Rosa v. Attorney Gen. U.S.
| Citation | 950 F.3d 67 |
| Decision Date | 29 January 2020 |
| Docket Number | No. 18-1765,18-1765 |
| Parties | Willy De Jesus ROSA, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Raymond P. D’Uva, I, Alexandra Miron, Law Offices of Raymond P. D’Uva, 17 Academy Street, Suite 1000, Newark, NJ 07102, Derek A. Decosmo (Argued), DeCosmo & Rolon, 511 Market Street, Camden, NJ 08102, Counsel for Petitioner
Matthew B. George (Argued), United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent
Eric M. Mark, Esq. (Argued), 201 Washington Street, Newark, NJ 07102, Counsel for Amici Curiae American Immigration Lawyers Association
Before: McKEE, ROTH, and FUENTES, Circuit Judges
This appeal asks us to address an issue of first impression under the Immigration and Nationality Act (the "Act") that carries implications beyond immigration law: whether the categorical approach, which compares the elements of prior convictions with the elements of crimes under federal law, permits comparison with any federal crime, or only the "most similar" one. That issue arises in noncitizen Willy de Jesus Rosa’s petition for review from the determination of the Board of Immigration Appeals that his prior New Jersey convictions for possession and sale of a controlled substance within 1,000 feet of a school constitute aggravated felonies under the Act. Specifically, he challenges the Board’s conclusion that his prior convictions could be compared not only to the federal statute proscribing distribution near a school but also to the federal statute prohibiting distribution generally. We agree that the Board erred in that conclusion and will grant the petition for review and remand for further proceedings.
The facts in the administrative record before us may be summarized as follows:
Rosa, a citizen of the Dominican Republic, was admitted to the United States as a legal permanent resident in 1992, when he was still a child. When his family arrived in the United States, they resided in Paterson, New Jersey, where Rosa eventually attended high school. While Rosa was in high school, his family, including five of his seven siblings, moved out of state; Rosa remained in New Jersey to complete high school.
Shortly after he graduated from high school in 2001, Rosa lost his job as a car valet and became associated with the "wrong people."1 In 2003, he was arrested for drug charges, and on February 20, 2004, he was convicted following a guilty plea in New Jersey Superior Court for the possession and sale of a controlled substance—cocaine—within 1,000 feet of school property in violation of § 2C:35-7 of the New Jersey statutes (the "New Jersey School Zone Statute").2 Eleven years later, the Department of Homeland Security served Rosa with a Notice to Appear, charging that Rosa was removable for the conviction of a controlled substances offense3 and of an "aggravated felony"4 for a "drug trafficking crime."5
Rosa subsequently appeared before an Immigration Judge, where he conceded removability for the controlled substances offense. However, he denied removability for the aggravated felony, which would have precluded him from being eligible for cancellation of removal.6 As required by Supreme Court precedent, the Immigration Judge applied the "categorical approach"7 to determine if Rosa’s state convictions qualified as an aggravated felony. Under the categorical approach, the Immigration Judge compared Rosa’s statute of conviction, the New Jersey School Zone Statute, with the federal statute for distribution "in or near schools and colleges" (the "Federal School Zone Statute").8 The Immigration Judge concluded that the state statute swept more broadly than its federal counterpart in both its proscribed conduct and its definition of "school property."9 Consequently, under the categorical approach, Rosa’s state conviction was not an "aggravated felony" under federal law,10 and he was eligible for cancellation of removal, which the Immigration Judge granted.11
The Department of Homeland Security appealed to the Board of Immigration Appeals. The Board determined that, under the categorical approach, Rosa’s state conviction could be compared to the federal statute generally prohibiting the distribution of a controlled substance (the "Federal Distribution Statute")12 as a lesser included offense of the Federal School Zone Statute. The Board concluded that the Federal Distribution Statute encompassed the elements of Rosa’s state statute of conviction and that the state conviction consequently qualified as an aggravated felony. The Board therefore determined that Rosa was ineligible for cancellation of removal and ordered him removed. Rosa timely appealed to this Court.
On appeal, Rosa contends that the Board of Immigration Appeals erred by concluding that his prior convictions could be compared to any federal analog under the categorical approach. According to Rosa, a prior conviction can only be properly compared to the "most similar" federal analog. The Government responds that nothing in the Immigration and Nationality Act prevents it from selecting any federal analog, especially those that would be lesser included offenses of the prior conviction. We agree with Rosa that the Board erred and hold that the Board’s conclusion runs afoul of longstanding federal practice. We conclude, however, that the record before us is insufficient to properly compare the New Jersey and Federal School Zone Statutes and remand for further proceedings to supplement the record.
The Board determined that Rosa’s prior convictions constituted aggravated felonies under the Immigration and Naturalization Act pursuant to what is known as the "categorical approach." The categorical approach "asks only whether the elements of a federal criminal statute can be satisfied by reference to the actual statute of conviction."14 Consequently, a court looks " ‘not to the facts of the particular prior case,’ but instead to whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony."15 If the elements of the state conviction "fit[ ]" within the elements of the appropriate federal offense, then the state conviction constitutes an aggravated felony.16 Consequently, "a state crime cannot qualify as an [aggravated felony] if its elements are broader than those of a listed generic offense."17
Although the categorical approach originally emerged in the Supreme Court’s decisions on the Armed Career Criminal Act,18 courts have extended the approach to certain "aggravated felonies" under the Immigration and Nationality Act.19 In particular, the categorical approach is applied to determine if a drug offense may be deemed an "aggravated felony"20 through "either one of two routes"21 under the Act: (1) for "illicit trafficking in a controlled substance,"22 which "must involve ‘the unlawful trading or dealing of a controlled substance’ "23 and was held by the Board not necessary for it to consider to reach its decision here; or, (2) for "a drug trafficking crime,"24 defined as "any felony punishable under the Controlled Substances Act."25
Section 924(c)(4) not only incorporates the Controlled Substances Act in defining a "drug trafficking crime," but it "encompasses all state offenses that ‘proscrib[e] conduct punishable as a felony under [the CSA].’ "26 The categorical approach, sometimes labelled the "hypothetical federal felony approach,"27 is applied to determine whether a state offense defines a felony under the Controlled Substances Act.28 If the state offense is narrower than, or the same as, the generic federal analog under the Controlled Substance Act, it constitutes an aggravated felony under the Immigration and Nationality Act.29
Before determining if the state offense is narrower or broader than its federal analog, a court must determine which state offense the defendant was convicted of. If the relevant state statute defines a single crime—known as an "indivisible" statute—the analysis is "straightforward."30 If, however, the statute defines multiple crimes in multiple subdivisions or by "list[ing] elements in the alternative," it is "divisible," and the analysis requires an extra step described below.31 To determine whether a statute is divisible or indivisible, courts are permitted to examine the statute itself and state court decisions and to "peek" at the "record of a prior conviction,"32 including the charging documents, plea agreement, plea colloquy, and jury instructions.33 A statute may be indivisible even if it has disjunctive phrasing—listing various components as alternatives—if it merely "enumerates various factual means of committing a single element."34
An indivisible statute defining a single crime is assessed under the "formal categorical approach" outlined above.35 However, a divisible statute listing multiple crimes with different elements requires courts to go an extra step beyond the categorical approach and employ the "modified categorical approach" to determine of which crime the defendant was convicted.36 " ‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove to sustain a conviction.’ "37 Under the modified categorical approach, the court may look to a limited class of documents—"for example, the indictment, jury instructions, or plea agreement and colloquy"—solely to determine under which portion of the statute and under which elements—the defendant was convicted.38 Once a court has used the modified categorical approach to "determine what crime, with what elements, a defendant was convicted of," then it may "compare that crime, as the categorical approach commands, with the relevant generic offense."39
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