Catwell v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 08-4208
_____________

CORWIN CARL CATWELL,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent
______________

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
(Agency No. A036 475 730)
Immigration Judge: Honorable Walter A. Durling
______________

Argued July 13, 2010
______________

Before: RENDELL, JORDAN, and GREENAWAY, JR.,
Circuit Judges
 (Opinion Filed: October 13, 2010)

Michael T. Gershberg, Esquire (argued)
Laura L. Sandoval, Esquire
Steptoe & Johnson
1330 Connecticut Avenue, N.W.
Washington, DC 20036
Counsel 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
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent Attorney General of the United States

______________

OPINION
______________

GREENAWAY, JR., Circuit Judge
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

2
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

1
The Government filed a motion to dismiss the petition,
based on 8 U.S.C. § 1252(a)(2)(C), which provides that “no
court shall have jurisdiction to review any final order of removal
against an alien who is removable by reason of having
committed a criminal offense covered” by several sections of the
statute. Although the Government appears to concede that this
section does not apply, we explicitly conclude that this case falls
within the exception provided by 8 U.S.C. § 1252(a)(2)(D),
which allows judicial review of “constitutional claims and
questions of law raised upon a petition for review filed with an
appropriate court of appeals.” Petitioner asks this Court to
review questions of law, as well as the constitutionality of
former 8 U.S.C. § 1432(a). Therefore, the motion to dismiss
will be denied.
2
Petitioner’s other three arguments are (1) that the BIA
applied the incorrect standard of review by failing to defer to the
IJ’s findings of fact; (2) that the BIA erred by shifting the
burden of proof to Petitioner in the cancellation of removal
proceeding; and (3) that Petitioner obtained derivative
citizenship through his father. While Petitioner poses the third
question in the issues presented section of his brief, his
argument on this point focuses on the constitutional claim that
“former § 321(a)(3) unconstitutionally discriminates against
aliens based upon legitimacy and gender.” (Br. of Pet’r 53.)

3
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.
I. BACKGROUND
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

3
Section 841(b)(4) provides that “[n]otwithstanding
paragraph (1)(D) of this subsection, any person who violates
subsection (a) of this section by distributing a small amount of
marihuana for no remuneration shall be treated as provided in
section 844 of this title and section 3607 of Title 18;” i.e., as if
they committed a misdemeanor rather than a felony. Although
the statute uses the spelling “marihuana,” we will use the
spelling adopted by the Supreme Court of the United States –
“marijuana.” Tony Mauro, To Are is Human, 12 Green Bag 2d
11, 12-13 (2008) (noting that Reporter of Decisions Henry Lind
“asked the justices to vote on how to spell the cannabis-bearing
plant” and subsequently “declared the issue resolved: ‘[T]he
spelling from now on should be a ‘j.’ I hope that this will settle
the matter.’”).

4
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

4
Ms. Punch’s maiden name was Alma France. (J.A. 185.)
5
Petitioner’s testimony before the IJ was unclear as to the
timing of his moves.

5
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 P A. S TAT. A NN. § 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

6
The Pennsylvania statute provides that “[t]he 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.” 35 P A. S TAT. A NN. § 780-113(a)(30).
7
Section 1227(a)(2)(B)(i) provides that:

Any alien who at any time after admission has

6
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

been convicted of a violation of (or a conspiracy
or attempt to violate) any law or regulation of a
State, the United States, or a foreign country
relating to a controlled substance (as defined in
section 802 of Title 21), other than a single
offense involving possession for one’s own use of
30 grams or less of marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(B)(i).
8
Section 1227(a)(2)(A)(iii) provides that “[a]ny alien who is
convicted of an aggravated felony at any time after admission is
deportable.” “Aggravated felony” is defined in 8 U.S.C. §
1101(a)(43)(B) as, among other offenses, “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). . . . The term applies to an offense described in this
paragraph whether in violation of Federal or State law.” Section
924(c)(2) defines “drug trafficking crime” as “any felony
punishable under the Controlled Substances Act (21 U.S.C. [§]
801 et seq.), the Controlled Substances Import and Export Act
(21 U.S.C. [§] 951 et seq.), or chapter 705 of title 46.” The
Controlled Substances Act (“CSA”) prohibits a variety of
offenses, such as possessing, manufacturing, distributing, and
dispensing controlled substances.

7
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

8
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

9
Section 1229b(a) provides that

The Attorney General may cancel removal in the
case of an alien who is inadmissible or deportable
from the United States if the alien--
(1) has been an alien lawfully admitted for
permanent residence for not less than 5 years,
(2) has resided in the United States continuously
for 7 years after having been admitted in any
status, and
(3) has not been convicted of any aggravated
felony.

8 U.S.C. § 1229b(a).

9
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

10
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.”
II. JURISDICTION AND STANDARD OF REVIEW
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, subject to the principles of
deference articulated in Chevron v. Natural Resources Defense
Council, 467 U.S. 837, 844 (1984). Briseno-Flores, 492 F.3d at
228.
Where the basis for removal is a conviction for an
aggravated felony, “our jurisdiction is limited under the REAL
ID Act ‘to constitutional claims or questions of law.’” Pierre v.
Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (en banc) (quoting

11
8 U.S.C. § 1252(a)(2)(C)-(D)). “Under the REAL ID Act,
factual or discretionary determinations are outside our scope of
review.” Id.
III. DISCUSSION
A.
The Third Circuit has considered the Pennsylvania
criminal statute at issue here in the immigration context several
times before, most recently in Evanson v. Attorney General, 550
F.3d 284 (3d Cir. 2008). The reasoning from that case is
straightforward.
First, “a state drug conviction constitutes an aggravated
felony if (a) it would be punishable as a felony under the federal
Controlled Substances Act, or (b) it is a felony under state law
and includes an illicit trafficking element. Accordingly, we
apply two independent tests for determining whether a state drug
offense constitutes an aggravated felony: the ‘illicit trafficking
element’ route and the ‘hypothetical federal felony’ route.”
Evanson, 550 F.3d at 288-89 (citing Garcia v. Att’y Gen., 462
F.3d 287, 291 (3d Cir. 2006)).10

10
“Under the illicit trafficking element test, a state felony
drug conviction constitutes an aggravated felony if it contains a
trafficking element.” Evanson, 550 F.3d at 289. “Essential to
the concept of ‘trading or dealing’ is activity of a business or
merchant nature, thus excluding simple possession or transfer
without consideration.” Steele v. Blackman, 236 F.3d 130,135
(3d Cir. 2001). This test is not applicable here, since there is no
argument regarding Petitioner receiving any monetary benefit.

12
 The hypothetical federal felony11 test requires a
comparison of the state conviction to the analogous offense in
the Controlled Substances Act (“CSA”). “A state marijuana
conviction is therefore only equivalent to a federal drug felony
if the offense involved payment or more than a small amount of
marijuana.” Id. at 289 (citing Steele v. Blackman, 236 F.3d 130,
137 (3d Cir. 2001)).12 Specifically, “[i]n Jeune v. Att’y Gen.,

11
Our reference to a “hypothetical federal felony” in this case
differs from the “hypothetical approach” recently criticized by
the Supreme Court in Carachuri-Rosendo v. Holder, 130 S. Ct.
2577 (2010). As directed by the Supreme Court, we “look to the
‘proscribe[d] conduct’ of a state offense to determine whether
it is ‘punishable as a felony under federal law,’” considering
“both the conviction (the relevant statutory hook), and the
conduct actually punished by the state offense.” Id. at 2588
(quoting Lopez v. Gonzales, 549 U.S. 47, 60 (2006)). While our
precedent uses the term “hypothetical federal felony,” our
analysis is not at all hypothetical. Rather, it follows the
Supreme Court’s direction in Carachuri-Rosendo for
determining whether a state offense constitutes a “fictional
federal felony.” For consistency with our precedent, we will
continue to use the phrase “hypothetical federal felony.”
12
Petitioner argues that we should apply the reasoning in
Blackman to conclude that his offense is a misdemeanor.
However, both the facts and the procedural setting in Blackman
differ from the present case.

In Blackman, the alien had been convicted in New York

13
we considered whether a conviction under 35 P A. S TAT. A NN.
§ 780-113(a)(30) was analogous to a violation of 21 U.S.C.

state courts of three misdemeanor offenses for possession of
unspecified amounts of marijuana. As this Court observed, “the
elements of the misdemeanor offense of ‘Criminal Sale of
Marijuana’ are met if the defendant has distributed 30 grams or
less of marijuana without remuneration.” Blackman, 236 F.3d
at 137. Taken individually, these offenses were not inherently
federal felonies since “the distribution of 30 grams or less of
marijuana without remuneration is not inherently a felony under
federal law.” Id.

The question presented there did not focus on the
quantity of marijuana involved, but rather the number of
offenses the alien had committed. The Court of Appeals
concluded that the district judge had erred in deciding that the
alien’s multiple offenses constituted the equivalent of a federal
felony. The Court of Appeals reasoned that, if a federal
prosecutor “wants a felony conviction, he or she must file an
information under 21 U.S.C. § 851 alleging, and subsequently
prove, that the defendant has been previously convicted of a
drug offense at the time of the offense being prosecuted.” Id.
However, the state prosecutors neither sought nor obtained an
enhancement based on the prior convictions. Since this aspect
of the federal felony was never litigated in state court, the Court
of Appeals concluded that the alien could not be held
accountable for a federal felony since every element necessary
to prove a federal felony had not been charged or proven. Id. at
137-38.

14
§ 841(b)(1)(D).[13] We found that distributing a small amount of
marijuana for no remuneration could be prosecuted under the
Pennsylvania statute, and thus that we could not determine that
it was equivalent to a federal drug felony without more
information about the conviction.” Id. (citing Jeune v. Att’y
Gen., 476 F.3d 199, 204-05 (3d Cir. 2007)).
Since “a conviction under the Pennsylvania statute is not
necessarily an aggravated felony . . . we must determine what
records may be consulted to evaluate a conviction under the
Pennsylvania statute.” Evanson, 550 F.3d at 290. This
determination requires application of the “formal categorical
approach” or the “modified categorical approach.” The
presumption is that the formal categorical approach applies. “A
formal categorical approach prohibits us from any review of the
factual basis for an underlying conviction.” Id.
The modified categorical approach, which allows
consideration of specific records, is used when the state statute
is divisible. The Third Circuit has concluded that “35 P A. S TAT.
A NN. § 780-113(a)(30) [the statute in question here] is divisible

13
Section 841(a) provides “[e]xcept as authorized by this
subchapter, it shall be unlawful for any person knowingly or
intentionally--(1) to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a
controlled substance.” 21 U.S.C. § 841(a). Section
841(b)(1)(D) provides the penalty for a violation of section (a)
where the offense involves less than 50 kilograms of marijuana,
50 or more marijuana plants, 10 kilograms of hashish, or one
kilogram of hashish oil. 21 U.S.C. § 841(b)(1)(D).

15
because it describes ‘three distinct offenses: manufacture,
delivery, and possession with intent to deliver or manufacture.’”
Id. at 292 (quoting Garcia, 462 F.3d at 293 n.9). Accordingly,
this Court will apply the modified categorical approach and
consider the record of Petitioner’s state conviction to determine
the factual basis of the conviction. The record from the
Pennsylvania state court is sparse, containing only the criminal
complaint14 and what appears to be a sentencing document.15

14
In Garcia, we observed that

In Pennsylvania, a criminal complaint is not
merely a police report. It is the charging
instrument, and in this case bears the imprimatur
of the district attorney. The filing of a criminal
complaint is sufficient to initiate criminal
proceedings in the Commonwealth and
Pennsylvania law does not require the subsequent
filing of either an information or an indictment if
a plea of guilty or nolo contendere is entered.
Since the record of conviction includes the
charging instrument, and the criminal complaint
in [Petitioner’s] case is the relevant charging
instrument, we may appropriately examine that
complaint if departure from the formal categorical
approach is appropriate.

Garcia, 462 F.3d at 292 (internal citations omitted). This Court
further elucidated this principle in Evanson when it stated that
“the only parts of the current record appropriately before the

16
The criminal complaint provides “more information about the
conviction” that was lacking in Evanson. Based upon the
criminal complaint, it is clear that Petitioner “possessed a
controlled substance, to wit, marijuana (PNW: 120.5 grams), in
sufficient quantity and/or under sufficient circumstances as to
indicate an intent to deliver.” (J.A. 194.)
On its face, Petitioner’s offense appears to be an
aggravated felony, since it involves possession of a controlled
substance with intent to deliver.16 Petitioner now argues, as he

BIA were the statutory definition and those counts of the
criminal information to which [the petitioner] pled guilty.”
Evanson, 550 F.3d at 293.
15
We may not consider any representations made in the
sentencing document since “factual assertions contained only in
a judgment of sentence may not be considered under the
modified categorical approach.” Evanson, 550 F.3d at 293.
16
We note that, contrary to the IJ’s conclusion that Petitioner
possessed the marijuana for his personal use, the offense with
which Petitioner was charged, and to which he pled guilty, was
not simple possession. Rather, it was possession with intent to
deliver. According to the definition in the statute, “‘[d]eliver’
or ‘delivery’ means the actual, constructive, or attempted
transfer from one person to another of a controlled substance,
other drug, device or cosmetic whether or not there is an agency
relationship.” 35 P A. S TAT. A NN. § 780-102(b). By its very
definition, Petitioner’s offense precluded the concept of
personal use.

17
had before the IJ and BIA, that, based on the amount of
marijuana he possessed, he falls within the exception of section
841(b)(4).
Thus, this Court must decide whether 120.5 grams of
marijuana is, or is not, a small amount of marijuana for purposes
of section 841(b)(4).17 As in all efforts at statutory construction,
we turn first to the language of the statute. Hardt v. Reliance
Standard Life Ins. Co., 130 S.Ct. 2149, 2156 (2010) (Statutory
construction “begin[s] by analyzing the statutory language,
assum[ing] that the ordinary meaning of that language

17
Very few cases have addressed the question of “small
amount” for purposes of the exception set forth in 21 U.S.C. §
841(b)(4). All of the cases we have found specifically
discussing small quantities of marijuana involved drug
possession in prison. The cases all distinguish between drug
possession in or near a prison and drug possession on the street,
noting that possessing drugs in prison has more severe
consequences than possessing drugs on the street. The amounts
involved ranged from 1.256 grams to 17.2 grams. None of these
were determined to be a small amount for the purposes of
section 841(b)(4). See United States v. Carmichael, 155 F.3d
561 (4th Cir. 1998) (unpublished table decision) (1.256 grams
of marijuana brought into prison is not a small amount since
drugs in prison are measured in grams and milligrams not
pounds and ounces); United States v. Wheeler, 121 F.3d 702
(4th Cir. 1997) (unpublished table decision) (2.86 grams not a
small amount); U.S. v. Damerville, 27 F.3d 254 (7th Cir. 1994)
(17.2 grams of marijuana distributed to inmates is not a small
amount).

18
accurately expresses the legislative purpose.” (internal
quotations omitted)); Blum v. Stenson, 465 U.S. 886, 896
(1984) (“Where . . . the resolution of a question of federal law
turns on a statute and the intention of Congress, we look first to
the statutory language and then to the legislative history if the
statutory language is unclear.”). “Where a statute’s text is
ambiguous, relevant legislative history, along with consideration
of the statutory objectives, can be useful in illuminating its
meaning.” United States. v. E.I. Dupont De Nemours and Co.
Inc., 432 F.3d 161, 169 (3d Cir. 2005).
Here, the statute itself provides no guidance on how
“small amount” should be interpreted. We therefore turn to the
legislative history.
The legislative history of §841(b)(4) provides some
guidance on the definition of “small amount of marijuana” since
it, at least, mentions a specific amount at one point. In 1970,
when the Senate was considering amending the CSA to include
the small amount exception, Senator Ted Kennedy, a co-sponsor
of the amendment, observed that “[m]any youngsters may be in
a situation where they are with friends, where they give a
marihuana cigarette or a small quantity of marihuana to one or
two others – not professional pushers, not to make a profit, but
in a casual and informal way.” 116 C ONG. R EC. 35,555 (1970).
Several courts have noted, looking to the legislative
history of the statute, that the exception contemplated social
sharing situations. United States v. Eddy, 523 F.3d 1268, 1271
(10th Cir. 2008) (section 841(b)(4) refers to “social sharing of
marijuana among friends”); United States v. Outen, 286 F.3d
622, 637 (2d Cir. 2002) (unspecified amount of marijuana, but

19
court noted the exception applied to “the sharing of small
amounts of marijuana in social situations”). These observations
are supported by statements made by Senator Harold Hughes
from Iowa, who observed that “[t]rafficking provisions should
apply to the large distributor, rather than to the person who is
only using the drug with his friends.” 116 C ONG. R EC. 35,555
(1970).
The comments made during consideration of the
amendment lead us to conclude that Congress contemplated and
intended “small amount” to mean the amount of marijuana an
individual would be likely to use on a single occasion, in a
social setting. In light of Senator Kennedy’s remarks, that
amount would be no more than one or two marijuana cigarettes,
or a few grams of marijuana. This conclusion is consistent with
8 U.S.C. § 1227(a)(2)(B)(i), which provides an exception to the
controlled substances offense as a basis for removal. The
exception exempts someone who possesses 30 grams or less of
marijuana from removal, describing this as an exception for
personal use. 8 U.S.C. § 1227(a)(2)(B)(i).
Under the Sentencing Guidelines, one marijuana cigarette
is equivalent to .5 grams. U.S.S.G. § 2D1.1. Given that
criterion, Petitioner possessed the equivalent of 241 marijuana
cigarettes, well beyond the single cigarette envisioned by
Senator Kennedy and the Congress.
We conclude that 120.5 grams is not a small amount, as
contemplated by Congress when it enacted the exception.
Therefore, Petitioner’s conviction did not involve a small

20
amount of marijuana for no remuneration.18 The exception
created by § 841(b)(4) does not apply to him. As a result,
Petitioner’s conviction was for an aggravated felony, rendering
him ineligible for cancellation of removal.19
B.
Petitioner’s remaining claims are without merit.
Petitioner argues that the BIA applied the incorrect
standard of review 20 when considering the appeal from the IJ’s

18
Our conclusion only addresses the quantity of marijuana
involved in Petitioner’s offense. Since the BIA did not discuss,
and the Government does not challenge, the IJ’s finding that
Petitioner’s offense involved no remuneration, we have no
reason to disturb that finding.
19
Because our analysis, using the modified categorical
approach, leads us to conclude that Petitioner was convicted of
an aggravated felony, his argument that, in addressing whether
he was so convicted and whether he was eligible for cancellation
of removal, the BIA erred in placing the burden of proof on him
is superfluous. Our determination that his conviction constitutes
an aggravated felony does not rest upon any application of a
burden of proof, but rather on a construction of the CSA and a
straightforward application of the modified categorical
approach.
20
The BIA’s standard of review is set forth in 8 C.F.R.
§ 1003.1(d)(3), which provides, in pertinent part, that:

21
decision. That is, Petitioner argues that the BIA “ignor[ed] the
primary factual findings made by the IJ. Specifically, Catwell’s
credibility, and the circumstances surrounding his conviction,
are factual issues that warrant deference from the BIA.” (Br. of
Pet’r 46.) Upon closer analysis, the only fact that the BIA
considered in reaching its conclusion that Petitioner did not
possess a small amount of marijuana was a fact noted by the IJ,
and acknowledged by Petitioner – that Petitioner possessed
120.5 grams of marijuana. (J.A. 194.) In fact, based on our
precedent, this is one of the few facts the BIA could properly
consider. Evanson, 550 F.3d at 293. Under the modified
categorical approach, the BIA could not consider Petitioner’s
testimony in analyzing whether Petitioner’s conviction was the
equivalent of a federal felony. Id. (“The BIA erred in
considering the amount of marijuana involved in [the
petitioner’s] offense, information contained only in the
judgment of sentence and his testimony before the IJ.”). Thus,
the BIA did not ignore the IJ’s factual findings, as any factual

(i) The Board will not engage in de novo
review of findings of fact determined by an
immigration judge. Facts determined by the
immigration judge, including findings as to the
credibility of testimony, shall be reviewed only to
determine whether the findings of the
immigration judge are clearly erroneous.
(ii) The Board may review questions of
law, discretion, and judgment and all other issues
in appeals from decisions of immigration judges
de novo.

22
findings made by the IJ are irrelevant to the aggravated felony
analysis.
Finally, Petitioner contends that former 8 U.S.C.
§ 1432(a)(3) “unconstitutionally discriminates against [him]
based upon legitimacy and gender.” (Br. of Pet’r 53.) Under
former 8 U.S.C. § 1432(a)(3) (repealed 2000), a child born out
of wedlock outside of the United States, where the paternity of
the child has not been established, can receive derivative
citizenship only through the naturalization of the mother.21
USCIS denied Petitioner’s N-600 Application on December 18,
2007, on the basis that Petitioner did not meet the statutory

21
While Petitioner challenges subsection (3), former 8 U.S.C.
§ 1432(a) provides that “a child born outside of the United
States of alien parents . . . becomes a citizen of the United States
upon fulfillment of the following conditions: (1) The
naturalization of both parents; or (2) The naturalization of the
surviving parent if one of the parents is deceased; or (3) The
naturalization of the parent having legal custody of the child
when there has been a legal separation of the parents or the
naturalization of the mother if the child was born out of wedlock
and the paternity of the child has not been established by
legitimation; and if (4) Such naturalization takes place while
such child is under the age of eighteen years; and (5) Such child
is residing in the United States pursuant to a lawful admission
for permanent residence at the time of the naturalization of the
parent last naturalized under clause (1) of this subsection, or the
parent naturalized under clause (2) or (3) of this subsection, or
thereafter begins to reside permanently in the United States
while under the age of eighteen years.”

23
requirements of former 8 U.S.C. § 1432(a)(3). Petitioner’s birth
mother became a naturalized citizen after he turned eighteen.
While his father was naturalized before Petitioner’s eighteenth
birthday, his parents were never married, and therefore could not
be legally separated. As a result, Petitioner could not obtain
derivative citizenship from either parent. That decision was
affirmed by the IJ (J.A. 92-93), and Petitioner does not contend
that the conclusion was in error. Instead, he argues that the
statute violates the equal protection clause because it
“discriminates against aliens based upon legitimacy and
gender.” (Br. of Pet’r 53.)
The Supreme Court has upheld differential treatment of
parents based on sex in the naturalization context finding
“nothing irrational or improper in the recognition that at the
moment of birth . . . parenthood [for the mother] has been
established in a way not guaranteed in the case of the unwed
father.” Nguyen v. INS, 533 U.S. 53, 68 (2001). In Nguyen v.
INS, the Court upheld a statute imposing an additional “set of
requirements on the children of citizen fathers born abroad and
out of wedlock to a noncitizen mother that are not imposed
under like circumstances when the citizen parent is the mother.”
533 U.S. at 60. The Court found that “[g]iven the proof of
motherhood that is inherent in the birth itself, it is unremarkable
that Congress did not require the same affirmative steps as
mothers.” Id. at 64.
The differential treatment embodied in 8 U.S.C.
§ 1432(a)(3) similarly withstands equal protection scrutiny
because it serves the important governmental objective of
allowing single parent derivative citizenship while protecting the
rights of alien parents by limiting circumstances in which it

24
(derivative citizenship) can occur. See Barthelemy v. Ashcroft,
329 F.3d 1062, 1066 (9th Cir. 2003) (finding that Congress’s
intent in limiting derivative naturalization was in furtherance of
a policy of protecting parental rights); see also
Bustamonte-Barrerra v. Gonzales, 447 F.3d 388, 397 (5th Cir.
2006) (finding that section 1432 was adopted in part “to prevent
the child from being separated from an alien parent who has a
legal right to custody”).
Although the statute creates an additional barrier to
establishing derivative citizenship by way of unwed fathers,
“[t]he imposition of a different set of rules for making that legal
determination with respect to fathers and mothers is neither
surprising nor troublesome from a constitutional perspective.”
Nguyen, 533 U.S. at 63. Furthermore, the statutory scheme “is
substantially related to the achievement of the governmental
objective in question.” Id. at 70 (citations omitted) (internal
quotation marks omitted). While establishing a general rule for
derivative citizenship based on naturalization of both parents,
Congress created an easily administered scheme providing
limited exceptions for alien children to achieve citizenship based
on the naturalization of one parent. Petitioner argues that this
unduly prevents him from obtaining citizenship; however, the
statute need not “be capable of achieving the [government’s]
objective in every instance.” Id. The legitimate reasons for
distinguishing between unwed mothers and unwed fathers
likewise support the distinction between children born to unwed
parents and children born to married parents who have since
separated. See Barthelemy, 329 F.3d at 1066 (rejecting
argument that former § 1432 “impermissibly distinguishes
between those children born of parents who never married and

25
those born of parents who at one time were married and then
legally separated”); cf. Fiallo v. Bell, 430 U.S. 787, 797-99
(1977) (upholding INA’s definition of “child,” for purposes of
the child receiving preferential immigration treatment, to
encompass the relationship between an illegitimate child and his
or her mother but not the relationship between an illegitimate
child and his or her father).
Former 8 U.S.C. § 1432’s restrictions on derivative
citizenship based solely on the father’s naturalization are
rationally related to the government’s objective of protecting the
rights of non-naturalized parents. As a result, Petitioner’s
constitutional challenge fails.
IV. CONCLUSION
For the reasons set forth above, we conclude that
Petitioner possessed more than a small amount of marijuana. As
a result, the BIA correctly concluded that Petitioner was not
eligible for cancellation of removal. We also conclude that the
BIA correctly deferred to the IJ’s findings of fact. Finally, we
find Petitioner’s constitutional challenge to former 8 U.S.C. §
1432 to be without merit. We will therefore deny the petition
for review.

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