Ramiro Enrique Rojas v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-1227
_____________
RAMIRO ENRIQUE ROJAS,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_____________
On Petition for Review of a Decision
and Order of the Board of Immigration Appeals
BIA No. A056 123 018
Immigration Judge: Hon. Walter Durling
_____________
Argued before Merits Panel on October 1, 2012
Reargued En Banc May 29, 3013
Before: McKEE, Chief Judge, SCIRICA, RENDELL,
AMBRO, FUENTES, SMITH, FISHER, CHAGARES,
JORDAN, HARDIMAN, GREENAWAY, Jr., VANASKIE,
SHWARTZ and GREENBERG, Circuit Judges.
1
(Opinion Filed: August 23, 2013)
Craig R. Shagin [ARGUED]
The Shagin Law Group
The Inns of St. Jude
120 South Street
Harrisburg, PA 17701
Tracey M. Hubbard
TMG Law Offices
321 Spruce Street, Suite 509
Bank Towers Building
Scranton, PA 18503
Attorneys for Petitioner
Eric H. Holder, Jr., Attorney General
Stuart F. Delery, Acting Assistant Attorney General, Civil
Division
Cindy S. Ferrier, Assistant Director
Thomas W. Hussey
Andrew J. Oliveira
Carol Federighi [ARGUED]
Timothy G. Hayes
Office of Immigration Litigation, Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
2
_____________
OPINION OF THE COURT
_____________
FUENTES, Circuit Judge, with whom McKEE, Chief Judge,
and SCIRICA, RENDELL, AMBRO, SMITH, CHAGARES,
JORDAN, HARDIMAN, GREENAWAY, Jr., VANASKIE,
and SHWARTZ, Circuit Judges join:
Petitioner Ramiro Rojas entered the United States as a
lawful permanent resident in 2003 when he was 12 years old.
Six years later, Rojas pled guilty to possessing drug
paraphernalia in violation of Pennsylvania law and was
ordered to pay a fine and court costs. The Department of
Homeland Security (the “Department”) then initiated removal
proceedings against Rojas, contending that he was removable
for having violated a law “relating to a controlled substance
(as defined in section 802 of Title 21).” 8 U.S.C.
§ 1227(a)(2)(B)(i). Rojas sought to terminate the proceedings
on the theory that the offense that constitutes the basis of
removal must involve a substance defined in section 802 of
Title 21, i.e., a federally controlled substance, but that the
Department had failed to meet such a burden in this particular
case. The immigration agencies disagreed that
§ 1227(a)(2)(B)(i) imposes that requirement and ordered
Rojas removed.
After consideration of Rojas‟s petition for review by a
three-judge panel of our Court, we sua sponte ordered that the
case be heard en banc. See Third Cir. I.O.P. 9.4 (2010). We
now grant Rojas‟s petition for review and conclude that, in a
removal proceeding under § 1227(a)(2)(B)(i), the Department
3
must show that the conviction for which it seeks to remove a
foreign national involved or was related to a federally
controlled substance. The record here was silent as to the
drug involved. Accordingly, we conclude that the
Department failed to meet its burden and remand the case for
the agency to determine whether the Department may have
another opportunity to demonstrate that Rojas‟s conviction
involved a federally controlled substance.
I. FACTUAL AND PROCEDURAL BACKGROUND
A.
Rojas is a 22-year old citizen of the Dominican
Republic who entered the United States in 2003 as a lawful
permanent resident and has resided in the country ever since.
In December 2009, Rojas pled guilty to possessing drug
paraphernalia and was assessed a fine and court costs by the
Court of Common Pleas of Lackawanna County,
Pennsylvania.1
Contending that this conviction rendered Rojas
removable under Section 237 of the Immigration and
Naturalization Act (“INA”), the Department instituted
removal proceedings against him in York, Pennsylvania.
This statute provides:
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
1
The charges were brought pursuant to 35 Pa. Stat.
Ann. § 780-113(a)(32).
4
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.
8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).2
B.
In the proceeding before the Immigration Judge (“IJ”),
the Department submitted Rojas‟s guilty plea and colloquy
and a police criminal complaint pertaining to the drug
paraphernalia case. The guilty plea and colloquy state only
that Rojas pled to “Drug Para [sic] 1 yr, 2,500 fine,” App.
185a (guilty plea); 186a (plea colloquy), but do not indicate
what paraphernalia or what substance was involved in the
crime of conviction. The police criminal complaint, on the
other hand, states that the paraphernalia consisted of “loose
cigar paper and [a] plastic baggie” with marijuana. App.
190a. However, due to serious issues regarding the reliability
of this document, see infra Part IV.C, and because the
Department argued that the fact of conviction alone rendered
Rojas removable, neither the immigration agencies nor the
2
Initially, the Department also charged Rojas as
removable on the basis of a March 31, 2009 guilty plea to one
count of possession of a small amount of marijuana (less than
30 grams) in violation of 35 Pa. Stat. Ann. § 780-113(a)(31).
Subsequently, however, the Department conceded that this
conviction did not render Rojas removable because it fell
within the less-than-30-grams escape clause of
§ 1227(a)(2)(B)(i). Accordingly, only the drug-paraphernalia
conviction is at issue.
5
parties ultimately relied on the police criminal complaint.
The record of uncontested materials before the agencies was
thus silent as to the substance involved in Rojas‟s
paraphernalia conviction.
Rojas moved to terminate the proceedings, arguing
that “[t]he plain language of [§ 1227(a)(2)(B)(i)(a)] requires
[the Department] to prove that the substance underlying an
alien‟s state-law conviction for a possessory offense is one
that is defined in Section 102 of the Controlled Substance[s]
Act [(“CSA”)].” App. 129a-30a. In this regard, Rojas noted
that Pennsylvania‟s controlled-substances schedules list drugs
that are not in the federal schedules and contended that the
official record of his conviction is silent with respect to the
substance involved.3 The parties agree that, at the time of
3
The Commonwealth includes many objects in its
definition of drug paraphernalia, including typically
innocuous items such as blenders, bowls, and balloons, see 35
Pa. Stat. Ann. § 780-102(b), but a defendant cannot be found
guilty of violating the paraphernalia law unless he used or
intended to use an object in connection with a substance
criminalized by Pennsylvania law, id. § 780-113(a)(32); see
also Commonwealth v. Torres, 617 A.2d 812, 815 (Pa. Super.
Ct. 1992) (explaining that to obtain a conviction for
possession of drug paraphernalia “the Commonwealth must
establish that the items possessed[] were used or intended to
be used with a controlled substance”). Pennsylvania law
further defines a “controlled substance” as “a drug, substance,
or immediate precursor included in Schedules I through V of
[the Pennsylvania Controlled Substance, Drug, Device, and
Cosmetic Act].” 35 Pa. Stat. Ann. § 780-102(b). Federal
law, by contrast, defines “controlled substance” in the CSA as
6
Rojas‟s conviction, Pennsylvania‟s controlled-substances
schedules contained three narcotics that were not then in the
federal schedules—“dextrorphan,” “1-(3-
trifluoromethylphenyl)piperazine,” and “propylhexedrine.”
See Resp‟t‟s Resp. to Letter Br. at 1-3, Oct. 12, 2012.
C.
The IJ denied Rojas‟s motion to terminate the
proceedings and ordered him removed to the Dominican
Republic, concluding that “a state‟s drug statute need not
align perfectly with the CSA” in order for a drug-
paraphernalia conviction to serve as the basis for removal.
App. 53a. Although the IJ reasoned that “[t]his only makes
sense” because “[i]t‟s highly doubtful Congress would intend
for an alien to escape the immigration consequences for being
convicted under a State or foreign controlled substance law
simply because the drug was not listed in the CSA,” id., he
did not address the import of his ruling on the words “as
defined in section 802 of Title 21.”
On appeal to the Board of Immigration Appeals
(“BIA”), Rojas reiterated the argument that “[t]he plain
language of Section 237(a)(2)(B)(i) of the INA requires that
in order for a conviction to make an alien removable on the
basis of a controlled substance offense, [the Department]
must prove by clear and convincing evidence that the
substance underlying an alien‟s state law conviction is one
a “drug or other substance, or immediate precursor, included
in schedule I, II, III, IV, or V of part B of this subchapter,”
but “does not include distilled spirits, wine, malt beverages,
or tobacco.” 21 U.S.C. § 802(6).
7
covered by” the CSA. App. 7a. The BIA, however, also
disagreed. The BIA did not squarely confront the issue of
whether a noncitizen could be removed for a conviction
involving a substance that is not federally controlled. Instead,
it focused on the statute‟s use of the words “relating to” and
concluded that drug-paraphernalia statutes “relate to”
controlled substances despite the lack of equivalence between
the drug schedules of a particular State and the federal
schedules. Accordingly, the BIA affirmed the order of
removal.
Rojas then filed a motion for stay of removal in this
Court, which we granted, and this petition for review of the
BIA‟s decision.
II. JURISDICTION AND STANDARD OF REVIEW
The IJ had jurisdiction over Rojas‟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 Rojas‟s motion to terminate under 8
C.F.R. §§ 1003.1(b)(3) and 1240.15.
We generally have jurisdiction under 8 U.S.C. § 1252to review final orders of removal. However, 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” for having been convicted of violating a law
“relating to a controlled substance” under 8 U.S.C.
§ 1227(a)(2)(B)(i). Although the BIA‟s order falls within this
jurisdiction-stripping provision, we retain jurisdiction to
ascertain our jurisdiction, i.e., to determine “(1) whether the
petitioner is an alien and (2) whether he has been convicted of
8
one of the enumerated offenses.” Borrome v. Att’y Gen., 687
F.3d 150, 154 (3d Cir. 2012); see also 8 U.S.C.
§ 1252(a)(2)(D) (“Nothing in subparagraph (B) or (C), or in
any other provision of this chapter . . . which limits or
eliminates judicial review, shall be construed as precluding
review of . . . questions of law raised upon a petition for
review filed with an appropriate court of appeals in accordance
with this section.”).
We need not decide the standard of review applicable
to the BIA‟s unpublished decision in this case. See De Leon-
Ochoa v. Att’y Gen., 622 F.3d 341, 348-51 & n.5 (3d Cir.
2010). We reach the same conclusion regardless of whether
we review the BIA‟s decision de novo, see, e.g., Denis v.
Att’y Gen., 633 F.3d 201, 208-09 (3d Cir. 2011) (suggesting
de novo review is proper in a case, such as this, involving a
pure legal issue as to removability), or whether we review it
under the deferential Chevron standard, see id. (recognizing
that deference to an agency‟s reasonable interpretation of
ambiguous statutory language would be appropriate).
III. THE PARTIES’ ARGUMENTS
A. Rojas’s Contentions
In his petition for review, Rojas reiterates the simple
argument he has advanced throughout these proceedings: that
the INA “quite unambiguously requires” that, “in order to
prove deportability under [section 1227(a)(2)(B)(i), the
Department] must show that Mr. Rojas‟s criminal conviction
was for possession of a substance that is . . . contained in the
federal schedules of the [CSA].” Pet‟r‟s Br. at 12, 14. He
further argues that his particular conviction does not meet this
9
requirement given that Pennsylvania criminalizes substances
that are not illegal under federal law and that the Department
did not identify the substance underlying his state-law
conviction as a federally controlled substance.
B. The Department’s View
The Department instead frames the question as
“whether a (generic) conviction under [Pennsylvania‟s
paraphernalia law] . . . constitutes „a violation of . . . any law
. . . of a State . . . relating to a controlled substance (as defined
in section 802 of Title 21).‟” Resp‟t‟s Br. at 13. The
Department contends that the answer to this question lies in
the application of the “formal categorical approach,” under
which the issue “becomes whether a generic conviction for
drug paraphernalia . . . is a close enough „fit‟ to federal
controlled substances.” Id. at 17-18. The Department further
posits that generic paraphernalia offenses do “fit,” regardless
of the controlled substance involved.
But, even if we assume that the Department is correct
that drug-paraphernalia statutes “relate to” controlled
substances, a point which Rojas concedes, see, e.g., Oral Arg.
at 9:30-9:35 (May 29, 2013), that does not address the
straightforward question of statutory interpretation we must
tackle on the effect of the parenthetical “(as defined in section
802 of Title 21)” on the Department‟s burden of proof. Does
it require the Department to show that the noncitizen‟s
conviction involved a substance that is “defined in section
802 of Title 21”?4 The Department argues that there is no
need to show what substance was involved or whether it was
4
We refer to this language as the “„as defined‟
parenthetical,” or sometimes simply as “the parenthetical.”
10
listed in the federal schedules so long as there is a “close” fit
between those schedules and Pennsylvania‟s. Resp‟t‟s Br. at
19. In other words, the Department contends that a
noncitizen may be removed for a drug offense involving a
substance that only a state criminalizes, so long as that state‟s
schedules approximate the CSA schedules.
IV. ANALYSIS
A. The Language of § 1227(a)(2)(B)(i)
1. Textual Canons of Statutory Interpretation
In cases of statutory interpretation, “we begin by
looking at the terms of the provisions [at issue] and the
„commonsense conception‟ of those terms.” Carachuri-
Rosendo v. Holder, 130 S. Ct. 2577, 2585 (2010) (citing
Lopez v. Gonzales, 549 U.S. 47, 53 (2006)). As the Supreme
Court has repeatedly emphasized, in “all” cases “[t]he inquiry
ceases if the statutory language is unambiguous.” Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 450 (2002) (internal
quotation mark omitted). Thus, to determine whether
§ 237(a)(2)(B)(i) of the INA requires that a federally
controlled substance underlie a state-law drug conviction, we
turn first to the text of the law itself, which, as noted earlier,
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
11
offense involving possession for one‟s own use
of 30 grams or less of marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).
Reading the statute as written, it is clear that the
parenthetical “(as defined in section 802 of Title 21)” is a
restrictive modifier that affects only its immediate antecedent
term, “a controlled substance.” As the Seventh Circuit has
explained, the parenthetical “can only be read to modify
„controlled substance,‟ its immediate antecedent,” and thus
“bridges the state law crimes with federal definitions of what
counts as a controlled substance.” Desai v. Mukasey, 520
F.3d 762, 766 (7th Cir. 2008); see also Disabled in Action v.
SEPTA, 539 F.3d 199, 201 n.13 (3d Cir. 2008) (explaining
that under the “„rule of the last antecedent‟ . . . [,] „a limiting
clause or phrase . . . should ordinarily be read as modifying
only the noun or phrase that it immediately follows‟” (quoting
Barnhart v. Thomas, 540 U.S. 20, 26 (2003))).5
Thus, the most straightforward reading of
§ 1227(a)(2)(B)(i) is that to establish removability the
Department must show that “a controlled substance” included
in the definition of substances in section 802 of Title 21 was
involved in the crime of conviction at issue. Parsing the
different clauses with the aid of the “last antecedent” canon
reveals that, as a whole, § 1227(a)(2)(B)(i) requires the
5
Desai interpreted 8 U.S.C. § 1182(a)(2)(A)(i)(II),
whose language is identical to § 1227(a)(2)(B)(i) in all
material respects. We analyze interchangeably provisions of
the INA containing identical language. See IBP, Inc. v.
Alvarez, 546 U.S. 21, 34 (2005).
12
Department to establish that the individual it seeks to remove
(1) is an alien (2) who at any time after entering the country
violated or attempted to violate a law relating to a controlled
substance and (3) that the controlled substance is defined as
such by federal law. Points (1) and (2) are not at issue in this
case.
A simple example further illustrates why this reading
of the statute is correct. Section 802(6) of Title 21 states that
“[t]he term „controlled substance‟ means a drug or other
substance, or immediate precursor, included in schedule I, II,
III, IV, or V of part B of this subchapter. The term does not
include distilled spirits, wine, malt beverages, or tobacco . . .
.” Putting the two provisions together, the INA effectively
renders removable noncitizens convicted under laws “relating
to a controlled substance („a drug or other substance . . .
included in schedule I, II, III, IV, or V . . . [,] not includ[ing]
spirits, wine, malt beverages, or tobacco‟).” Suppose, then,
that Pennsylvania—which has its own controlled-substances
schedules to which it is free to add substances not in the
federal lists—chose to include tobacco in its schedules, and
that Rojas was convicted of possessing tobacco paraphernalia.
Given the express exclusion of tobacco from the federal list
of controlled substances, it would be a complete anomaly to
then place Rojas in removal proceedings for possessing
tobacco paraphernalia. Indeed, such a result would violate
the cardinal principle that we do not cripple statutes by
rendering words therein superfluous, as the Department‟s
reading would have us do to the “as defined” parenthetical.
See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001) (“It is
our duty to give effect, if possible, to every clause and word
of a statute.” (quoting United States v. Menasche, 348 U.S.
528, 538-39 (1955) (internal quotation marks omitted));
13
Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir.
1997) (“We strive to avoid a result that would render
statutory language superfluous, meaningless, or irrelevant.”).
2. Relevant Case Law
We find further support for this construction in the
decision of the Ninth Circuit—the first Court of Appeals to
have squarely addressed the meaning of the “as defined”
parenthetical—which concluded as we do that the language
means that the Department must establish that a state-law
drug conviction involved a federally controlled substance.
Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007)
abrogation on other grounds recognized by Cardozo-Arias v.
Holder, 495 F. App‟x 790, 792 n.1 (9th Cir. 2012). In that
case, the Ninth Circuit reasoned that to hold otherwise would
“read out of the statute the explicit reference to Section [8]02
of [Title 21].” Id. at 1077 n.5. It therefore reversed the BIA‟s
order of removability because the Department had not
introduced evidence to show what substance Ruiz-Vidal had
been convicted of possessing. Id. at 1080; see also Cheuk
Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010)
(applying Ruiz-Vidal to a conviction under a California
statute criminalizing transportation of controlled substances,
where the Department failed to establish whether a federally
controlled substance was involved). The Seventh Circuit
agreed, noting that the “as defined” parenthetical means that
if “a state decides to outlaw the distribution of jelly beans,
then it would have no effect on one‟s immigration status to
deal jelly beans, because it is not related to a controlled
substance listed in the federal CSA.” Desai, 520 F.3d at 766.
This case follows from the holdings in Ruiz-Vidal and S-Yong
and from the reasoning in Desai.
14
3. The Views of the Department and the BIA in
Other Contexts
In addition to being supported by the statute‟s plain
text and persuasive case law, our proposed reading of the
statute has been accepted by the BIA. Almost fifty years ago,
the BIA terminated removal proceedings against an alien
convicted under California law of selling a “narcotic” because
although the “California law relate[d] to a narcotic or
marihuana violation[,] . . . the record being silent as to the
narcotic involved . . . [,] it [was] possible that the conviction
involved a substance (such as peyote) which is a narcotic
under California law but [wa]s not defined as a narcotic drug
under federal law.” Matter of Paulus, 11 I. & N. Dec. 274,
275 (BIA 1965). Analyzing a predecessor to
§ 1227(a)(2)(B)(i), the BIA held that “only a conviction for
illicit possession of . . . a substance which is defined as a
narcotic drug under federal laws can be the basis for
deportation proceedings.” Id. at 276. The BIA here
completely ignored Paulus.
This reading has also been advocated by the
Department itself. In Ruiz-Vidal, the Department conceded
that it was required to show that the conviction at issue was
for possession of a substance “not only listed in the California
statute . . . but also contained in . . . the Controlled Substances
Act.” Ruiz-Vidal, 473 F.3d at 1077 n.3. Similarly, the
Department has argued to this Court that the parenthetical
means that the controlled substance “must be one defined
under [the CSA]” in order for the state conviction to satisfy
the INA‟s provisions. Br. for Resp‟t at 19, Gul v. Att’y Gen.,
385 F. App‟x 241 (3d Cir. 2009) (No. 09-2675), 2009 WL
8584678, at *19. And, in this very case, while focused on
15
whether paraphernalia statutes “relate to” controlled
substances, the Department perhaps unwittingly conceded
that Rojas‟s reading of § 1227(a)(2)(B)(i) is correct, noting,
for example, that the parenthetical “is restrictive, [and]
modifies the immediate antecedent—the term „controlled
substance,‟” Resp‟t‟s Br. at 16, and that the law requires that
the “statute of conviction „relate to‟ federal controlled
substances,” id. at 21 (emphasis added). Thus, the
Department‟s resistance to the notion that a federally
controlled substance must be involved is, to say the least,
perplexing.
Unfazed, the Department urges us not to follow Ruiz-
Vidal or Paulus, relying primarily on Matter of Espinoza, 25
I. & N. Dec. 118 (BIA 2009), for the proposition that the
holding of those cases should be limited to convictions that
involve actual possession of controlled substances. We are
not persuaded.
Espinoza involved an individual who was subject to,
but sought cancellation of, removal, which could be granted
upon a showing that the individual had not been convicted of
any law “relating to a controlled substance (as defined in
section 802 of Title 21).” 8 U.S.C. § 1182(a)(2)(A)(i)(II).
Despite his conviction for possessing a marijuana pipe,
Espinoza argued that the Department could not “support a
finding of inadmissibility unless the paraphernalia was tied to
a specific, federally controlled substance.” Espinoza, 25 I. &
N. Dec. at 121. The BIA disagreed, noting both that the
conviction was for “possessing a marijuana pipe, [so] th[e]
argument ha[d] little relevance,” and that because it was
Espinoza‟s burden to prove eligibility for adjustment of
status, he had the “burden to resolve any issue that might
16
arise in his case by virtue of an asymmetry between the
Federal and State . . . schedules.” Id. These two grounds
alone factually and legally distinguish Espinoza.
But, to the extent that Espinoza intended to limit the
Department‟s obligation to establish a federally controlled
substance only to those proceedings based on drug
“possessory” offenses (or to the extent that the Department
reads Espinoza in that way), we disagree with the illogical
and atextual interpretation of § 1227(a)(2)(B)(i) that this view
compels. We cannot surmise from the text any support for
the proposition that the Department‟s burden of proof
changes depending on the type of drug offense involved in
the removal proceeding, and, indeed, the statute speaks of
“any” law. Moreover, common sense indicates that there
should be no difference—we cannot square the text of the law
with a world in which a noncitizen may be deported for using
“1-(3-trifluoromethylpheny)piperazine” paraphernalia, but
not for “possessing” the drug itself. And there is nothing in
Espinoza, let alone in § 1227(a)(2)(B)(i), to help us logically
determine which offenses are “possessory” and which are not.
Espinoza‟s purported limitation of Ruiz-Vidal to “possessory”
offenses has been undermined by subsequent decisions
applying that case to crimes that may or may not require
actual possession of drugs. See, e.g., Mielewczyk v. Holder,
575 F.3d 992, 995-96 (9th Cir. 2009) (involving the crime of
offering to transport drugs); S-Yong, 600 F.3d at 1031, 1034(addressing conviction for transporting and attempting to
transport controlled substances). The better view is that the
parenthetical captures all controlled-substances offenses—
any offense involving a particular drug (possessing it,
17
transporting it, using paraphernalia in connection with it, etc.)
is removable if the drug is on the federal list.6
4. The Department’s Alternative Reading of the
Parenthetical
The Department offers one last alternative, urging that
because the statute speaks of a conviction “relating to a
controlled substance (as defined in section 802 of Title 21),”
8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added), all that is
6
In Espinoza, the BIA also rejected the notion that a
paraphernalia conviction cannot lead to removal because
there is no federal drug-paraphernalia statute. The BIA
reasoned that the “as defined” parenthetical “modifies only its
immediate antecedent (i.e., „controlled substance‟), not the
whole text of the section” and therefore does not impose a
requirement that the crime of conviction “relate to” a
federally defined crime. Espinoza, 25 I. & N. Dec. at 122
(citing Escobar Barraza v. Mukasey, 519 F.3d 388, 390 (7th
Cir. 2008)). We agree, but are at a loss as to why, given its
view that the parenthetical modifies the immediate antecedent
term, the BIA does not agree that the controlled substance at
issue must be included in the federal schedules. These
contradictory lines of reasoning stand in stark contrast to the
Ninth and Seventh Circuits‟ more internally consistent views.
Both Circuits recognize, as per Luu-Le v. INS, 224 F.3d 911(9th Cir. 2000), and Escobar Barraza, respectively, that
paraphernalia statutes “relate to” controlled substances
despite the existence of the “as defined” parenthetical. At the
same time, both recognize, as per Ruiz-Vidal and Desai, that a
conviction must involve a federally controlled drug because
of the parenthetical.
18
required is that the substance of conviction “relate to” a
federally controlled substance, or that a particular State‟s
schedules as a whole “relate to” the CSA. Stated differently,
under this view the statute requires establishing only that the
State schedules and/or the particular substance involved are
sufficiently “close” to the federal substances if the match is
not “exact.” Resp‟t‟s Br. at 20; see also Oral Arg. 18:00-
18:15 (Oct. 5, 2012) (arguing that the parenthetical only
requires that the substances in the State schedules are related
“in kind” to those in the federal schedules). This theory
presumably disposes of any requirement that the substance of
conviction be established when the offense of removal is a
drug crime of any state or territory in our Circuit, to the extent
we believe that all of a particular jurisdiction‟s controlled
substances, or its schedules as a whole, are “close to” or
“relate to” the federal lists. But this reading of
§ 1227(a)(2)(B)(i) does not comport with plain grammar and
leads to results Congress could not have intended.
In essence, the Department‟s proposal is to re-read the
statute to say that removable convictions are those “relating to
a controlled substance (relating closely (or in kind) to a
substance defined in section 802 of Title 21).” We reject this
artificial redraft—we will not construe “relating to” to modify
more than one clause and we will not arbitrarily insert into the
text the words “close to” or “in kind.” Cf. Lopez, 549 U.S. at
56 (rejecting a convoluted rewriting of a statute from “a
felony punishable under the CSA” to “a felony punishable
under the CSA whether or not as a felony”).
Moreover, the “close to” test would require
immigration agencies and federal courts to become lab
experts capable of determining whether any substance
19
criminalized by any given State, such as 1-(3-
trifluoromethylphenyl)piperazine, is “close to” or “relates to”
any of the hundreds of substances listed in the CSA
schedules. Yet we are left to our own devices to ascertain
the precise contours of this new “close to” test and whether it
turns on chemical, medicinal, physical, or other as-of-yet-
unknown properties of drugs.7
And the “close to” test would fare no better if applied
to the totality of a particular state‟s schedules—i.e., if the
import of the argument were to permit removal without
showing that a particular federal drug was involved so long as
a state‟s schedules are, as a whole, sufficiently “close to” the
federal schedules, or if a “vast number” or “many” of the
state‟s substances appear in the CSA, see Dissenting Op. at
11. It is left unexplained just how many substances a state
7
The dissent dismisses this concern by referring to jelly
beans as a “harmless product” and by noting that if a state
included tobacco in its definition of controlled substances we
would be spared having to make these difficult
determinations by a Supremacy or Commerce Clause
challenge to the problematic state statute. See Dissenting Op.
at 15 note 3. But jelly beans and tobacco are merely two
poignant examples. States have in actuality criminalized
substances at various times that are not as easily dismissed as
jelly beans, such as peyote. See Paulus 11 I. & N. Dec. at
275. And, like the Department, our dissenting colleagues
offer no doctrinal way to distinguish between removing Rojas
today, despite the lack of a federally controlled substance, and
not removing individuals convicted of possessing non-
federally controlled substances tomorrow.
20
would have to include in its lists that are not in the federal
lists before its drug-related offenses would no longer qualify
as removable offenses, or whether inclusion of a particularly
odd substance (such as jelly beans or large sugary beverages)
would suffice. We doubt Congress included a specific
reference to the federal schedules only to have removability
turn on these unworkable inquiries.8
Finally, the Department‟s reading would result in a
patchwork of removability rules dependent on the whims of
the legislatures of the fifty states—effectively permitting
them to control who may remain in the country via their
controlled-substances schedules—not to mention the laws of
all foreign nations, which may ban substances that are
commonplace in the United States, such as poppy seeds.
Although Congress has, on occasion, allowed non-uniformity
by tying immigration consequences to state law, here the
explicit reference to section 802 of Title 21 shows that
Congress has “pegged the immigration statutes to the
classifications Congress itself chose. . . . [I]t is just not
plausible that Congress meant to authorize a State to overrule
8
This proposed reading of § 1227(a)(2)(B)(i), that
“relating to” modifies both “controlled substances” as well as
the parenthetical, is also at odds with the Department and the
BIA‟s view that the parenthetical may only modify the
immediate antecedent term “controlled substance” but not
“relating to.” See supra note 6. What is good for the goose
must be good for the gander—either the clauses of the text
modify more than one term or they do not. We reject the
Department‟s view of the shifting transitive powers of the
different clauses of § 1227(a)(2)(B)(i).
21
its judgment about the consequences of . . . offenses to which
its immigration law expressly refers.” Lopez, 549 U.S. at 58-
59; see also Desai, 520 F.3d at 766 (reasoning that because of
the parenthetical, states do not have “free rein to define their
criminal laws in a manner that would allow them to . . .
determine who is permitted to enter and live in the country”);
cf. Lozano v. City of Hazelton, __ F.3d __, No. 07-3531, 2013
WL 3855549, at *13 (3d Cir. July 26, 2013) (highlighting
“the important national interests that are implicated when
local governments attempt to regulate immigration and the
concomitant need to leave such regulation in the hands of the
federal government”).9
***
For these reasons, we hold that the text of
§ 1227(a)(2)(B)(i) requires the Department to establish that a
foreign national‟s conviction is both (1) under a law relating
to a controlled substance, and (2) involved or implicated a
drug defined in section 802 of Title 21. This reading gives
effect to all words of the statute and, in our view, most
comports with Congress‟s intent in drafting the law. Because
the undisputed documents before the IJ contain no such
9
We agree with the Department that Congress may
choose to remove noncitizens who violate the controlled-
substances laws of other nations or of the states, even if those
jurisdictions choose to criminalize substances different than
Congress chose. See Oral Arg. at 54:54-55:10 (May 29,
2013). But, if it wishes to do so, Congress must excise the
explicit reference to federally controlled substances from the
statute.
22
showing, the record is defective and the order of removal is
invalid.
B. Other Interpretative Mechanisms to Construe
§ 1227(a)(2)(B)(i)
Of course, the rule of the last antecedent, like most
canons of construction, is not absolute. Barnhart, 540 U.S. at
26. But the Department offers no “other indicia of meaning”
from the text to convince us not to follow it. Id. Instead,
following its focus on “relating to” rather than the “as
defined” parenthetical, the Department posits that the answer
to the question of whether a drug-paraphernalia statute
“relates to” controlled substances is provided by the
analytical doctrine known as the “formal categorical
approach.” See, e.g., Resp‟t‟s Br. at 13 (citing Singh v.
Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004)). The Department
contends that the cases applying that doctrine also
demonstrate that the “as defined” parenthetical is of little
consequence and that a conviction for a non-federally
controlled substance may result in removal. Rojas counters
that a variant known as the “modified categorical approach”
should govern. The parties also spar about whether cases
construing the words “relating to” in statutes such as
§ 1227(a)(2)(B)(i) demonstrate that the parenthetical is
irrelevant.
We address these contentions in some detail because
they ignore long-standing rules governing when such
approaches may be applied and reflect a fundamental
misunderstanding of those rules as delineated by the Supreme
Court and by our Court.
23
1. The Formal Categorical and Modified
Categorical Approaches
It is well-established that the categorical approach 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.
The archetypical case is Taylor v. United States, where the
issue was whether a past state burglary conviction constituted
a “burglary” as that term is used in the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(1) (“ACCA”), thus
triggering certain sentencing enhancements under the ACCA.
495 U.S. 575, 578-79 (1990). The Supreme Court held that
the proper method to answer the question is the categorical
approach, which requires a court to determine only whether a
conviction under the state statute “necessarily” contained all
of the elements of the federal baseline offense, “burglary,” by
comparing the elements of the state and federal crimes.
Taylor, 495 U.S. at 601-02. The Court has explained that in
performing that comparison, the court must assume that the
state law conviction “rested upon [no]thing more than the
least of the[] acts” criminalized by state law. See Johnson v.
United States, 559 U.S. 133, 136-37 (2010). The
methodology may also be used to determine whether a past
offense “fits” a crime listed in the INA. See, e.g., Gonzales v.
Dueñas-Alvarez, 549 U.S. 183, 185-87 (2007) (determining
whether a past conviction constitutes a “theft offense”).
It is also a fundamental rule that courts applying the
categorical approach may not delve into the particular facts of
a conviction to ascertain if there is a proper fit. See Taylor,
495 U.S. at 599-602. The Department urges that this rule
disposes of any requirement that a federally controlled
24
substance must be involved in any given conviction for
purposes of determining whether that conviction qualifies as a
removable offense under § 1227(a)(2)(B)(i).
With this line of reasoning, the Department seems to
imply that the categorical approach is the proper rubric of
analysis every time we are required to determine whether a
conviction fits into the definition of a crime referenced in the
INA, or at the very least whether it fits into
§ 1227(a)(2)(B)(i). This view is deeply flawed. Recently, the
Supreme Court explained that the categorical approach
applies when one must compare the defendant‟s or the
noncitizen‟s conviction to a “generic crime” such as
“burglary” or “theft.” Moncrieffe v. Holder, 133 S. Ct. 1678,
1684-85 (2013) (citing Nijhawan v. Holder, 557 U.S. 29, 37
(2009), aff’g 523 F.3d 387 (3d Cir. 2008)). We made a
similar point almost ten years ago, noting that we had
generally applied the element-by-element comparison of the
categorical approach in “cases interpreting relatively unitary
categorical concepts—like „forgery‟ . . . „burglary‟ . . . or
„crime of violence.‟” Singh, 383 F.3d at 161.10
But not one of these cases involves a determination of
whether a state offense is one “relating to” controlled
10
In the years since Singh, we have consistently applied
the categorical approach to see whether a state crime fits into
generic, unitary crimes such as “serious drug offenses,”
United States v. Tucker, 703 F.3d 205, 208-09 (3d Cir. 2012);
a “drug trafficking crime,” Thomas v. Att’y Gen., 625 F.3d
134, 142-44 (3d Cir. 2010); or the “sexual abuse of a minor,”
Restrepo v. Att’y Gen., 617 F.3d 787, 791 (3d Cir. 2010).
25
substances (or “relating to” anything else), and, needless to
say, none involves an interpretation of the meaning of the “as
defined” parenthetical. Thus, it is unsurprising that despite its
repeated invocation of the categorical approach to analyze
§ 1227(a)(2)(B)(i), the Department cannot maintain that the
law—which refers broadly to crimes “relating to” controlled
substances—lists any discrete offense against which
Pennsylvania‟s paraphernalia statute can be compared.
Accordingly, even assuming that the question presented in
this case was whether drug-paraphernalia statutes “relat[e] to”
controlled substances, the formal categorical approach would
not apply.
It is true that the categorical approach permits a slight
deviation, known as the modified categorical approach, from
the baseline rule that an inquiring court may not look into the
particular circumstances of a conviction. When a statute of
conviction lists elements in the alternative, some of which fit
the federal definition and some of which do not, a court is
permitted “to consult a limited class of documents . . . to
determine which alternative formed the basis of the
defendant‟s prior conviction.” Descamps v. United States,
133 S. Ct. 2276, 2281 (2013).11
11
The basic example is when a state defines “burglary”
as “breaking and entering” into a vehicle or a dwelling.
Because only breaking into a dwelling meets the generic
federal definition, the statute of conviction does not
categorically fit within the federal crime, but the modified
categorical approach may provide an answer. See, e.g.,
Taylor, 495 U.S. at 599-602 (addressing this example).
Contrary to the dissent‟s admonition, our decision in Evanson
v. Attorney General does not support the proposition that we
26
But it is simply not the case that the modified
categorical approach fills the void, or provides a blanket
invitation for a court to inquire into the facts underlying a
conviction every time the categorical approach does not
provide an answer. As the Supreme Court recently explained,
the methodology is simply “a mechanism for making th[e]
comparison [required by the formal categorical approach]
when a[n underlying] statute lists multiple, alternative
elements, and so effectively creates „several different . . .
crimes.‟” Id. at 2285 (last alteration in original) (quoting
Nijhawan, 557 U.S. at 41).12 Indeed, given that the modified
categorical approach is merely a “tool for implementing the
“could” apply the categorical approach in this case. See
Dissenting Op. at 5 (quoting 550 F.3d 284, 290 (3d Cir.
2008)). In Evanson, we applied the categorical (and modified
categorical) approach to determine whether a conviction fit
another generic, unitary crime, namely, an “aggravated
felony” under the INA. Evanson, 550 F.3d at 291-92.
12
Descamps construed a provision of the ACCA, not the
INA. The BIA has stated its view that it may apply the
modified categorical approach more broadly in the context of
the INA than whatever is mandated by courts construing the
ACCA. See Matter of Lanferman, 25 I. & N. Dec. 721, 728
(BIA 2012). But we have rejected any notion that the
analysis is different depending on whether the federal
baseline statute resides in the INA or the ACCA. See, e.g.,
Jean-Louis v. Att’y Gen., 582 F.3d 462, 478-80 (3d Cir.
2009). And the Supreme Court‟s decisions in Moncrieffe and
Descamps, both analyzing interchangeably INA and ACCA
cases, make clear that Lanferman has been abrogated.
27
categorical approach,” id. at 2284, then, by definition, it has
nothing to say in cases—such as this one—where the
categorical approach itself is irrelevant. Moreover,
Pennsylvania‟s paraphernalia statute is not phrased in the
disjunctive, with some elements satisfying the federal
baseline offense and some not—it does not “effectively
create[] „several different crimes‟”—so one could not employ
the modified categorical approach in any event. Id. at 2285.13
Thus, the modified categorical approach does not
apply in this case. Here, we derive the obligation to establish
the existence of a federally controlled substance simply from
the text of the law. Our holding is not an invitation to inquire
into or relitigate the circumstances underlying every drug
conviction—the existence of a federally controlled substance
will be established in the same way as the existence of the
conviction itself is normally established.14
13
Courts are permitted to depart from the categorical
approach and “relating to” cases entirely “when the terms of
the statute invite inquiry into the facts underlying the
conviction at issue.” Singh, 383 F.3d at 161; see, e.g.,
Nijhawan, 523 F.3d at 392-93 (determining whether a
conviction constitutes an offense that “involves fraud or
deceit in which the loss . . . exceeds $10,000” (quoting 8
U.S.C. § 1101(a)(43)(M)(i)). There is no contention that the
removability conduct at issue in § 1227(a)(2)(B)(i) implicates
the rationale of cases like Nijhawan.
14
Were we to insist on fitting the question presented here
into the categorical approach, odd results would follow. Even
if we could somehow subject Pennsylvania‟s drug-
paraphernalia statute to an element-by-element comparison
28
2. Cases Involving “Relating to” Statutes
In addition to cases that apply the formal/modified
categorical approach, a parallel but distinct line of cases has
developed to address situations in which the relevant federal
conduct is presented not as a generic, unitary crime but as a
conviction “relating to” other crimes or objects. In these
cases, courts do not require a strict element-by-element match
between the offense of conviction and the federal baseline,
the hallmark of the categorical approach. Instead, the inquiry
focuses on the nature of the defendant‟s conviction, and
whether it “stand[s] in relation,” “pertain[s],” has “bearing of
concern,” or “refer[s]” to the object or crime of comparison.
Desai, 520 F.3d at 764 (quoting Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 384 (1992)).
We used this form of analysis, for example, in Denis v.
Attorney General to determine whether a state conviction for
tampering with physical evidence constituted a crime
against some federal offense, we would be forced to conclude
that the drug-paraphernalia statute “sweeps more broadly”
than federal drug statutes do, Descamps, 133 S. Ct. at 2283,
because Pennsylvania criminalizes substances that are not
illegal under federal law. Under the categorical approach,
then, the “inquiry [would be] over” and no examination of the
underlying conviction possible. Id. at 2286. Under this
improbable application of the categorical approach, many
drug offenses under Pennsylvania law could never constitute
a removable offense, unless, say, they contain as an element a
specific substance that is federally controlled. This plainly
incorrect result demonstrates that the categorical approach is
a red herring here.
29
“relating to obstruction of justice.” 633 F.3d 201, 204 (3d
Cir. 2011). We held that it did, not because of any “precise
degree of similarity between the elements of Denis‟s offense
and a listed federal crime,” but rather based on the
“interrelationship” between the state statute and “obstruction
of justice.” Id. at 212; see also Yong Wong Park v. Att’y
Gen., 472 F.3d 66, 72 (3d Cir. 2006) (holding that whether a
statute of conviction is one “relating to counterfeiting”
depends on whether it “seeks to discourage the act of
counterfeiting” (citation and internal alteration omitted)).15
To be sure, this line of cases would provide the proper
rubric of analysis if the question at issue was whether
paraphernalia statutes “relate to” controlled substances, which
neither party contests. But the Department asks us to
15
Indeed, many cases deciding whether a statute “relates
to” drugs involve statutes of conviction that have no exact
federal analog, making impossible the comparison of
elements that the categorical approach requires. See, e.g.,
Luu-Le, 224 F.3d at 915 (concluding that a state paraphernalia
statute “relates to” controlled substances not on the basis of
the categorical approach, but rather because “[t]he statute
makes abundantly clear that an object is not drug
paraphernalia unless it is in some way linked to drugs”);
Desai, 520 F.3d at 765 (holding that a state statute
criminalizing the sale of drug look-alike substances, a law
with no federal-law analog, “relates to” controlled substances
not based on a comparison of elements, but because a
conviction for a drug look-alike substance “would not even
exist as a legal (or linguistic) concept without its connection”
to drugs).
30
extrapolate the “relating to” cases to conclude that so long as
a state‟s controlled-substances schedules “show[] substantial
(and obviously intentional) overlap” with the federal
schedules, a drug-paraphernalia conviction satisfies the
removability provision of § 1227(a)(2)(B)(i) even if the actual
substance involved is not evident from the record of
conviction. Resp‟t‟s 28(j) Letter at 1-2, Aug. 22, 2012. This
we decline to do. The proposed use of the “relating to” cases
is merely a repackaged version of the argument that “relating
to” modifies both “controlled substance” as well as the “as
defined” parenthetical, a reading we have already rejected. In
other words, the invitation to read “relating to” as modifying
the parenthetical is but a thinly-veiled suggestion that we
permit those words to excise the parenthetical entirely. Supra
Parts IV.A.1, 4.
3. Our Decision in Borrome v. Attorney General
The Department and the dissent also rely extensively
on Borrome v. Attorney General for the idea that the
substance involved in Rojas‟s offense is irrelevant, but that
case did not address the effect of the “as defined”
parenthetical and is thus not controlling here. If anything,
Borrome most clearly demonstrates the differences between
the categorical approach and the “relating to” line of cases.
In that sense, far from “repudiating” Borrome, Dissenting Op.
at 15, we embrace it.
Borrome was convicted under the Food, Drug, and
Cosmetic Act (“FDCA”) of engaging in the unauthorized
distribution of certain prescription drugs, and we had to
determine whether the FDCA conviction was a “drug
trafficking crime,” and/or whether the FDCA statute was one
31
“relating to” controlled substances under § 1227(a)(2)(B)(i).
687 F.3d at 152-53. In answering the first question, we
applied the categorical approach to determine whether the
elements of the FDCA conviction corresponded to the
elements of a generic “drug trafficking crime.” See id. at
155-59. In answering the second question, we relied on the
“broad ordinary meaning” of the words “relating to” and
focused on the “range of behavior” targeted by the FDCA.
Id. at 160-62.16 Borrome thus aptly illustrates our application
of the first question we must ask under § 1227(a)(2)(B)(i):
whether a statute of conviction criminalizes conduct “relating
to” controlled substances. See also Luu-Le, 224 F.3d at 915(describing a law that relates to controlled substances as one
16
While in Borrome we also referenced the categorical
approach when analyzing this second question, we did so in
rejecting the IJ‟s consideration of the particular facts of the
petitioner‟s underlying conviction. See 687 F.3d at 159-60 &
n.7. But in no way does Borrome support the Department‟s
contention that the categorical approach is the proper rubric
of analysis in all of these cases. Indeed, while we also made
reference to the categorical approach in Denis, in that case we
in reality engaged in traditional “relating to” analysis, as
indicated earlier at Part IV.B.2. See Denis, 633 F.3d at 211-
12 (explaining that “[t]o give effect to Congress‟s choice of
language, a categorical matching of the elements of the
offense of conviction with the elements of a federal law
cannot be the sole test for determining whether a crime of
conviction „relates to‟ a generic federal offense,” and
concluding that an offense for tampering with evidence
“bears a close resemblance to . . . obstruction of justice” and
thus constituted a crime “relating to obstruction of justice”).
32
that “is plainly intended to criminalize behavior involving the
production or use of drugs”). But, because we concluded that
the FDCA was not a law “relating to” a controlled substance,
we stated that the substance underlying the conviction in
Borrome was irrelevant. In other words, we did not have
occasion in Borrome to address the meaning of the “as
defined” parenthetical.17
Moreover, in concluding that the FDCA conviction did
not relate to the CSA, we noted in Borrome that the FDCA
prohibits “countless activities that are completely
unconnected to controlled substances” and also that the
connection between the substances listed in the CSA and
those at issue in the FDCA was “not at all evident from the
face of [the statute] and only emerges after a journey through
other laws.” 687 F.3d at 162. The reference to the two
schedules showed simply that the one common link between
the FDCA and the CSA, the overlap in some of the
substances at issue under each, was itself so attenuated that it
did not warrant finding that FDCA offenses “relate to” CSA
offenses. Id. at 161-63. Thus, contrary to the Department
and the dissent‟s admonitions, see Dissenting Op. at 6-11, 15-
16, Borrome does not stand for the idea that the level of
correspondence between the federal schedules and a state‟s
schedules with respect to its drug laws is outcome-
determinative.
17
Similarly, despite the Department‟s extensive reliance
on Luu-Le, Luu-Le only addressed whether a drug
paraphernalia statute was a law “relating to” a controlled
substance, and did not reach the “as defined” parenthetical.
224 F.3d at 915.
33
***
The bottom line with respect to the foregoing analysis
is that not one of the categorical approach cases addresses the
effect of the “as defined” parenthetical of § 1227(a)(2)(B)(i)
on the Department‟s burden of proof. Instead, they dictate
only how exact the match between an underlying statute of
conviction and a federal baseline offense has to be in order to
satisfy federal law. The same is true of a common theme that
unites the categorical approach and the “relating to” cases—
the rule that the existence of a conviction is established not by
reference to the underlying facts of a case but by reference to
the underlying statute. Although the Department and the
dissent seek to import that rule into this case, the rule merely
explains how the Department must meet its burden, not what
that burden is. There is simply no doctrinal basis to transform
any of these rules into a mechanism to lessen the
Department‟s burden altogether or to use them to read a
clause entirely out of the removability statute. And the
existence of these diverse rules, applicable depending on how
the INA phrases the baseline offense, highlights an important
point: the text of the law is always paramount. The wording
of the baseline crime always dictates the proper method of
analysis. We ought not turn that principle on its head by
letting the different methodologies contort the words of the
statute.18
18
We decline to follow Mellouli v. Holder, 719 F.3d 995(8th Cir. 2013), on which the Department relies, because it
wrongly assumed that the “categorical approach” is the
proper focus of the “relating to” inquiry. Id. at 1000-01.
Moreover, although the Mellouli petitioner conceded that
34
C. Rojas’s Remedy
We now address the proper remedy—whether to
reverse the BIA‟s ruling or to remand the case to the BIA so
that it may determine in the first instance whether to further
remand to the IJ to give the Department a proverbial second
bite at the apple.
The Department asks that, if we determine that
establishing the involvement of a federally controlled drug
was required, we remand the case so that it may make the
adequate showing under the “modified categorical approach.”
See Resp‟t‟s Br. at 13 n.11. But we have already concluded
that application of the categorical approach would, rather than
counseling a remand, mean that “the inquiry is over.”
Descamps, 133 S. Ct. at 2286; see also supra note 14.
Nevertheless, because the Department purports to be able to
make the required showing in the same way it established the
existence of the criminal conviction in the first place, we will
remand the matter to the BIA. Our remand is solely so that
the BIA may determine whether it is appropriate to further
remand the case to the IJ, to permit the Department to make
the required showing before that agency.
paraphernalia statutes generally “relat[e] to” controlled
substances, id. at 999, the Court nevertheless resorted to cases
dealing precisely with that question to solve the additional
issue of whether the Department must establish that a
federally controlled substance was at issue, without
addressing cases like Ruiz-Vidal that actually deal with the
Department‟s burden, see, e.g., id. at 997, 1000 (relying on,
among others, Luu-Le and Escobar Barraza).
35
To guide the BIA‟s decision, we note the following.
First, that normally the proper way to establish the fact of a
conviction is to rely on the so-called Taylor-Shepard
documents, and we see no reason why the existence of a
federally controlled substance cannot be similarly established.
See Shepard v. United States, 544 U.S. 13, 23-24, 26 (2005).
“[I]n the case of a guilty plea,” these documents consist of
“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). But we
have also recognized that a police criminal complaint may
establish the underlying fact of a conviction to the extent it
serves as a charging instrument with certain indicia of
reliability. See, e.g., Garcia v. Att’y Gen., 462 F.3d 287, 292
(3d Cir. 2006) (so holding when the complaint bore the
“imprimatur” of the district attorney). In that regard,
however, we reiterate that the reliability of the police criminal
complaint here is already in grave doubt. For one, it states
that it was approved by a Commonwealth attorney “via
phone” in a space where the document appears to require a
signature from an approving attorney. Moreover, it was
prepared in October of 2009, seven months after Rojas‟s
arrest. Finally, the affidavit of probable cause attached to the
complaint inexplicably narrates the arrest of a woman in June
of 2009 for drunk driving.
Second, the police criminal complaint here implicates
the Supreme Court‟s recent admonitions to be wary of
attempts to relitigate prior convictions based on documents
“the meaning of [which] will often be uncertain,” or when
“the statements of fact in them may be downright wrong.”
Descamps, 133 S. Ct. at 2289. Indeed, charging documents
36
generally implicate the Supreme Court‟s concern that “during
plea hearings, the defendant may not wish to irk the
prosecutor or court by squabbling about superfluous factual
allegations” in a document that does not constitute the basis
of a defendant‟s actual plea. Id. We trust that the BIA will
consider these points in deciding whether to remand the case
to the IJ.
V. CONCLUSION
The outcome of this case turns on the plain text of
§ 1227(a)(2)(B)(i), and, in particular, on the language of the
parenthetical: “as defined in section 802 of Title 21.” We
conclude that this clause means that the controlled-
substances conviction that is the basis of removal must
involve or relate to a substance “defined in” federal law.
Most drug convictions will qualify as removable offenses
under this reading. Indeed, the guilty plea or jury
instructions in a Pennsylvania drug-paraphernalia conviction
will normally list the drug at issue (given that a violation of
the statute requires the actual or intended presence of a
specific drug), and most of Pennsylvania‟s drugs are on the
federal list. It simply will be a matter of checking if the
substance at issue is contained in that list. Thus, “to the
extent that our rejection of the Government‟s broad
understanding of the scope of [this statute] may have any
practical effect on policing our Nation‟s borders, it is a
limited one.” Carachuri-Rosendo, 130 S. Ct. at 2589. And,
to be sure, Congress may change the trigger of removability
by altering—or deleting—the contents of the parenthetical.
Today, we simply give effect to the statute‟s most natural
reading.
37
We will grant Rojas‟s petition for review and remand
the case to the BIA for further proceedings in accordance
with this opinion.
38
GREENBERG, Circuit Judge, dissenting
As the majority has indicated, this matter is before this
Court on Ramiro Enrique Rojas‟s petition for review of a
decision and order of the BIA dated January 17, 2012,
dismissing his appeal from a decision of an immigration judge
(“IJ”) dated September 22, 2011. The case arises from the
circumstance that a Pennsylvania state court convicted Rojas, a
citizen of the Dominican Republic and lawful permanent
resident (“LPR”) of the United States, on the basis of his pleas
of guilty to state charges of use/possession of drug paraphernalia
and possession of marijuana. Thereafter the Department of
Homeland Security (“Department”) sought to remove Rojas
pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) by reason of those
convictions. Section 1227(a)(2)(B)(i) 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.
Although the Department later conceded that Rojas‟s
conviction for possession of marijuana did not render him
removable because it did not pass the 30-gram statutory
removable threshold for marijuana, it continued to seek to
remove him on the basis of his separate conviction involving
drug paraphernalia. Rojas filed a notice to terminate the
1
removal proceedings pending against him before an IJ arguing
that his conviction for use/possession of drug paraphernalia
under Pennsylvania law did not “relate[] to a controlled
substance” within the meaning of section 1227(a)(2)(B)(i)
because the Pennsylvania definition of a controlled substance “is
more expansive” than that found in 21 U.S.C. § 802 (the
“Controlled Substances Act” or “CSA”) and thus his conviction
did not necessarily involve a controlled substance as defined in
the CSA. App. at 128 (internal quotation marks omitted). In
this regard, Rojas pointed out that the state court record of his
conviction did not specify the controlled substance involved in
his offense. The IJ denied Rojas‟s motion and sustained the
controlled substance charge of removability against Rojas and
issued a removal order. The BIA dismissed Rojas‟s appeal from
the IJ‟s decision and Rojas then filed a petition for review with
this Court. After a panel of this Court heard oral argument but
before it issued its opinion the Court on its own initiative
ordered that the matter be heard by the Court en banc.
Following argument before the en banc Court, the majority now
is granting the petition but I am dissenting as I would deny the
petition for review.1
1
The majority indicates that it does not matter whether it
reviews the BIA‟s legal conclusions de novo or reviews them
under the principles that the Supreme Court set forth in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 104 S.Ct. 2778 (1984), and I agree that the
scope of review that the Court uses in this case does not matter
for under any approach this Court should deny the petition for
review. Unlike the majority I make scant reference to opinions
2
Ultimately this case presents a single straightforward
question: was Rojas‟s conviction based on his guilty plea under
35 Pa. Stat. Ann. § 780-113(a)(32) (West 2003) for
use/possession of drug paraphernalia a “violation of . . . any law
of a State . . . relating to a controlled substance (as defined by
section 802 of Title 21)” under section 1227(a)(2)(B)(i).
Section 780-113(a)(32) prohibits:
The use of, or possession with intent to use, drug
paraphernalia for the purpose of planting,
propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting,
producing, processing, preparing, testing,
analyzing, packing, repacking, storing,
containing, concealing, injecting, ingesting,
inhaling or otherwise introducing into the human
body a controlled substance in violation of this
act.
Pennsylvania courts have held that to sustain a conviction
for possession of drug paraphernalia under 35 Pa. Stat. Ann. §
780-113(a)(32), “the Commonwealth must establish that the
items possessed, were used or intended to be used with a
controlled substance.” Commonwealth v. Torres, 617 A.2d 812,
815 (Pa. Super. Ct. 1992). Pennsylvania law, in part tracking
section 780-113(a)(32), broadly provides that “drug
paraphernalia” means:
from other jurisdictions because the meaning of section
1227(a)(2)(B)(i) is clear on its face and in reaching my result I
simply rely on the text of the law as written.
3
[A]ll equipment, products and materials of any
kind which are used, intended for use or designed
for use in planting, propagating, cultivating,
growing, harvesting, manufacturing,
compounding, converting, producing, processing,
preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing,
injecting, ingesting, inhaling or otherwise
introducing into the human body a controlled
substance in violation of this act.
35 Pa. Stat. Ann. § 780-102(b) (West 2003). A “controlled
substance” in Pennsylvania is “a drug, substance, or immediate
precursor included in Schedules I through V of [the
Pennsylvania Controlled Substance, Drug, Device, and
Cosmetic Act].” Id. Under the CSA in 21 U.S.C. § 802(6)
“controlled substance” means:
a drug or other substance, or immediate precursor,
included in schedule I, II, III, IV, or V of part B
of this subchapter. The term does not include
distilled spirits, wine, malt beverages, or tobacco,
as those terms are defined or used in subtitle E of
the Internal Revenue Code of 1986.
Rojas contends that his conviction does not fall within
section 1227(a)(2)(B)(i) because the Department did not
establish that the CSA includes the unidentified substance
underlying his state-law paraphernalia conviction as a controlled
substance. Specifically, he argues that “in order to prove
deportability under [section 1227(a)(2)(B)(i), the Department]
4
must show that Mr. Rojas‟s criminal conviction was for
possession of a substance that is not only listed under the
Pennsylvania controlled substance schedules, but also contained
in the federal schedules of the Controlled Substance Act.”
Petitioner‟s br. at 14. Rojas contends that inasmuch as the
record of his conviction does not identify the substance involved
in his offense and the Pennsylvania schedules list more
substances than their federal counterparts, his conviction is not
necessarily one “relating to a controlled substance (as defined in
section 802 of Title 21).”
To determine whether Rojas‟s drug paraphernalia
possession conviction renders him removable pursuant to
section 1227(a)(2)(B)(i), the Court could “apply a formal
categorical approach.”2 Evanson v. Att‟y Gen., 550 F.3d 284,
290 (3d Cir. 2008) (citation and internal quotation marks
2
Such an application would be consistent with the Supreme
Court‟s recent holding in Moncrieffe v. Holder, 569 U.S. __,
133 S.Ct. 1678 (2013), in which the Court applied the formal
categorical approach to determine if a conviction for a Georgia
state offense constituted “illicit trafficking in a controlled
substance,” 8 U.S.C. § 1101(a)(43)(B), and therefore was an
“aggravated felony” under the Immigration and Nationality Act
(INA), 8 U.S.C. § 1101 et seq. As the Court explained, “[w]hen
the Government alleges that a state conviction qualifies as an
„aggravated felony‟ under the INA, [it] generally employ[s] a
„categorical approach‟ to determine whether the state offense is
comparable to an offense listed in the INA.” 133 S.Ct. at 1684
(citations omitted).
5
omitted) (discussing whether an offense of conviction amounts
to an aggravated felony under the Immigration and Nationality
Act). Under this approach, which the BIA applied, a court
“must look only to the statutory definitions of the prior offenses,
and may not consider other evidence concerning the defendant‟s
. . . crimes, including . . . the particular facts underlying a
conviction.” Borrome v. Att‟y Gen., 687 F.3d 150, 155 (3d Cir.
2012) (citations and alterations omitted). But Rojas contends
that the IJ and BIA should have used a modified categorical
approach in which “a limited number of judicially noticeable
documents [should be considered] to determine whether the
alien was in fact convicted of a removable offense.” Petitioner‟s
br. at 15. The majority, however, does not reach its result by
applying either a formal or modified categorical approach.
Rather, it explains that it reaches its result “simply from the text
of the law.” Majority typescript at 24. But no matter what
approach is taken it should be evident that Rojas‟s argument is
wrong and that the Court should deny his petition for review.
Though I limit my discussion of cases from other courts,
our opinion in Borrome requires discussion for, as I will explain,
the majority is repudiating a critical portion of that case. In
Borrome, in dealing with the relationship between the Federal
Food, Drug, and Cosmetics Act (“FDCA”) and the CSA this
Court observed that “the BIA has interpreted [„relating to‟]
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.” Borrome, 687 F.3d at 160 (quoting Matter of
Espinoza, 25 I. & N. Dec. 118, 120 (BIA 2009)) (some internal
quotation marks omitted). Moreover, as is particularly
6
significant here the Court in Borrome also pointed out that:
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 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.‟
Id. at 159 (emphasis added). The importance of the foregoing
statement in Borrome is obvious and if I could I would doubly
7
emphasize the last sentence.
The Pennsylvania drug paraphernalia law stands in the
same relationship to section 1227(a)(2)(B)(i) as the FDCA
provisions the Court considered in Borrome as both are “law[s]
. . . of a State [or] the United States.” Thus, the question before
the Court now is whether the Pennsylvania controlled substances
paraphernalia possession law under which Rojas was convicted
was a statute relating to a controlled substance as defined in 21
U.S.C. § 802 just as in Borrome the question was whether the
FDCA sections violated were laws relating to controlled
substances within section 1227(a)(2)(B)(i). On this point
notwithstanding the majority‟s conclusion there should be no
doubt.
In Borrome, an IJ found an alien removable pursuant to 8
U.S.C. §§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii) because he had
been convicted of an aggravated felony in violation of the
FDCA as set forth in 21 U.S.C. §§ 331(t) and 353(e). 687 F.3d
at 153. The IJ also found the alien removable under section
1227(a)(2)(B)(i) as an alien convicted of violating a law
“relating to a controlled substance.” Id. The alien appealed but
the BIA summarily affirmed and the alien then filed a petition
for review with this Court. Id. at 154. This Court granted the
petition and vacated the order of removal, concluding that the
FDCA provisions were not laws “relating to a controlled
substance” as defined by 21 U.S.C. § 802 under 8 U.S.C. §§
1101(a)(43)(B), 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i). 687
F.3d at 162-63. Nevertheless, the Court noted that the BIA and
several other courts of appeals “have held that a law prohibiting
the possession or use of drug paraphernalia is a law „relating to a
8
controlled substance,‟” because “[p]araphernalia 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.” Id. at 160 (some internal quotation marks omitted).
In Borrome, however, the Court recognized that although
the definition of “controlled substance” under a state law need
“not map perfectly with the definition of „controlled substance‟
under the CSA,” id. (some internal quotation marks omitted),
“the phrase „relating to . . .‟ must have limits, lest it be bent
beyond all logical meaning.” Id. at 162. Accordingly, in
Borrome the Court held 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 stated that “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.” Id. at 161 (emphasis in original). The Court
observed that some prescription drugs subject to the
proscriptions of the FDCA in 21 U.S.C. §§ 331(t) and 353(e)
were also “controlled substances” as defined under the CSA
including the powerful opiate Oxycontin, but some, such as
Viagra, were not. The Court thus held that “[t]he 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).” 687 F.3d at
161-62.
9
In reaching its conclusion in Borrome with respect to the
limits of the CSA, the Court observed that the connection under
the FDCA between 21 U.S.C. §§ 331(t) and 353(e) and
controlled substance offenses was attenuated, and that although
there is a “nexus” between prescription drugs and controlled
substances, “[t]o see the connection . . . [,] we must rummage
through [a] 400-plus page „Prescription Drug Product List‟ . . .
and then hunt for a match in the roughly 100 pages of schedules
of controlled substances in the Code of Federal Regulations.”
Id. at 162. The Court also recognized that those statutes
“criminalize a substantial swath of conduct with no nexus to
controlled substances as defined in 21 U.S.C. § 802,” id.,because those “statutes are blind to whether a particular
prosecution involves highly addictive prescription painkillers, or
relatively benign prescription shampoos, topical creams, or eye
drops.” Id. Thus, the Court was of the view that classifying 21
U.S.C. §§ 331(t) and 353(e) as laws “„relating to a controlled
substance‟ would stretch too far the bounds of the phrase
„relating to.‟” Id.Here, however, there is a close nexus between the state
crime of use/possession of drug paraphernalia to which Rojas
pleaded guilty and the CSA under 21 U.S.C. § 802 because only
an infinitesimal portion of the drugs listed as controlled
substances in the Pennsylvania schedules do not appear on the
federal schedules. As the majority points out the parties agree
that at the time of Rojas‟s conviction the Pennsylvania
controlled substances schedules contained only three narcotics
not listed on the federal controlled substances schedules.
Majority typescript at 5. Indeed, Rojas does not even contend
that the drug paraphernalia in his case related to one of this
10
minute fraction. In this vein, the Department argues that Rojas‟s
state conviction categorically falls within section
1227(a)(2)(B)(i) because “Pennsylvania‟s drug schedules . . .
closely mirror the federal ones,” and “the offense of drug
paraphernalia is closely linked to the offense of possessing
drugs.” Respondent‟s br. at 19-20.
Certainly the Department‟s assertion with respect to the
overlap of controlled substances is correct though the
Pennsylvania and federal lists of controlled substances are not
precisely identical. In considering this deviation in the
schedules the majority misses the forest for the trees in
performing a strict one-to-one comparison between the federal
and state lists. Congress, moreover, provided for slight variation
by referencing “any law or regulation of a State” and then
utilizing the broad language of “relating to” concerning
controlled substances as defined in federal law. See, e.g., Desai
v. Mukasey, 520 F.3d 762, 766 (7th Cir. 2008) (“If Congress
wanted a one-to-one correspondence between the state laws and
the federal CSA, it would have used a word like „involving‟
instead of „relating to,‟ . . . .”).
In any event, even though there were a minute number of
substances that at the time of Rojas‟s paraphernalia conviction
were controlled substances under Pennsylvania law but not
under the CSA, section 1227(a)(2)(B)(i) is applicable here.
After all, it is clear that, although, as Rojas contends, the
Pennsylvania definition of controlled substances goes beyond
the federal definition of controlled substances, the Pennsylvania
drug paraphernalia law as set forth in 35 Pa. Stat. Ann. § 780-
113(a)(32) under which Rojas was convicted applies to
11
paraphernalia used in connection to a vast number of controlled
substances as defined in 21 U.S.C. § 802. Therefore, Rojas
pleaded guilty to a violation of a state law that related to many
controlled substances as defined in 21 U.S.C. § 802.
The interpretation of section 1227(a)(2)(B)(i) that I
advance is consistent with the Court‟s reading of that section in
Borrome and is supported by the “rule of the last antecedent.”
That rule, an accepted principle of statutory interpretation,
teaches that “a limiting clause or phrase . . . should ordinarily be
read as modifying only the noun or phrase that it immediately
follows.” Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376,
380 (2003) (citation omitted); see also Disabled in Action of Pa.
v. SEPTA, 539 F.3d 199, 210 n.13 (3d Cir. 2008). Although the
rule is not absolute and can be negated “by other indicia of
meaning,” the Supreme Court has said that interpreting statutes
in conformity with the rule is „“quite sensible as a matter of
grammar.”‟ Barnhart, 540 U.S. at 26, 124 S.Ct. at 380 (quoting
Nobelman v. Am. Sav. Bank, 508 U.S. 324, 330, 113 S.Ct.
2106, 2111 (1993)). Moreover, in Barnhart the Supreme Court
reversed this Court for failing to adhere to this common rule of
English grammar. See id., 124 S.Ct. at 380-81.
Though the majority believes that the rule of the last
antecedent supports its result, in fact the majority is making the
same grammatical error that this Court made in Barnhart. As
stated above, the statutory text in section 1227(a)(2)(B)(i) at
issue reads:
Any alien who at any time after admission has
been convicted of a violation of (or a conspiracy
12
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.
The majority seems to believe that the rule of the last antecedent
supports its result because it indicates that the parenthetical, “as
defined in section 802 of Title 21,” “affects only its immediate
antecedent term, „a controlled substance.‟” Majority typescript
at 10. But the problem with the majority‟s analysis is that it is
considering the last antecedent to “as defined in section 802 of
Title 21.” But the fact is that the rule of the last antecedent
comes into play in this case when a court considers the last
antecedent to the phrase “relating to a controlled substance,” and
that antecedent certainly is “any law or regulation of a State, the
United States, or a foreign country” and not “convicted of a
violation.” After all, it simply cannot be reasonably denied that
the statute‟s plain language makes clear that the phrase “relating
to a controlled substance” does not follow the words “convicted
of a violation.” Therefore, regardless of the facts underlying a
conviction, if an alien is convicted of a violation of a state law
relating to a controlled substance, as surely was the case here
given Rojas‟s guilty plea for use/possession of drug
paraphernalia under 35 Pa. Stat. Ann. § 780-113(a)(32), he is
removable. Nothing could be clearer.
In reaching its result the majority is rejecting the plain
meaning of section 1227(a)(2)(B)(i) for it says that “the
Department must show that the conviction for which it seeks to
13
deport a foreign national involved or related to a federally-
controlled substance.” Majority typescript at 3. But section
1227(a)(2)(B)(i) says no such thing for what it says is that an
alien to be deported must be convicted of a violation of a law
“relating to a controlled substance (as defined in section 802 of
Title 21).” It is the law that the alien violated not the violation
of which the alien was convicted that must be related “to a
controlled substance (as defined in section 802 of Title 21).” It
is obvious that regardless of the substance involved in Rojas‟s
case he was convicted of violating a law relating to a controlled
substance as defined in section 802 of Title 21 and therefore the
Court should deny his petition for review.
I think that it is significant that in its opinion the majority
indicates that for an individual to be deported, the Department
must establish “that the individual it seeks to remove (1) is an
alien (2) who at anytime after entering the country violated or
attempted to violate a law relating to a controlled substance and
(3) that the controlled substance is defined as such by federal
law.” Majority typescript at 11. In this regard, it is clear that the
Department did establish that Rojas is an alien who violated a
law relating to a controlled substance as that term is defined by
federal law even if the particular drug involved in his case did
not come within the definition of section 802 of Title 21. In
effect the majority is rewriting section 1227(a)(2)(B)(i) by
adding the emphasized language so that the section reads as
follows:
An 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
14
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,
provided that the conviction was for an offense
that involved a controlled substance as defined in
21 U.S.C. § 802.
My conclusion with respect to what the majority is
actually doing should surprise no one for Borrome explains,
“relating to a controlled substance . . . modifies „law or
regulation,‟” not the facts of the offense. 687 F.3d at 159.
Though the majority indicates that it is “embrac[ing]” Borrome,
majority typescript at 27, in fact, it is repudiating that case‟s
critical statement that relates “controlled substance” to “law or
regulation” and therefore the majority is making the same
mistake that the immigration judge made in Borrome.
Finally, it is important to point out that in this case we are
not concerned with a state law the violation of which might
involve a controlled substance in an attenuated or happenstance
way. Quite to the contrary, the Pennsylvania law under which
Rojas was convicted was aimed at the regulation of controlled
substances almost all of which were controlled substances under
both Pennsylvania and federal law. Thus, Rojas‟s state case did
not involve a statute impacting on controlled substances
as a matter of chance as would be, for example, a general
shoplifting statute which precluded the shoplifting of any
merchandise and without specific reference included controlled
15
substances.3 If Rojas‟s prosecution and conviction had been
under such a statute it would be unreasonable to say that he had
been convicted under a law relating to a controlled substance as
defined in 21 U.S.C. § 802. See Borrome, 687 F.3d at 162.
For the reasons I have set forth I dissent from the
majority opinion as it is clear that the Court should deny Rojas‟s
petition for review and vacate the stay of removal that it granted
on January 31, 2012. Judge Fisher joins in this opinion.
3
I recognize that in theory there could be a problem if a state
nonsensically added a harmless product such as jelly beans to its
controlled substances schedules but I decline to reach my result
on that chance as Rojas does not contend that any such product
is involved here and I see no reason to believe that a state would
act in such an irrational way or if it did the addition would
survive judicial review. I further realize that, as the majority
points out, a state in what might not be regarded as a nonsensical
act could “include tobacco in its [controlled substances]
schedules.” Majority typescript at 11. Nevertheless, the remote
possibility that there could be such an inclusion in a state
controlled substances schedule should not control the result in
this case for we can be certain that if a state attempts to outlaw
the possession or use of tobacco the tobacco industry will not be
slow to file a district court action challenging the state law or
regulation under, inter alia, the Supremacy and Commerce
Clauses. In any event, long experience has taught me not to
decide cases to avoid a fictional parade of horribles.
16