Ramone Borrome v. Atty Gen USA

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 11-1975
_______________
RAMONE BORROME,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
_______________
On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Andrew Arthur
(No. A044-824-479)
_______________
Argued March 6, 2012
_______________
Before: SCIRICA, AMBRO,
and VAN ANTWERPEN, Circuit Judges
(Opinion filed: July 18, 2012)
Thomas M. Griffin, Esq. [ARGUED]
Surin & Griffin, P.C.
325 Chestnut Street, Suite 1305-P
Philadelphia, PA 19106
Counsel for Petitioner
Eric H. Holder, Jr.
Attorney General
Anthony C. Payne
Senior Litigation Counsel
Yedidya Cohen, Esq. [ARGUED]
Thomas W. Hussey, Esq.
Daniel I. Smulow, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
AMBRO, Circuit Judge
This immigration case hinges on the relationship
between prescription “drugs” and “controlled substances.”
The Federal Food, Drug, and Cosmetic Act (“FDCA”), 21
U.S.C. §§ 301-399d, prohibits the unlicensed wholesale
distribution of prescription “drugs” in interstate commerce.
2
See 21 U.S.C. §§ 331(t) & 353(e)(2)(A). Similarly, the
Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-904,
bans the unauthorized distribution of “controlled substances.”
See 21 U.S.C. § 841(a). Some prescription “drugs” (like
Oxycontin) are also “controlled substances,” but many (like
Lipitor, Zithromax, and thousands of other common
medications) are not. Importantly, the FDCA’s wholesale
distribution provisions make no distinction between those
prescription “drugs” that are “controlled substances” and
those that are not.
With this background, we answer two questions. First,
is a conviction for violating the FDCA’s wholesale
distribution provisions an “aggravated felony” — specifically
“illicit trafficking in a controlled substance (as defined in
section 802 of Title 21), including a drug trafficking crime (as
defined in section 924(c) of Title 18)” — under 8 U.S.C.
§§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii)? Second, are these
FDCA provisions laws “relating to a controlled substance (as
defined in Section 802 of Title 21)” under 8 U.S.C.
§ 1227(a)(2)(B)(i)? Our answer to both questions is no.
Accordingly, we grant the petition for review, reverse, and
vacate the order of removal.
I. Background
Petitioner Ramone Borrome is a citizen of the
Dominican Republic, and since August 1996 has been a
lawful permanent resident of the United States. In May 2002,
a Special Agent with the United States Food and Drug
Administration (“FDA”) filed a criminal complaint against
him and two other men in federal court. The next month, a
grand jury returned a two-count indictment.
Count One charged the three defendants with having
“unlawfully, intentionally, and knowingly engaged in the
3
unauthorized wholesale distribution in interstate commerce of
prescription drugs in violation of [21 U.S.C. §§ 331(t) and
353(e)], to wit, [Borrome, and his two co-defendants]
distributed the prescription drugs Combivir, Diflucan,
Oxycontin, Serostim, Viagra, Zerit, [and] Zyprexa without
being licensed to do so.” 1 A.R. at 102 ¶ 1. Count Two
alleged a conspiracy. Significantly, the indictment did not
charge any of the three defendants with violating the CSA.
According to his judgment of conviction, Borrome pled guilty
to Count One while Count Two was dismissed on the
Government’s motion. 2 The District Court sentenced him to
four months’ imprisonment followed by four months’ home
confinement.
In June 2010, Borrome was served with a Notice to
Appear for immigration removal purposes. He filed a motion
to terminate, which the Immigration Judge (“IJ”) denied.
In a written opinion, the IJ found Borrome removable
under 8 U.S.C. §§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii) as
an alien convicted of an aggravated felony. The IJ concluded
that the “hypothetical federal felony test” required him to
compare the FDCA’s wholesale distribution provisions to the
CSA to determine whether Borrome’s FDCA conviction is
analogous to a felony under the CSA. He noted that the CSA
makes it a felony to distribute knowingly or intentionally a
1
These drugs are prescribed for people with the human
immunodeficiency virus (Combivir, Serostim, Zerit), fungal
infections (Diflucan), severe pain (Oxycontin), schizophrenia
(Zyprexa), and erectile dysfunction (Viagra). See The
National Center for Biotechnology Information,
http://www.ncbi.nlm.nih.gov/ (last visited July 17, 2012).
2
There is no plea agreement or plea colloquy transcript in
the administrative record.
4
controlled substance. See 21 U.S.C. § 841(a)(1) & (b)(1)(C).
Turning to Borrome’s indictment, he further noted that
Borrome pled guilty to distributing Oxycontin, which
contains the Schedule II controlled substance oxycodone. See
21 C.F.R. § 1308.12(b)(1)(xiii). (None of the other six
prescription “drugs” listed in Borrome’s indictment contains
“controlled substances.”) Thus, the IJ reasoned, “because
[Borrome’s] offense involved the unauthorized distribution of
a Schedule II controlled substance,” it is an aggravated felony
under 8 U.S.C. § 1101(a)(43)(B) pursuant to the “hypothetical
federal felony test.” A.R. at 40.
The IJ also found Borrome removable under 8 U.S.C.
§ 1227(a)(2)(B)(i) as an alien convicted of violating any law
“relating to a controlled substance.” After reiterating the
reference in Borrome’s indictment to Oxycontin, the IJ
concluded that Borrome’s conviction “is plainly a violation of
a law relating to a controlled substance.” Id. at 42.
In December 2010, the IJ ordered Borrome removed to
the Dominican Republic. In March 2011, on the
Government’s motion, the Board of Immigration Appeals
(“BIA”) summarily affirmed the IJ’s decision without opinion
pursuant to 8 C.F.R. § 1003.1(e)(4). Borrome timely
petitioned for review. Before his counsel could file a motion
to stay removal, he was removed from the United States.
II. Jurisdiction and Standard of Review
The IJ had jurisdiction over Borrome’s removal
proceedings under 8 U.S.C. § 1229a. The BIA had
jurisdiction to review the IJ’s order of removal and its
underlying denial of Borrome’s motion to terminate under 8
C.F.R. §§ 1003.1(b)(3) and 1240.15.
5
We generally have jurisdiction under 8 U.S.C. § 1252to review final orders of removal from the BIA. But 8 U.S.C.
§ 1252(a)(2)(C) provides that “no court shall have jurisdiction
to review any final order of removal against an alien who is
removable” under, among other provisions, 8 U.S.C.
§ 1227(a)(2)(A)(iii) for having been convicted of an
“aggravated felony” or 8 U.S.C. § 1227(a)(2)(B)(i) for having
been convicted of violating a law “relating to a controlled
substance.” We have jurisdiction, however, to determine our
jurisdiction. In other words, we have jurisdiction to
determine whether the necessary jurisdiction-stripping facts
are present in a particular case, specifically (1) whether the
petitioner is an alien and (2) whether he has been convicted of
one of the enumerated offenses. See Papageorgiou v.
Gonzales, 413 F.3d 356, 357-58 (3d Cir. 2005); Valansi v.
Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002). Furthermore,
nothing in 8 U.S.C. § 1252(a)(2)(C) precludes our review of
questions of law presented in a petition for review. See 8
U.S.C. § 1252(a)(2)(D).
“When the BIA affirms an IJ’s decision without
opinion, we review the IJ’s decision as the final agency
determination.” Konan v. Att’y Gen., 432 F.3d 497, 500 (3d
Cir. 2005). We review de novo, without affording the
Attorney General deference under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc. 467 U.S. 837(1984), the purely legal questions of whether a violation of
particular federal criminal statutes is an “aggravated felony”
and whether those statutes are laws “relating to a controlled
substance.” See Denis v. Att’y Gen., 633 F.3d 201, 207-09
(3d Cir. 2011); Bobb. v. Att’y Gen., 458 F.3d 213, 217 n.4 (3d
Cir. 2006); Valansi, 278 F.3d at 207-08. 3
3
“We have also previously questioned whether a BIA
decision is entitled to deference when, as here, the BIA has
6
III. Analysis
A. Removability Under 8 U.S.C. §§ 1101(a)(43)(B) and
1227(a)(2)(A)(iii): Conviction for Committing an
“Aggravated Felony”
First, we must determine whether — as the IJ
concluded — Borrome’s conviction for violating the FDCA’s
wholesale distribution provisions, see 21 U.S.C. §§ 331(t) &
353(e)(2)(A), is an “aggravated felony” under 8 U.S.C.
§§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii).
“Any alien who is convicted of an aggravated felony at
any time after admission is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). With respect to a controlled substances
offense, “aggravated felony” means “illicit trafficking in a
controlled substance (as defined in section 802 of Title 21)
[the definitional section of the CSA], including a drug
trafficking crime (as defined in section 924(c) of Title 18).” 8
U.S.C. § 1101(a)(43)(B). “[T]he term ‘drug trafficking
crime’ means any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.), the Controlled
affirmed without opinion the decision of the IJ pursuant to 8
C.F.R. § 1003.1(e)(4).” Ng v. Att’y Gen., 436 F.3d 392, 395
n.4 (3d Cir. 2006); see also Smriko v. Ashcroft, 387 F.3d 279,
289 n.6 (3d Cir. 2004) (“[I]t would seem to be, at the very
least, an open question as to whether an IJ’s decision affirmed
through the streamlining process would be entitled to
Chevron deference . . . [D]eferring to the reasoning of an IJ
from which the BIA would be free to depart in other cases
would seem highly problematic.”); Singh v. Att’y Gen., 383
F.3d 144, 152 (3d Cir. 2004) (“[T]he BIA, by affirming
without opinion, gave no considered and authoritative
agency-wide interpretation of the statute . . . .”).
7
Substances Import and Export Act (21 U.S.C. 951 et seq.), or
chapter 705 of title 46,” which includes the maritime
controlled substances laws. 18 U.S.C. § 924(c)(2).
We have held, however, that in addition to a federal
felony conviction for violating any of § 924(c)(2)’s three
statutes, a state controlled substances conviction may also
qualify as an “aggravated felony” under § 1101(a)(43)(B).
When presented with such a conviction, we have applied two
independent tests to determine whether the conviction is an
“aggravated felony”: the “hypothetical federal felony” test
and the “illicit trafficking element” test. See, e.g., Evanson v.
Att’y Gen., 550 F.3d 284, 288-90 (3d Cir. 2008); Garcia v.
Att’y Gen., 462 F.3d 287, 291 (3d Cir. 2006); Gerbier v.
Holmes, 280 F.3d 297, 313 (3d Cir. 2002). “Under the
hypothetical federal felony route, we compare the offense of
conviction to the federal Controlled Substances Act to
determine if it is analogous to an offense under that Act.”
Evanson, 550 F.3d at 289. “Under the illicit trafficking
element test, a state felony drug conviction constitutes an
aggravated felony if it contains a trafficking element.” Id.When applying either the “hypothetical federal felony”
test or the “illicit trafficking element” test under
§ 1101(a)(43)(B), “and in making aggravated felony
determinations in general,” we presumptively start our
analysis by applying the “formal categorical approach.”
Garcia, 462 F.3d at 291. Under this approach, we “‘must
look only to the statutory definitions of the prior offenses,’
and may not ‘consider other evidence concerning the
defendant’s prior crimes,’ including . . . ‘the particular facts
underlying [a] conviction[].’” Id. (quoting Singh, 383 F.3d at
147-48) (quoting Taylor v. United States, 495 U.S. 575, 600
(1990))). There are two instances where we may depart from
the formal categorical approach when conducting an
aggravated felony analysis: (1) when “[c]onfronted with a
8
disjunctive statute of conviction, one in which there are
alternative elements, . . . to determine which of the alternative
elements was the actual basis for the underlying conviction,”
Evanson, 550 F.3d at 291; see also Garcia, 462 F.3d at 292;
Singh, 383 F.3d at 162-63; and (2) when “the language of a
particular subsection of § 1101(a)(43) — the aggravated
felony enumerating statute — ‘invites inquiry into the
underlying facts of the case.’” Evanson, 550 F.3d at 291-92(quoting Nijhawan v. Att’y Gen., 523 F.3d 387, 393 (3d Cir.
2008)).
i. Can the “Hypothetical Federal Felony” Test Apply
to a Conviction for Violating Federal Law?
As a preliminary matter, we must decide whether the
“hypothetical federal felony” test can apply to a conviction
for violating a federal law, like the FDCA, that is not one of
the three federal controlled substances laws enumerated in
§ 924(c)(2) and incorporated in § 1101(a)(43)(B). We hold
that it can. 4
4
The Government does not defend the IJ’s aggravated felony
analysis. Instead, it asks that we remand this case to the BIA
to give it “an opportunity to re-consider the immigration
judge’s determination that Mr. Borrome is removable as an
aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii)” if we
conclude that he is not removable under 8 U.S.C.
§ 1227(a)(2)(B)(i) for having been convicted of a law
“relating to a controlled substance.” Gov. Br. at 17.
According to the Government, a remand would give the BIA
“an opportunity to re-consider the [IJ’s] determination that
the ‘hypothetical federal felony’ approach applies in the
current situation where the statute of conviction, the FDCA,
was neither a state statute nor one of the three statutes
9
As noted, § 1101(a)(43)(B) incorporates § 924(c)(2),
which defines a “drug trafficking crime” as “any felony
punishable under” the CSA, the Controlled Substances
Import and Export Act, or the maritime controlled substances
laws. 18 U.S.C. § 924(c)(2) (emphasis added). In this
statute, “Congress referred to felonies ‘punishable under[,]’
not ‘convictions obtained under[,]’” the three enumerated
statutes. Gerbier, 280 F.3d at 204 (quoting Matter of Barrett,
20 I. & N. 171, 175 (BIA 1990)). Therefore, § 924(c)(2) does
not require an actual conviction under one of its three laws.
Id. A conviction that is hypothetically punishable as a felony
under one of § 924(c)(2)’s three statutes can also qualify as a
“drug trafficking crime.” Id. at 305, 312.
enumerated in 18 U.S.C. § 924 (c)(2).” Id. at 17 n.9. It
would also give the BIA “an opportunity to re-consider the
application of the categorical approach to the aggravated
felony determination in this case.” Id.We decline the Government’s request. When Borrome
appealed the IJ’s ruling to the BIA, the Government filed a
motion for summary affirmance, claiming (among other
things) that “the result reached in the decision under review is
correct . . . and that the issues on appeal are squarely
controlled by existing precedent and do not involve the
application of precedent to . . . novel facts.” A.R. at 19. The
BIA obliged. Now the Government is singing a different
tune. It gives no good reason why the BIA should have a
second chance to consider the issues raised on this appeal.
The BIA had the opportunity to consider the issues and, at the
Government’s insistence, chose not to do so.
10
Thus far the BIA and our Court have applied this
“hypothetical federal felony” test only to convictions for
violating state controlled substances laws. See, e.g., Evanson,
550 F.3d at 289-293; Garcia, 462 F.3d at 292-93; Gerbier,
280 F.3d at 308-11; Matter of Davis, 20 I. & N. Dec. 536, 541
(BIA 1992). Ordinarily when an alien is convicted of
violating a federal controlled substances law, he is convicted
under the CSA. In those cases, there is no need for the
hypothetical federal felony test because § 924(c)(2) makes an
actual federal felony conviction under the CSA a “drug
trafficking crime,” and thus, via § 1101(a)(43)(B), an
“aggravated felony.” But in this case the Government argues
that the FDCA’s wholesale distribution laws create the same
bases for removability as § 924(c)(2)’s three controlled
substances laws. 5
Notwithstanding the unusual circumstances of this
case, we conclude that the “hypothetical federal felony” test
can apply to a conviction for violating a federal law other
than those enumerated in § 924(c)(2). There is nothing in the
text of either § 1101(a)(43)(B) or § 924(c)(2) that limits
application of the “hypothetical federal felony” test to state
controlled substances convictions. In fact, § 1101(a)(43)
specifically indicates that the term “aggravated felony”
applies to an offense “whether in violation of Federal or State
law.” When applying the test, the key inquiry is simply
whether the alien’s conviction is hypothetically punishable as
a felony under any of the three controlled substances laws
listed in § 924(c)(2).
5
We have found no precedent for using a conviction under 21
U.S.C. §§ 331(t) and 353(e)(2)(A) as a basis for removability.
11
ii. Does Borrome’s FDCA Conviction Meet the
“Hypothetical Federal Felony” Test?
Having determined that the “hypothetical federal
felony” test can apply in this case, we turn to whether it is
met. To do so, we first consider whether the presumption in
favor of the categorical approach applies to our analysis. It is
well established that the aggravated felony enumerating
statute at issue here, § 1103(a)(43(B), does not permit
departure from the categorical approach nor does it invite
inquiry into the underlying facts of a conviction. See
Evanson, 550 F.3d. at 292; Garcia, 462 F.3d at 292. If we
were to depart from the categorical approach, we would have
to find justification for that departure in Borrome’s statutes of
conviction. We conclude, however, that the FDCA’s
wholesale distribution statutes, 21 U.S.C. §§ 331(t) and
353(e)(2)(A), do not permit departure from the formal
categorical approach because they are not “disjunctive”
statutes that define distinct offenses. They are instead a
single offense that is not categorically “punishable under” any
of § 924(c)(2)’s three controlled substances statutes.
Therefore, a conviction under these FDCA provisions fails
the “hypothetical federal felony” test.
We begin by unraveling what Borrome’s statutes of
conviction, 21 U.S.C. §§ 331(t) and 353(e), actually prohibit.
In pertinent part, § 331(t) prohibits “the distribution of drugs
in violation of section 353(e) of this title.” 6 Section
6
A “drug” means
(A) articles recognized in the
official United States
Pharmacopeia, official
Homeopathic Pharmacopeia of
12
353(e)(2)(A), in turn, provides that “[n]o person may engage
in the wholesale distribution in interstate commerce of drugs
subject to subsection (b) of this section in a State unless such
person is licensed by the State in accordance with the
guidelines issued under subparagraph (B).” “The term
‘wholesale distribution’ means distribution of drugs subject to
subsection (b) of this section to other than the consumer or
patient,” with some exceptions not relevant here. 21 U.S.C.
§ 353(e)(3)(B). Section 353(b)(1) — the relevant part of the
“subsection (b) of this section” to which §§ 353(e)(2)(A) and
353(e)(3)(B) refer — subjects to certain prescription
requirements
[a] drug intended for use by a man
which (A) because of its toxicity
or other potentiality for harmful
effect, or the method of its use, or
the United States, or official
National Formulary, or any
supplement to any of them; and
(B) articles intended for use in the
diagnosis, cure, mitigation,
treatment, or prevention of
disease in man or other animals;
and (C) articles (other than food)
intended to affect the structure or
any function of the body of man
or other animals; and (D) articles
intended for use as a component
of any article specified in clause
(A), (B), or (C).
21 U.S.C. § 321(g)(1).
13
the collateral measures necessary
to its use, is not safe for use
except under the supervision of a
practitioner licensed by law to
administer such drug; or (B) is
limited by an approved
application under section 355 of
this title to use under the
professional supervision of a
practitioner licensed by law to
administer such drug.
For simplicity, these are called prescription drugs.
Section 353(b)(1) does not provide a list of specific
drugs subject to its prescription requirements. Whether a
drug is a prescription drug by virtue of § 353(b)(1)(A) is a
question of fact for the jury. See United States v. Munoz, 430
F.3d 1357, 1367 (11th Cir. 2005). The FDA does, however,
publish in what is colloquially known as the “Orange Book” a
list of what are prescription drugs by virtue of § 353(b)(1)(B)
because they are “limited by an approved application under
section 355 of [title 21] to use under the professional
supervision of a practitioner licensed by law to administer
such drug.” See U.S. Food & Drug Admin., U.S. Dep’t
of Health & Human Servs., Approved Drug Products
with Therapeutic Equivalence Evaluations 3-1 to 3-424
(32d ed. 2012), available at
http://www.fda.gov/downloads/Drugs/DevelopmentApproval
Process/UCM071436.pdf.
The term “controlled substance” appears nowhere in
§§ 331(t) and 353(e). A “controlled substance” is defined in
the CSA to mean “a drug or other substance, or immediate
precursor, included in schedule I, II, III, IV, or V of part B of
this subchapter.” 21 U.S.C. § 802(6). A list of “controlled
14
substances” is provided in 21 U.S.C. § 812 and supplemented
by 21 C.F.R. §§ 1308.11–.15. The only way to discern an
overlap between prescription drugs and controlled substances
is to compare the list of prescription drugs in the FDA’s
Orange Book and the list of controlled substances in the CSA
and its corresponding regulations. When doing so, it is clear
that, while some prescription drugs contain chemicals that are
also regulated as “controlled substances” under the CSA,
many do not. For example, Oxycontin — one of the seven
drugs listed in Borrome’s indictment — is a prescription
drug, see Approved Drug Products with Therapeutic
Equivalence Evaluations, supra, at 3-324, and it contains the
“controlled substance” oxycodone, see 21 C.F.R.
§ 1308.12(b)(1)(xiii). In contrast, Viagra — another of the
seven drugs listed in Borrome’s indictment — is a
prescription drug, see Approved Drug Products with
Therapeutic Equivalence Evaluations at 3-371, but it does not
contain a “controlled substance.”
Although some prescription drugs do contain
controlled substances, §§ 331(t) and 353(e)(2)(A) make no
distinction between convictions involving prescriptions drugs
that do contain controlled substances and those that do not.
In other words, under §§ 331(t) and 353(e)(2)(A), a
conviction for the unlicensed wholesale distribution of Viagra
is no different than a conviction for the unlicensed wholesale
distribution of Oxycontin.
This is the pivot point for our “hypothetical federal
felony” analysis. When making aggravated felony
determinations under § 1101(a)(43)(B), “[w]e must rely only
on ‘what the convicting court must necessarily have found to
support the conviction.’” Jeune v. Att’y Gen., 476 F.3d 199,
205 (3d Cir. 2007) (quoting Steele v. Blackman, 236 F.3d
130, 135 (3d Cir. 2001)). When Borrome pled guilty to
violating the FDCA’s wholesale distribution provisions, the
15
convicting court did not necessarily have to find whether the
prescriptions drugs involved also contained controlled
substances. Such a finding would be irrelevant under
§§ 331(t) and 353(e)(2)(A) because those statutes define a
single offense, not separate and distinct offenses. Therefore,
§§ 331(t) and 353(e)(2)(A) do not permit departure from the
formal categorical approach.
When we apply the categorical approach, we see
daylight between the elements of a CSA controlled
substances distribution conviction and an FDCA prescription
drug distribution conviction. Under the CSA, it is unlawful to
“knowingly or intentionally . . . distribute . . . a controlled
substance.” 21 U.S.C. § 841(a)(1). Under the FDCA, it is
unlawful to “engage in the wholesale distribution in interstate
commerce of [prescription] drugs” without a proper license.
21 U.S.C. § 353(e)(2)(A). As our discussion above
demonstrates, prescription drugs and controlled substances do
not always go hand-in-hand. If the Government successfully
proves the elements for a conviction under 21 U.S.C.
§ 353(e)(2)(A), it does not necessarily prove the elements for
a conviction under 21 U.S.C. § 841(a)(1). Because a
conviction under the FDCA for the unlicensed wholesale
distribution of prescription drugs is not categorically
“punishable under” the CSA or § 924(c)(2)’s other controlled
substances laws, Borrome’s conviction fails the “hypothetical
federal felony test.”
iii. The “Illicit Trafficking” Element Test
Neither the Government before us, nor the IJ, contends
that Borrome’s conviction meets the “illicit trafficking
element” test. That test requires that a felony contain a
“trafficking element,” meaning “the unlawful trading or
dealing of a controlled substance.” Jeune, 476 F.3d at 202(quoting Gerbier, 280 F.3d at 305). Because, as discussed
16
above, §§ 331(t) and 353(e)(2)(A) do not permit departure
from the categorical approach and they do not require the
distribution of a controlled substance, they must necessarily
fail the “illicit trafficking element” test as well.
B. Removability Under 8 U.S.C. § 1227(a)(2)(B)(i):
Conviction for Violating Any Law “Relating to a
Controlled Substance”
Next, we consider whether Borrome was removable
under 8 U.S.C. § 1227(a)(2)(B)(i). That section of the
Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-
1537, provides that:
Any alien who at any time after
admission has been convicted of a
violation of (or a conspiracy or
attempt to violate) any law or
regulation of a State, the United
States, or a foreign country
relating to a controlled substance
(as defined in section 802 of Title
21), other than a single offense
involving possession for one’s
own use of 30 grams or less of
marijuana, is deportable.
(Emphases added.)
Unless an alien claims that the basis of his alleged
removability is “a single offense involving possession for
one’s own use of 30 grams or less of marijuana,”
§ 1227(a)(2)(B)(i) does not ask courts to scour an alien’s
indictment and sniff out a controlled substance, or otherwise
to look to the underlying facts of an alien’s conviction, to
determine whether the alien is removable. Such an inquiry
17
would be irrelevant. The important statutory phrase is
“relating to a controlled substance,” and it modifies “law or
regulation.” See Mielewczyk v. Holder, 575 F.3d 992, 994
(9th Cir. 2009); see also Mizrahi v. Gonzales, 492 F.3d 156,
159 (2d Cir. 2007) (noting that 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), which is the inadmissibility
counterpart to 8 U.S.C. § 1227(a)(2)(B)(i), “applies only if
the ‘law or regulation’ violated relates to controlled
substances”). An analysis of the laws or regulations of
conviction is required. Therefore, our task is to determine
whether the FDCA’s wholesale distribution provisions, 21
U.S.C. §§ 331(t) and 353(e)(2)(A), are laws “relating to a
controlled substance,” not (as the IJ seems to have believed)
whether the facts of Borrome’s conviction “relat[e] to a
controlled substance.” 7
The INA does not define the phrase “relating to.” But
the BIA has interpreted it expansively: “[t]he ‘relating to’
concept has a broad ordinary meaning, namely, ‘to stand in
some relation; to have bearing or concern; to pertain; refer; to
bring into association with or connection with.”’ Matter of
Espinoza, 25 I. & N. Dec. 118, 120 (BIA 2009) (quoting
Black’s Law Dictionary 1158 (5th ed. 1979) (other quotation
marks omitted)); see also Matter of Beltran, 20 I. & N. Dec.
521, 526 (BIA 1992) (“The phrase ‘relating to’ . . . has long
been construed to have broad coverage.”). The Supreme
Court, when interpreting the phrase “relating to” in the
Airline Deregulation Act, has also adopted the broad Black’s
Law Dictionary definition. See Morales v. Trans World
7
As discussed above, the FDCA wholesale distribution
provisions are non-divisible statutes that define a single
offense. Therefore, we apply the formal categorical approach
to determine whether they are laws “relating to a controlled
substance.”
18
Airlines, Inc., 504 U.S. 374, 383 (1992) (quoting Black’s Law
Dictionary 1158 (5th ed. 1979)).
We too have explained, in the context of another
provision of the INA, that the phrase “relating to” is “to be
read expansively[,] and ‘must not be strictly confined to its
narrowest meaning.’” Denis, 633 F.3d at 209 (quoting
Drakes v. Zimski, 240 F.3d 246, 249 (3d Cir. 2001)). As we
have said, “[t]he term ‘relate’ means ‘to show or establish a
logical or causal connection between.’” Bobb, 458 F.3d at
219 (quoting Webster’s Third New International Dictionary
(Unabridged) 1916 (1991)). Other Courts of Appeals have
given the phrase similarly broad readings. See Mielewczyk,
575 F.3d at 994-95 (quoting Webster’s dictionary definition
with approval); Desai v. Mukasey, 520 F.3d 762, 764 (7th Cir.
2008) (same).
As the breadth of the phrase “relating to” suggests, a
law need not require for its violation the actual involvement
of a controlled substance in order to “relat[e] to” a controlled
substance. “If Congress wanted a one-to-one correspondence
between the [laws of conviction] and the federal CSA, it
would have used a word like ‘involving’ instead of ‘relating
to,’ or it could have written the statute the way that it wrote
§ 1101(a)(43)(B) [the aggravated felony controlled
substances statute].” Desai, 520 F.3d at 766. 8
In this vein, the BIA and several of our sister Courts of
Appeals have held that a law prohibiting the possession or use
of drug paraphernalia is a law “relating to a controlled
substance.” See Matter of Espinoza, 25 I. & N. Dec. at 118;
8
For example, to achieve this correspondence, Congress
could have made removable any alien convicted of an offense
“involving a controlled substance (as defined in section 802
of Title 21)” or an offense “punishable under” the CSA.
19
see also Alvarez-Acosta v. Att’y Gen., 524 F.3d 1191, 1196
(11th Cir. 2008); Escobar Barraza v. Mukasey, 519 F.3d 388,
390-91 (7th Cir. 2008); Luu-Le v. I.N.S, 224 F.3d 911, 914-16
(9th Cir. 2000). Paraphernalia statutes relate to controlled
substances, even though they prohibit the possession of
instruments rather than controlled substances themselves,
because “the possession of an item intentionally used for
manufacturing, using, testing, or enhancing the effect of a
controlled substance necessarily pertains to a controlled
substance.” Espinoza, 25 I. & N. Dec. at 120. The Ninth
Circuit has reached this conclusion notwithstanding that the
definition of the term “drug” as used in the California drug
paraphernalia statute “does not map perfectly” with the
definition of “controlled substance” under the CSA. See Luu-
Le, 224 F.3d at 915.
Similarly, the Seventh Circuit has held that a statute
prohibiting the unlawful delivery of a “Look-Alike
Substance” is a law “relating to a controlled substance.”
Desai, 520 F.3d at 764-66. The defendant in that case was
convicted of selling chocolates purporting to contain, but not
actually containing, the hallucinogenic controlled substance
Psilocybin. Id. at 763. He was charged under Illinois law
with the unlawful delivery of a “Look-Alike Substance,”
defined as a substance which (1) by its identifying physical
characteristics “would lead a reasonable person to believe that
the substance is a controlled substance, or (2) is expressly or
impliedly represented to be a controlled substance or is
distributed under circumstances which would lead a
reasonable person to believe that the substance is a controlled
substance.” Id. at 764-65 (quoting 720 Ill. Comp. Stat.
570/102(y)). The Court explained that the state law is one
“related to” a federal controlled substance because
distributing something that would lead one to believe it
contained a federal controlled substance brings the state law
20
“into association with a federal controlled substance.” Id. at
765.
It is the fact that there is a relation
between the Look-Alike and the
controlled substance that justifies
making the distribution of the
Look-Alike illegal. To put it more
bluntly, the idea of distributing a
“Psilocybin Look-Alike” would
not even exist as a legal (or
linguistic) concept without its
connection to, or relationship
with, Psilocybin. The simulacrum
and the thing itself are always
connected.
Id. Therefore, according to the Seventh Circuit, the law
relates to a controlled substance, notwithstanding that a
“Look-Alike” itself is not a “controlled substance,” as there is
“enough of a relation to the federal controlled substance to
warrant removal from the United States for violating the
law.” Id. at 766.
The drug paraphernalia cases and the Seventh Circuit’s
decision in Desai convince us that the phrase “any law . . .
relating to a controlled substance” reaches those laws that do
not require the actual involvement of a controlled substance
for a conviction. But we are equally convinced that a law
does not automatically come within the ambit of that phrase
simply because a conviction may involve a controlled
substance. Another section of the FDCA provides a reductio
ad absurdum.
Under 21 U.S.C. § 353(d)(3)(B), “[d]rug
manufacturers or authorized distributors of record shall store
21
drug samples under conditions that will maintain their
stability, integrity, and effectiveness and will assure that the
drug samples will be free of contamination, deterioration, and
adulteration” when distributing the drug samples (unless they
use mail or common carrier). Distributing drug samples in
violation of § 353(d), or otherwise failing to comply with its
requirements, is punishable by not more than one year
imprisonment, a $1,000 fine, or both. See 21 U.S.C.
§§ 331(t) & 333(a). If we were to give the phrase “relating
to” a boundless interpretation, we might conclude that
§ 353(d)(3)(B) is a law “relating to” a controlled substance
because it regulates some chemicals that also happen to
contain “controlled substances.” It would be difficult to
accept, however, that a non-citizen authorized distributor who
fails to transport a sample of Oxycontin under the proper
temperature or in the proper container, in violation of 21
U.S.C. § 353(d)(3)(B), could be deported from the United
States simply because Oxycontin — in addition to being a
prescription “drug”— also happens to contain a “controlled
substance.” The coincidental possibility that a controlled
substance might be involved with the violation of a law or
regulation is not enough to make that law or regulation one
“relating to a controlled substance” for deportability purposes
under § 1227(a)(2)(B)(i).
Though we must interpret the phrase “relating to a
controlled substance” broadly, that phrase must have limits,
lest it be bent beyond all logical meaning. See Denis, 633
F.3d at 212 (noting that we must interpret the phrase
“‘relating to’ broadly, seeking a logical or causal
connection”). We believe that bringing the FDCA’s
wholesale distribution provisions within the scope of that
phrase would extend it beyond its breaking point for two
related reasons. First, the connection between §§ 331(t),
353(e)(2)(A), and illicit controlled substance-related activity,
is too attenuated. Second, §§ 331(t) and 353(e)(2)(A)
22
criminalize a substantial swath of conduct with no nexus to
controlled substances as defined in 21 U.S.C. § 802.
In this case there is undeniably a connection between
the FDCA wholesale distribution provisions and illicit
controlled substance-related activity: the FDCA prohibits the
unlicensed wholesale distribution of prescription “drugs,” the
CSA in turn criminalizes the unauthorized distribution of
“controlled substances,” and some prescription “drugs” are
also “controlled substances.” But that nexus, though simply
stated, is not at all evident from the face of §§ 331(t) and
353(e) and only emerges after a journey through other laws,
regulations, and governmental publications. To repeat,
§§ 331(t) and 353(e) do not use the term “controlled
substance” nor do they list specific prescription drugs that are
in fact controlled substances. To see the connection between
prescription drugs and controlled substances, we must
rummage through the 400-plus page “Prescription Drug
Product List” in the FDA’s Orange Book, see Approved Drug
Products with Therapeutic Equivalence Evaluations, supra at
3-1 to 3-424, and then hunt for a match in the roughly 100
pages of schedules of controlled substances in the Code of
Federal Regulations, see 21 C.F.R. §§ 1308.11–.15. Even if
we complete this odyssey, the fruits of our labor are for
naught. It is inconsequential under §§ 331(t) and
353(e)(2)(A) if the prescription drugs at issue are also
controlled substances “(as defined in section 802 of Title
21).” Thus, the “relationship” between §§ 331(t) and
353(e)(2)(A) and “controlled substances” is a mere
coincidence devoid of any legal significance under the
FDCA.
Moreover, the FDCA wholesale distribution
provisions, which (to repeat) define a single offense and not
distinct and separate offenses, prohibit a wide range of
behavior completely unconnected to controlled substances.
23
The statutes are blind to whether a particular prosecution
involves highly addictive prescription painkillers, or
relatively benign prescription shampoos, topical creams, or
eye drops. In this regard, we believe §§ 331(t) and
353(e)(2)(A) to be analogous to a law criminalizing the
receipt of stolen property. In Pennsylvania, for example, a
person may be convicted of theft if he intentionally receives
property knowing that it has been stolen. See, e.g., Pa. C.S.A.
§ 3925(a). Whether that stolen property includes Oxycontin
or cotton candy is inconsequential under the statute. Like
§§ 331(t) and 353(e)(2)(A), the Pennsylvania receipt-of-
stolen-property statute reaches countless activities that are
completely unconnected to controlled substances. Classifying
such a law as one “relating to a controlled substance” would
stretch too far the bounds of the phrase “relating to.”
* * * * *
We hold that (1) a conviction for violating the FDCA’s
wholesale distribution provisions, see 21 U.S.C. §§ 331(t) &
353(e)(2)(A), is not an “aggravated felony” — specifically
“illicit trafficking in a controlled substance (as defined in
section 802 of Title 21), including a drug trafficking crime (as
defined in section 924(c) of Title 18)” — under 8 U.S.C.
§§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii), and (2) the
FDCA’s wholesale distribution provisions are not laws
“relating to a controlled substance (as defined in Section 802
of Title 21)” under 8 U.S.C. § 1227(a)(2)(B)(i). 9
9
We note that our holding today should have very little effect
on the vast majority of aliens convicted in federal court for
violating federal controlled substances laws. Inexplicably,
Borrome was not charged with violating the CSA, even
though one of the seven prescription drugs listed in his
indictment was a controlled substance. If he had been
24
Accordingly, we grant the petition for review, reverse, and
vacate the order of removal.
convicted of violating the CSA, he almost certainly would be
removable.
25