Syblis v. Attorney Gen. of the United States

• Decision Date: 18 August 2014
• Docket Number: No. 11–4478.,11–4478.
• Citation: 763 F.3d 348
• Parties: Damian Andrew SYBLIS, Petitioner v. ATTORNEY GENERAL OF The UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

763 F.3d 348

Damian Andrew SYBLIS, Petitioner

v.ATTORNEY GENERAL OF The UNITED STATES, Respondent.

No. 11–4478.

United States Court of Appeals,Third Circuit.

Argued Feb. 18, 2014.

Filed: Aug. 18, 2014.

Ryan A. Muennich, Esq., (Argued), Muennich & Bussard, New York, N.Y., for Appellant.

Nancy Morawetz, Esq., Washington Square Legal Services, Inc., Immigrant Rights Clinic, New York, N.Y., Jayashri Srikantiah, Esq., Stanford Law School, Mills Legal Clinic, Immigrants' Rights Clinic, Stanford, CA, for Amicus.

Anthony P. Nicastro, Esq., (Argued), United States Department of Justice, Office of Immigration Litigation, Thomas W. Hussey, Esq., Eric H. Holder, Jr., Esq., Sharon M. Clay, Esq., United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before: FISHER, JORDAN and SCIRICA, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

This appeal arises from the entry of an order of removal under 8 U.S.C. § 1227(a)(1)(B).¹ An Immigration Judge (“IJ”) found petitioner removable and ineligible for cancellation of removal, and the Board of Immigration Appeals (“BIA”) affirmed. Petitioner concedes removability under § 1227(a)(1)(B), but contests the adverse determination of his eligibility for cancellation of removal. Because petitioner has failed to meet his statutorily prescribed burden of demonstrating eligibility for relief from removal, we will affirm.

I. Facts & Procedural Background

Petitioner Damian A. Syblis, a native and citizen of Jamaica, entered the United States on May 9, 2000 as a nonimmigrant visitor. Pursuant to his visa status, Syblis was authorized to remain in the United States for a temporary period not to exceed three months. Despite this limitation, he remained in the United States beyond three months without seeking additional authorization.

Syblis's contact with the law began on July 31, 2004, when he was charged with possession of marijuana, in violation of Va.Code Ann. § 18.2–250.1. The charges were later amended, for unknown reasons, to possession of drug paraphernalia, in violation of Va.Code Ann. § 54.1–3466. He was convicted on November 30, 2004 of the amended charge. On March 27, 2008, in a matter unrelated to the 2004 incident, Syblis was convicted of possession of marijuana, in violation of Va.Code Ann. § 18.2–250.1.

Thereafter, on July 19, 2010, the United States Department of Homeland Security initiated removal proceedings against Syblis, charging him with removability pursuant to 8 U.S.C. § 1227(a)(1)(B) for overstaying his visa authorization, and pursuant to 8 U.S.C. § 1227(a)(2)(B)(i)²for his paraphernalia and marijuana convictions. Appearing before an IJ on April 14, 2011, Syblis conceded removability on the grounds that he had overstayed his visa; however, he contested his removability on the grounds that he was convicted of an offense relating to a controlled substance. During that time, Syblis also renewed a previous application for an adjustment of status, pursuant to 8 C.F.R. § 245.2(a)(5)(ii), and requested a waiver of criminal inadmissibility grounds, pursuant to 8 U.S.C. § 1182(h).³

On June 16, 2011, the IJ considered Syblis's controlled substances arguments to determine his eligibility under 8 U.S.C. § 1182(h). The IJ concluded that both of Syblis's convictions—for possession of drug paraphernalia and possession of marijuana—related to “controlled substances” for purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(II).⁴ Because Syblis had two convictions that related to controlled substances, instead of only one, the IJ found him ineligible for a waiver of criminal inadmissibility under 8 U.S.C. § 1182(h). The IJ pretermitted Syblis's application for an adjustment of status, and ordered him removed from the United States to Jamaica.

Syblis appealed the IJ's determination of ineligibility to the BIA. Because Syblis conceded removability under 8 U.S.C. § 1227(a)(1)(b), the BIA declined to reach the merits on his challenge to the IJ's decision to sustain the removal charge concerning 8 U.S.C. § 1227(a)(2)(B)(i). In analyzing the IJ's denial of Syblis's request for relief, the BIA first observed that Syblis had the burden of demonstrating his eligibility for relief under the waiver statute. It then acknowledged that Va.Code Ann. § 54.1–3466 punished paraphernalia offenses potentially related to controlled substances included within the Controlled Substances Act (the “CSA”), such as methamphetamine, cocaine, heroin, and opium-substances, and those not included within the CSA, such as those recognized by the official United States Pharmacopoeia National Formulary. The BIA based its ultimate conclusion on the fact that Syblis had not “meaningfully demonstrated” that his conviction fell into the latter category. (App. at 5). Because Syblis's convictions—both the paraphernalia offense and the marijuana offense—appeared to relate to controlled substances, and Syblis had not made any specific proffer otherwise, the BIA affirmed the IJ's conclusion that he was statutorily ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h).

This timely petition for review followed.

II. Jurisdiction & Standard of Review

The BIA had jurisdiction to review the IJ's order of removal under 8 C.F.R. § 1003.1(b)(3). This Court's jurisdiction arises under 8 U.S.C. § 1252(a).⁵

“When the BIA issues its own decision on the merits, rather than a summary affirmance, we review its decision, not that of the IJ.” Pieschacon–Villegas v. Att'y Gen., 671 F.3d 303, 310 (3d Cir.2011). “We review legal determinations de novo, subject to the principals of deference articulated in Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).” Id.

III. Analysis

“An alien applying for relief or protection from removal has the burden of proof to establish that the alien [ ] satisfies the applicable eligibility requirements.” 8 U.S.C. § 1229a(c)(4)(A)(i); see Jean–Louis v. Att'y Gen., 582 F.3d 462, 464 n. 2 (3d Cir.2009) (“An alien bears the burden of establishing his eligibility for discretionary cancellation of removal.”). “If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.” 8 C.F.R. § 1240.8(d).

As previously noted, § 1182(a)(2)(A)(i)(II) renders inadmissible “any alien convicted of ... a violation of ... any law or regulation ... relating to a controlled substance (as defined in section 802 of Title 21).” 8 U.S.C. § 1182(a)(2)(A)(i)(II). And § 1182(h) provides for a waiver of that finding of inadmissibility, where the alien has been convicted of only “ a single offense of simple possession of 30 grams or less of marijuana.” 8 U.S.C. § 1182(h) (emphasis added). Here, Syblis has two convictions that potentially relate to controlled substances under § 1182(a)(2)(A)(i)(II)—his conviction for possession of drug paraphernalia under Va.Code Ann. § 54.1–3466 and his conviction for possession of marijuana under Va.Code Ann. § 18.2–250.1. He has chosen to argue that Va.Code Ann. § 54.1–3466 does not relate to controlled substances under § 1182(a)(2)(A)(i)(II). If Syblis is correct, he may be eligible for a waiver of inadmissibility under § 1182(h) because he will have only been convicted of one law relating to a control led substance.⁶

We are thus faced with the question of whether Syblis has adequately met his burden of demonstrating his eligibility for relief. To meet this burden, Syblis must affirmatively demonstrate either: (1) that Va.Code Ann. § 54.1–3466 is not a law relating to a controlled substance; or (2) that the controlled substance involved in his conviction was not defined by federal law. See Rojas v. Attorney General, 728 F.3d 203, 209 (3d Cir.2013) (en banc) (analyzing a substantively identical statute to determine the government's burden in a removal proceeding).⁷

In his petition for review, Syblis argues that he has met this burden. ⁸ He argues that Va.Code Ann. § 54.1–3466 cannot relate to controlled substances because the range of behavior targeted by the statute covers controlled drugs and not controlled substances. Syblis finds this to be a key distinction, as the statute defines the terms “drug” and “controlled substances” separately. Because, as he sees it, Va.Code Ann. § 54.1–3466 does not relate to controlled substances, Syblis contends that our inquiry is at an end, and our Court need not reach the question of whether the controlled substance involved in his conviction was defined by federal law. Alternatively, however, he argues that, if we conclude that Va.Code Ann. § 54.1–3466 does meet the “relating to” portion of the analysis, he has still met his burden because his record of conviction is silent as to the type of substance involved in his offense.

A.

We begin with a discussion of whether Va.Code Ann. § 54.1–3466 relates to “controlled substances” for purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(II). In Rojas, we acknowledged “a parallel but distinct line of cases ... 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.” 728 F.3d at 217. Analysis of those cases does not require a strict element-by-element match between the federal and state statutes as required by the categorical approach.⁹See id. at 217 n. 15 (noting that many cases deciding whether a statute “relates to” controlled substances involve statutes of conviction that have no exact federal analog, making impossible the comparison of elements that the categorical approach requires). Rather, “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.” Id. at 217 (quoting Desai v. Mukasey, ...