Collymore v. Lynch
| Decision Date | 08 July 2016 |
| Docket Number | Docket No. 15–582,August Term, 2015 |
| Citation | 828 F.3d 139 |
| Parties | Rommel Ricardo Collymore, Petitioner, v. Loretta E. Lynch, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Lemay Diaz and Adino Barbarito, Law Students (Jonathan Romberg, Esq.; Christopher Capitanelli and Angelo Cerimele, Law Students, on the brief ), Seton Hall University School of Law Center for Social Justice, Newark, NJ, for Petitioner.1
Jason Wisecup, Trial Attorney, Office of Immigration Litigation, Civil Division (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and John W. Blakeley, Assistant Director, Office of Immigration Litigation, on the brief ), United States Department of Justice, Washington, D.C., for Respondent.
Before: STRAUB, WESLEY, and LIVINGSTON, Circuit Judges.
WESLEY
, Circuit Judge:
Petitioner Rommel Ricardo Collymore, a native and citizen of Barbados, and lawful permanent resident of the United States, seeks review of a January 30, 2015 final order of the Board of Immigration Appeals (“BIA”) affirming a September 23, 2014 decision of an immigration judge (“IJ”), which denied Collymore's application for cancellation of removal. See In re Rommel Ricardo Collymore , No. A041 730 196, 2015 WL 1208086 (BIA Jan. 30, 2015)
, aff'g No. A041 730 196 (Immig. Ct. N.Y. City Sept. 23, 2014). Collymore was found deportable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) on the basis of a prior conviction in 1997 under Title 35 of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act § 780–113(a)(30) (1997), which was determined to be a conviction that “relat[ed] to a [federal] controlled substance.” See 8 U.S.C. § 1182(a)(2)(A)(i)(II). Collymore's petition challenges that determination. For the reasons set forth below, we DISMISS the petition.
Collymore received lawful permanent-resident status in the United States in April 1989. On December 8, 1997, Collymore was convicted of a violation of 35 Pa. Stat. Ann. § 780–113(a)(30)
(1997)2 in the Court of Common Pleas of Northampton County, Pennsylvania. On August 7, 2008, upon his return from a trip to Barbados, Collymore applied for admission as a returning lawful permanent resident. Thereafter, on August 3, 2010, the Department of Homeland Security served Collymore with a Notice to Appear in immigration proceedings, charging him with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a crime involving moral turpitude and 8 U.S.C. § 1182(a)(2)(A)(i)(II) as an alien convicted of a controlled substance offense.
During the removal proceeding, Collymore admitted the factual allegations concerning his criminal conviction but deferred to the IJ as to removability. On the basis of Collymore's admissions, the IJ sustained both charges, and Collymore immediately sought cancellation of removal as a lawful permanent resident. The IJ denied Collymore's application for relief but afforded him additional time to pursue post-conviction relief in Pennsylvania state court related to his 1997 conviction.3 Collymore subsequently moved to terminate the removal proceedings on the basis that his conviction did not render him removable because his conviction was not categorically a controlled substance offense or a crime involving moral turpitude.
Thereafter, the IJ denied Collymore's motion to terminate and ordered him removed to Barbados. Specifically, the IJ determined that § 780–113(a)(30)
—the statute under which Collymore was convicted—was not categorically a crime related to a federal controlled substance because, in the IJ's view, the Pennsylvania statute proscribed conduct that would not necessarily constitute a controlled substance offense under federal law. The IJ then relied on a Third Circuit decision, United States v. Abbott , 748 F.3d 154 (3d Cir. 2014), to conclude that the Pennsylvania statute was divisible and employed the modified categorical approach, in which it examined Collymore's record of conviction to determine whether his conviction was for a controlled substance offense recognized by federal law. The IJ observed, based on a docket transcript certified by the Pennsylvania state court, that Collymore's conviction related to cocaine, which is listed as a controlled substance under the Controlled Substances Act's (“CSA”) schedules of controlled substances. See 21 U.S.C. § 812 (1997)
.4 Accordingly, the IJ concluded that Collymore was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II), and further inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) because an offense involving the possession of a controlled substance necessarily constituted a crime involving moral turpitude.
Collymore appealed to the BIA, which affirmed the IJ's decision and dismissed the appeal. Like the IJ, the BIA determined that Collymore's conviction under 35 Pa. Stat. Ann. § 780–113(a)(30)
was not a categorical match to 8 U.S.C. § 1182(a)(2)(A)(i)(II), but that the Pennsylvania statute was divisible under Abbott. Like the IJ, the BIA found that the record reflected that Collymore's conviction involved cocaine, a federal controlled substance, and that he was consequently removable under § 1182(a)(2)(A)(i)(II), but the BIA did not reach the question of whether Collymore's conviction also qualified as a crime involving moral turpitude subject to removability under § 1182(a)(2)(A)(i)(I).
Collymore filed a timely petition for review in this Court, challenging the determination of the BIA that a conviction under 35 Pa. Stat. Ann. § 780–113(a)(30)
(1997) constitutes a violation of a law relating to a federal controlled substance for purposes of removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II). Because we conclude that it does, we dismiss the petition.
“Any alien who at any time after admission has been convicted of a violation of ... any law ... of a State, ... relating to a controlled substance ... is deportable” upon order of the Attorney General of the United States. 8 U.S.C. § 1227(a)(2)(B)(i)
. Although we lack jurisdiction to review “any final order of removal against an alien who is removable by reason of having committed a [federal controlled substance] offense,” 8 U.S.C. § 1252(a)(2)(C), “[w]e retain jurisdiction ... to review the legal question ... whether a conviction underlying an order of removal, or the denial of relief from an order of removal, constitutes a[ ] [controlled substance offense],” Higgins v. Holder , 677 F.3d 97, 100 (2d Cir. 2012) (per curiam). “The inquiry determines our jurisdiction: [i]f [Collymore's] conviction is a [ ] [controlled substance offense], we must dismiss the petition for lack of jurisdiction; if not, we may exercise jurisdiction and vacate the order of removal.” Oouch v. U.S. Dep't of Homeland Sec. , 633 F.3d 119, 121 (2d Cir. 2011). Thus, “the jurisdictional issue merges with the merits, and we are therefore required to consider [Collymore's] substantive argument”: that his Pennsylvania conviction is not a controlled substance offense under the Immigration and Nationality Act (“INA”). Higgins , 677 F.3d at 100.
In assessing whether a conviction under 35 Pa. Stat. Ann. § 780–113(a)(30)
constitutes a controlled substance offense, “we use a categorical approach that looks to the elements of the penal statute rather than the particulars of the alien's conduct.” Oouch , 633 F.3d at 122. In doing so, we must determine “whether ‘every set of facts violating [the state] statute’ satisfies the criteria for removability” under the INA, mindful that “only the minimum criminal conduct necessary for a conviction is relevant.” Id.
(quoting Abimbola v. Ashcroft , 378 F.3d 173, 176 (2d Cir. 2004) ). If, however, the Pennsylvania criminal statute is “divisible” into qualifying and non-qualifying removable offenses, we proceed “under a modified categorical approach to ascertain which class of criminal act furnished the basis for the defendant's conviction.” Id. Where the statute is neither categorical nor divisible, though, “our inquiry is complete.” Id.
On appeal, the parties maintain, as they did before the agency below, that Collymore's 1997 conviction under § 780–113(a)(30)
does not categorically constitute a controlled substance offense because the Pennsylvania statute under which Collymore was convicted is not a categorical match to the grounds of removability under § 1182(a)(2)(A)(i)(II). That is, according to the parties, the IJ and BIA properly declined to apply the categorical approach because, in their view, some of the substances covered by the Pennsylvania law do not necessarily appear in the federal schedules of controlled substances. In their view, this means that the Pennsylvania statute criminalizes controlled substances that do not qualify as bases for removability under the INA, thereby precluding removability under the categorical approach.
We disagree; the crime for which Collymore was convicted in 1997 under § 780–113(a)(30)
is categorically a federal controlled substance offense for purposes of the INA, resulting in Collymore's removability.
The 1997 version of the Pennsylvania statute in question prohibits the following acts:
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