federal law. But see United States v. Lewis, --- F.4th ---, 2023 WL 411362 (3d Cir. Jan.
26, 2023). We lack jurisdiction to consider this argument because Marsh did not exhaust
it by raising it before the BIA. We express no opinion on whether Marsh could properly
raise this issue in a motion for reconsideration or reopening before the BIA.
8