Catwell v. Attorney Gen. Of The United States
| Decision Date | 13 October 2010 |
| Docket Number | No. 08-4208.,08-4208. |
| Citation | 623 F.3d 199 |
| Parties | Corwin Carl CATWELL, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
623 F.3d 199
Corwin Carl CATWELL, Petitioner
v.
ATTORNEY GENERAL OF the UNITED STATES, Respondent.
No. 08-4208.
United States Court of Appeals,Third Circuit.
Argued July 13, 2010.
Opinion Filed: Oct. 13, 2010.
COPYRIGHT MATERIAL OMITTED.
Michael T. Gershberg, Esquire (argued), Laura L. Sandoval, Esquire, Steptoe & Johnson, Washington, DC, for Petitioner, Corwin Carl Catwell.
Kathryn L. DeAngelis, Esquire (argued), Richard M. Evans, Esquire, Paul Fiorino, Esquire, Thomas W. Hussey, Esquire, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent, Attorney General of the United States.
Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges.
Petitioner, Corwin Carl Catwell (“Petitioner”), seeks review of the decision of the Board of Immigration Appeals (“BIA”) that vacated the decision of the Immigration Judge (“IJ”) granting cancellation of removal, and instead entered a final order of removal against him. Petitioner raises four arguments in his petition, 1 only one of which requires extensive discussion. 2 The critical question for resolution is whether Petitioner's 2003 Pennsylvania state law conviction for possession with intent to distribute 120.5 grams of marijuana constitutes an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B), thereby rendering him ineligible for cancellation of removal, pursuant to 8 U.S.C. § 1229b(a)(3). The BIA concluded that Petitioner's conviction was an aggravated felony, since it did not fall within the exception established by 21 U.S.C. § 841(b)(4) 3 for a small amount of marijuana for no remuneration. This Court agrees with the BIA and will therefore deny the petition.
Petitioner is a native and citizen of Guyana, born out of wedlock in the Republic of Guyana on March 3, 1968. (J.A. 235.) His parents were both citizens of Guyana at the time of his birth. In 1972, Petitioner's father, Carlisle Catwell, married Roberta Hines, a United States citizen, and entered the United States as a lawful permanent resident on January 26, 1974. (J.A. 185.) Petitioner's father became a naturalized United States citizen on July 19, 1978. (J.A. 238.)
On April 13, 1978, Petitioner, who had previously been living with his mother in Guyana, adopted his father's surname.
(J.A. 236.) In 1980, Petitioner was admitted to the United States in New York City as a lawful permanent resident based on an approved Petition for Alien Relative filed by his stepmother, Roberta Hines. (J.A. 81, 177.) Upon Petitioner's arrival in the United States, his father obtained actual custody of Petitioner. Petitioner lived with his father until August 3, 1991, when his father was killed in a homicide. (J.A. 72, 237.) After his father's death, Petitioner lived with his birth mother, Alma Punch, 4 and his three brothers in Brooklyn, New York. Ms. Punch became a naturalized citizen on May 19, 1996, when Petitioner was 28 years old. (J.A. 177.) Although Petitioner lived with his birth mother immediately prior to his arrest, he also lived in Connecticut and Pennsylvania at various times in the past. 5
In 1996, Petitioner pled guilty to possession of narcotics in the Connecticut Superior Court in New London, Connecticut. (J.A. 139, 188.) He received a six-year suspended sentence and three years' probation. (J.A. 188.) Petitioner was arrested in February 2003, for possession of a controlled substance in Philadelphia. After trial, he was found not guilty. (J.A. 141-42.) On June 24, 2003, Petitioner was arrested and charged with possession of “a controlled substance, to wit, marijuana (... 120.5 grams), in sufficient quantity and/or under sufficient circumstances as to indicate an intent to deliver.” (J.A. 194.) On October 2, 2003, Petitioner pled guilty in the Philadelphia County Court of Common Pleas to possession of a controlled substance with intent to deliver or manufacture, in violation of 35 PA. STAT. ANN. § 780-113(a)(30) 6 and was sentenced to 15 months' probation. (J.A. 142, 193, 194.)
Based on this conviction, the Department of Homeland Security (“DHS”) arrested Petitioner at his residence in Brooklyn, New York on September 20, 2006. (J.A. 186.) On February 12, 2007, DHS issued a Notice to Appear, charging him with removability, pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) 7 and 8 U.S.C. § 1227(a)(2)(A)(iii). 8
During an initial hearing on October 30, 2007, Petitioner informed the IJ that he was a United States citizen. (J.A. 69.) Based on that representation, the IJ suggested that Petitioner submit an Application for Certification of Citizenship (“N-600 Application”). (J.A. 72-74.) Petitioner submitted the N-600 Application to the United States Citizenship and Immigration Services (“USCIS”), claiming derivative citizenship based upon his father's citizenship. (J.A. 242-56.) The USCIS denied Petitioner's N-600 Application on December 18, 2007, concluding that Petitioner did not have a valid claim to derivative citizenship from either parent. (J.A. 176.) The IJ affirmed the USCIS's decision. (J.A. 92-93.) The IJ then held that Petitioner was removable under 8 U.S.C. § 1227(a)(2)(B)(i), based on the 2003 Pennsylvania marijuana conviction, because he had been convicted of violating a law relating to a controlled substance.
Turning to the second basis for removal (8 U.S.C. § 1227(a)(2)(A)(iii)), whether Petitioner had been convicted of an aggravated felony, the issue before the IJ was whether Petitioner's 2003 Pennsylvania conviction would have constituted a felony under the CSA or whether it simply would have been a misdemeanor under § 841(b)(4). The Government acknowledged that Petitioner's offense involved no remuneration. (J.A. 96.) The IJ and the Government agreed that the only remaining issue was the weight of the marijuana involved.
At a subsequent hearing on March 18, 2008, the IJ questioned Petitioner as to whether the 120.5 grams of marijuana Petitioner possessed was for sale or for private use. (J.A. 101.) Petitioner testified that it was for his own personal use. ( Id.) Petitioner also stated “I only had like three or four, four bags of it, that, that-I mean, I didn't have no ounces or no grams or whatever it is you're talking about.” ( Id.) The IJ then ruled that:
[U]nless I change my mind again, under questioning of you under oath later on-I'm going to rule preliminarily this does not overtly suggest a commercial enterprise on your part.... But for the moment, I'll find that it's not a business or merchant nature sufficient to suggest it was something else other than personal use.
(J.A. 102.) Subsequently, the IJ suggested that Petitioner may be eligible for cancellation of removal, pursuant to 8 U.S.C. § 1229b(a), 9 and also suggested that Petitioner submit an application seeking that relief. ( Id.)
On May 7, 2008 the IJ held a hearing on Petitioner's application for cancellation of removal. Petitioner testified as to the circumstances leading up to his 2003 Philadelphia arrest. Petitioner stated that he was “sitting in front of the house that [he] was staying at” in Philadelphia, Pennsylvania when an undercover police officer passed by and asked him if he had any marijuana to sell. (J.A. 142-43.) Petitioner informed the officer that he did not have any marijuana to sell but his friends,
who were inside the house, did have marijuana for purchase. (J.A. 143.) He then took $20 from the officer, exchanged it with his friends upstairs for two bags of marijuana, and exited the house to deliver the marijuana to the officer. (J.A. 143-44.) On June 24, 2003, Petitioner was arrested for possession of marijuana with intent to deliver. (J.A. 194.) Petitioner later pled guilty to those charges. (J.A. 193.)
Based on Petitioner's testimony, the IJ stated that the court “believes [Petitioner] has never sold drugs personally himself” and “the court believes [Petitioner] is eligible for the discretionary relief he seeks today.” (J.A. 13.) The IJ ultimately granted Petitioner's application for cancellation of removal, pursuant to 8 U.S.C. § 1229b(a).
On May 29, 2008, DHS appealed the IJ's decision to the BIA. (J.A. 50-53.) DHS raised three arguments: (1) that Petitioner's October 2, 2003 conviction for possession of a controlled substance with intent to deliver constituted an aggravated felony, consequently barring him from seeking cancellation of removal, pursuant to 8 U.S.C. § 1229b(a)(3); (2) that the IJ erred in finding Petitioner eligible for cancellation of removal; and (3) that Petitioner had not met his burden of establishing that his second conviction was not an aggravated felony, under the “hypothetical federal felony approach,” and that the IJ erred in finding that Petitioner was entitled to an exception, based on the amount of drugs involved.
On September 19, 2008, the BIA reversed the IJ's decision cancelling Petitioner's removal. The BIA held that it was Petitioner's “burden of proof to show that he is eligible for relief, including establishing by a preponderance of the evidence that he was not convicted of an aggravated felony.” (J.A. 9.) The BIA concluded that Petitioner had not met this burden. The BIA also concluded that Petitioner had not established that 120.5 grams of marijuana constituted a “small amount.”
The BIA had jurisdiction, pursuant to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. This Court has jurisdiction to review the final order of the BIA, pursuant to 8 U.S.C. § 1252(a).
When the BIA issues its own decision on the merits, rather than a summary affirmance, we review its decision, not that of the IJ. Sheriff v. Att'y Gen., 587 F.3d 584, 588 (3d Cir.2009). “The BIA's factual findings are reviewed for substantial evidence.” Briseno-Flores v. Att'y Gen., 492 F.3d 226, 228 (3d Cir.2007) (citing 8 U.S.C. § 1252(b)(4)(B)). We review the BIA's legal determinations de novo,...
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