Jeune v. Attorney General of U.S.

• Citation: 476 F.3d 199
• Decision Date: 20 February 2007
• Docket Number: No. 05-3103.,05-3103.
• Parties: Jean Junior JEUNE, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

476 F.3d 199

Jean Junior JEUNE, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 05-3103.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 11, 2006.

Filed February 20, 2007.

Steven A. Morley, Morley, Surin & Griffin, Philadelphia, PA, for Petitioner.

Kathleen Meriwether, Office of United States Attorney, Philadelphia, PA, for Respondent.

Before SMITH and ROTH, Circuit Judges, and IRENAS, District Judge.^*

OPINION

SMITH, Circuit Judge.

The instant appeal raises a discrete issue: whether a conviction under 35 PA. STAT. ANN. § 780-113(a)(30) ("[M]anufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance"), without any additional facts, constitutes an "aggravated felony" under the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1227(a)(2)(A)(iii). It cannot. To hold otherwise would be inconsistent with our recent holding in Garcia v. Attorney General of the United States, 462 F.3d 287 (3d Cir.2006), that a violation of 35 PA. STAT. ANN. § 780-113(a)(30) is not categorically an aggravated felony.

I. Facts and Procedural History

Jean Jeune ("Jeune") filed a petition for a writ of habeas corpus and stay of removal with the United States District Court for the Eastern District of Pennsylvania, asking for review of the lawfulness of the final order of removal ordered against him by the Board of Immigration Appeals ("BIA"). Congress subsequently eliminated district court jurisdiction over habeas petitions filed by aliens concerning removal orders. See 8 U.S.C. § 1252(a)(5). Jeune's habeas petition was converted to a petition for review by this Court.

Jeune is a native and citizen of Haiti. He entered the United States as a lawful permanent resident on September 7, 1980, at the age of eleven. Jeune was arrested on February 20, 1996 for possession of marijuana and charged with one count of violating 35 PA. STAT. ANN. § 780-113(a)(30). The statute states, in relevant part:

a) The following acts and the causing thereof within the Commonwealth are hereby prohibited * * *

(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

Id. Jeune pled guilty and was sentenced to five years probation.

On February 21, 2002, he was charged with being subject to removal under INA § 237(a)(2)(A)(iii) for committing an "aggravated felony" of "illicit trafficking in a controlled substance," and under INA § 237(a)(2)(B)(i) for violating "any law ... relating to a controlled substance." See 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(B)(i). These charges followed from his conviction under 35 PA. STAT. ANN. § 780-113(a)(30). The Immigration Judge ("IJ") found that Jeune's conviction constituted an aggravated felony and therefore prevented him from applying for discretionary relief from removal. The IJ ordered Jeune removed from the United States. The BIA affirmed.

II. Discussion

We have jurisdiction over Jeune's petition for review pursuant to 8 U.S.C. § 1252(a)(2)(D). See Ng v. Att'y Gen., 436 F.3d 392, 394 (3d Cir.2006) (noting that our jurisdiction extends to "questions of law raised upon a petition for review," including petitions for review of removal orders based on aggravated felony convictions). We exercise plenary review over Jeune's legal argument that he was not convicted of an aggravated felony. See Tran v. Gonzales, 414 F.3d 464, 467 (3d Cir.2005).

Jeune contends that the IJ erred by holding that Jeune had committed an aggravated felony within the meaning of the INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). The Government argues that we are bound by this Court's decision in Garcia v. Attorney General of the United States, 462 F.3d 287 (3d Cir.2006). Though the Government is correct, we suspect that our fidelity to Garcia will be cold comfort to them. Garcia dictates that the practically non-existent record in this case cannot support an aggravated felony determination. We will reverse the BIA and remand for further proceedings consistent with this opinion.

Aliens who have been convicted of an aggravated felony are ineligible for discretionary relief from an order of removal. See 8 U.S.C. § 1158(b)(2)(A)(ii) (asylum); 8 U.S.C. § 1229(a)(3) (cancellation of removal); 8 U.S.C. § 1231(b)(3)(B)(ii) (withholding of removal). The INA defines an aggravated felony as "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B).

We set out the framework for determining whether an offense is an aggravated felony in Gerbier v. Holmes, 280 F.3d 297, 313 (3d Cir.2002). We held that there are two routes by which an offense may qualify as an aggravated felony. Id. Under the first route, the illicit trafficking approach, the state conviction is an aggravated felony if it is a felony under state law and contains a "trafficking element." Id. Under the second route, the hypothetical federal felony approach, the state conviction is an aggravated felony if it would qualify as a felony under the Federal Controlled Substances Act. Id. at 299.

We elaborated in Singh v. Ashcroft, 383 F.3d 144 (3d Cir.2004), that we should presumptively apply the "formal categorical approach" when making the Gerbier determination. Id. at 147 (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Under this approach, we "must look only to the statutory definitions of the prior offenses, and may not consider other evidence concerning the defendant's prior crimes, including, the particular facts underlying [a] conviction[]." Singh, 383 F.3d at 147-48 (internal quotes omitted).

However, some statutes may require departure from the formal categorical approach. Id. at 162. The "statute of conviction" invites departure when it is phrased in the disjunctive such that it is unclear from the face of the statute whether the conviction was an aggravated felony. Id. ("Where some variations meet the aggravated-felony requisites and others do not, we have ... allowed further inquiry to see which variation was actually committed."). We held in Garcia that 35 PA. STAT. ANN. § 780-113(a)(30) "is disjunctive, and therefore departure from the formal categorical approach is appropriate." 462 F.3d at 293.

A. The Illicit Trafficking Route

In Garcia, we recognized that a conviction under 35 PA. STAT. ANN. § 780-113(a)(30) is a felony under state law and, therefore, constitutes an aggravated felony if it contains a "trafficking element." See Garcia, 462 F.3d at 293. As 35 PA. STAT. ANN. § 780-113(a)(30) is not categorically clear as to whether trafficking is an element of the offense, we look to the facts of the conviction. Garcia, 462 F.3d at 293. To contain a trafficking element, a state felony must involve "the unlawful trading or dealing of a controlled substance." Gerbier, 280 F.3d at 305.

In Garcia, we looked to the charging instrument to determine whether the conviction contained a trafficking element. 462 F.3d at 292-293. We may look only to the records of the state conviction to establish the facts of the underlying conviction. Singh, 383 F.3d at 162-63. Unfortunately, the appellate record contains only three documents relating to the state conviction; the charging instrument, the sentence, and the certificate of probation. None of these documents shed any light on the facts of the conviction. Neither counsel has aided our inquiry. The record indicates only that Jeune was sentenced to five years probation, court costs, and $6,600 in restitution to "Donald Lee, Comcast Cellular Communication Corp." This record's vagueness distinguishes the instant case from Garcia, where the charging instrument related that "the defendant unlawfully sold and delivered a controlled substance, to wit, marijuana to an undercover police officer, and at a latter time on the same date the [defendant] possessed an additional 38 packets of marijuana [] in a quantity and under circumstances indicating intent to deliver." 462 F.3d at 293.

The Garcia panel concluded that, "it is clear from the criminal complaint that Garcia pled guilty to delivery and possession with the intent to deliver." Id. The Garcia panel stated:

In Gerbier, we noted that "distribution, solicitation, [and] possession with intent to distribute" suggest trading or dealing in a controlled substance. Since Garcia pled guilty to delivery and possession with the intent to deliver, the Pennsylvania equivalent of distribution and possession with the intent to distribute, his conviction indicates that he was trading or dealing in a controlled substance. Moreover, the criminal complaint clearly establishes that Garcia did in fact sell drugs to an undercover officer. For these reasons, we conclude that Garcia's Pennsylvania drug conviction is an aggravated felony under the illicit trafficking route of Gerbier.

Id. (internal citations omitted). The record before us reveals no such specificity.

The charging instrument indicates that, after Jeune's conviction, "the Commonwealth will proceed under 18 PA. CONS.STAT. ANN. § 7508 (concerning drug trafficking sentencing and penalties) and seek imposition of a sentence in accordance." The Government contends that we may conclude based solely on this information that Jeune committed an aggravated felony.

The Government asks us to rest our decision on this slender reed.¹ It cannot support the IJ's decision. The Government's argument is superficially plausible. The very title of the sentencing provision indicates that 18 PA. CONS.STAT. ANN. § 7508 "concern[s] drug trafficking." However, this...