Thomas v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

08-4706

OMAR THOMAS,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

On Petition for Review from the
Board of Immigration Appeals
BIA No. A041-362-379
Immigration Judge: The Honorable Andrew Arthur

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 16, 2010

Before: SLOVITER, BARRY, and SMITH,
Circuit Judges

(Filed: October 26, 2010)

1
Sandra L. Greene
Greene Fitzgerald Advocates and Consultants
2001 East Market Street
2nd Floor
York, PA 17402
Counsel for Petitioner

Patrick J. Glen
Thomas W. Hussey
Glen T. Jaeger
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent

OPINION

Smith, Circuit Judge.

The Board of Immigration Appeals (BIA) dismissed
Omar Thomas’s appeal from a decision of the Immigration
Judge (IJ) finding him removable. The BIA concluded that
Thomas’s misdemeanor convictions under New York Penal Law
§ 221.40 constituted aggravated felonies. Thomas then filed a

2
petition for review with this court. Simultaneously, Thomas
sought reconsideration by the BIA of its dismissal of his appeal.
The BIA granted the motion for reconsideration, but adhered to
the legal analysis set forth in its initial decision. Thomas did not
petition for review of the BIA’s second decision. We have
before us only the BIA’s initial decision, and must determine
whether we have jurisdiction to review it. We conclude that we
do, and will grant the petition.

I.

Thomas, a native and citizen of Jamaica, entered the
United States in November of 1987 at the age of 13 as a lawful
permanent resident. A little more than nine years later, on
December 9, 1996, Thomas was arrested. On December 10,
Detective Piazza of the New York City Police Department
completed a written statement, the issuance of which, if false, is
punishable under New York Penal Law § 210.45. It alleged that
Thomas committed the criminal sale of marijuana in the fourth
degree in violation of New York Penal Law § 221.40, as well as
criminal possession of marijuana in the fifth degree in violation
of New York Penal Law § 221.10(1). The detective averred that
he had been “informed by Undercover [informant] that . . .
[Thomas] did hand to informant two plastic bags of a green,
leafy substance with a distinct odor in exchange for $20[.]”
Thomas, who was represented by counsel from the Legal Aid
Society, appeared in the Criminal Court of the State of New
York that same day in what was designated No. 96x072866. His

3
counsel advised the Court that Thomas was “pleading guilty to
221.40 in full satisfaction” and that Thomas waived his right to
prosecution by information. The Court sentenced Thomas to
three days of community service.

Thomas was arrested again on December 27, 1997 for,
inter alia, the criminal sale of marijuana in the fourth degree in
violation of New York Penal Law § 221.40, No. 97x074755. A
police officer prepared a written statement for that case, also
punishable if false under New York Penal Law § 210.45,
alleging that the undercover officer received from Thomas and
another man one bag containing a dried, green, leafy substance
in exchange for $5. According to the certificate of disposition,
Thomas pleaded guilty on January 2, 1998 to violating
§ 221.40.1

In addition, Thomas was convicted of several other
controlled substance offenses. On July 31, 2007, he was served
with a Notice to Appear. The Notice charged Thomas with
having been convicted of the “Criminal Sale of Marijuana” in
violation of § 221.40 on January 8, 1997,2 and as a result

1
The record before us does not contain the transcript of the
plea colloquy for the proceeding in No. 97x074755.
2
Subsequently, it was determined during the immigration
proceeding that this allegation was erroneous because the January 8,
1997 conviction was for possession of marijuana. As a consequence,
the IJ focused on the December 10, 1996 and the January 2, 1998

4
thereof, being removable as a criminal alien on two grounds: (1)
for having been convicted of an aggravated felony, 8 U.S.C.
§ 1227(a)(2)(A)(iii); and (2) for having been convicted of a
controlled substance offense, 8 U.S.C. § 1227(a)(2)(B)(i). A
form entitled Additional Charges of
Inadmissibility/Deportability specifically cited the January 2,
1998 conviction, No. 97x074755, as well as four other
convictions involving marijuana. A625.

Before the IJ, Thomas conceded he was removable on the
second ground alleged in the Notice to Appear, i.e., that his
convictions were controlled substance offenses. He challenged
the averment that he had been convicted of an aggravated
felony, and filed an application for cancellation of removal
under 8 U.S.C. § 1229b(b). Because cancellation of removal
requires the alien to establish, inter alia, that he has not been
convicted of an aggravated felony, id. § 1229b(b)(1)(C), the IJ
directed Thomas to submit additional documentation regarding
his criminal history. Thereafter, the IJ determined that Thomas
had failed to demonstrate that his two convictions for violating
New York Penal Law § 221.40 were not aggravated felonies and
therefore concluded that he was ineligible for cancellation of
removal.

Thomas appealed to the BIA, challenging the IJ’s
determination that he was ineligible for cancellation of removal

misdemeanor convictions under New York Penal Law § 221.40.

5
because he failed to establish that his misdemeanor convictions
under New York Penal Law § 221.40 were not aggravated
felonies. In a decision dated November 5, 2008, the BIA
misread the IJ’s adjudication as a determination that he was
removable on both of the grounds set forth in the Notice to
Appear, i.e., that his convictions qualified as both controlled
substance offenses and aggravated felonies. Furthermore, the
BIA stated that the IJ had pretermitted his application for
cancellation of removal. In its consideration of the merits of
Thomas’s appeal, the BIA appropriately recognized that there
were two routes to apply in determining whether a conviction is
an aggravated felony, i.e., the illicit trafficking route, and the
hypothetical federal felony route. See Gerbier v. Holmes, 280
F.3d 297 (3d Cir. 2002). The BIA found support in the written
statements of the police officers for the determination that
Thomas had sold the marijuana for remuneration and that such
conduct constituted a hypothetical federal felony under the
Controlled Substances Act. As a result, the BIA agreed with the
IJ that Thomas’s conviction records established that he had been
convicted of an aggravated felony.

This timely petition for review followed.
Simultaneously, Thomas filed a motion with the BIA seeking
reconsideration, which asserted, inter alia, that the BIA’s
procedural recitation was factually incorrect because the IJ had
found him removable only on the second ground, to wit, that his
convictions qualified as controlled substance offenses. During
the pendency of his petition for review filed with this court, the

6
BIA granted his motion for reconsideration in a decision dated
June 12, 2009. The BIA agreed with Thomas that its initial
decision mischaracterized the ground on which the IJ had
determined he was removable. For that reason, the BIA granted
the motion to reconsider in order to clarify that Thomas was
found removable solely on the basis that his convictions were
controlled substance offenses. The BIA further stated that

[a]part from the aforementioned factual error,
which we have now corrected, we conclude that
our decision of November 5, 2008, properly
evaluated the legal question presented on appeal,
namely whether [Thomas’s] 1996 and 1998
convictions for fourth degree criminal sale of
marijuana in violation of N.Y. Penal Law
§ 221.40 preclude him from qualifying for
cancellation of removal. For the reasons stated in
our prior decision, we continue to hold that
[Thomas] is ineligible for cancellation of removal
. . . Specifically, the record reflects that [Thomas]
was convicted of making remunerative sales of
marijuana, offenses that correspond to felonies
punishable under the Federal Controlled
Substances Act . . . , namely marijuana
distribution.

Accordingly, the BIA dismissed Thomas’s appeal and affirmed
the order of removal. Within days of the second BIA decision,
the government filed a motion to dismiss the pending petition

7
for review for lack of jurisdiction. Despite that action by the
government, Thomas failed to file a petition for review of the
BIA’s second decision.

II.

The Immigration and Nationality Act (INA), as
amended, provides for “[j]udicial review of a final order of
removal[.]” 8 U.S.C. § 1252(a)(1). The government contends
that the BIA’s June 2009 decision granting the motion for
reconsideration effectively vacated the earlier November 2008
decision. The result is, according to the government, that the
BIA’s November 2008 decision no longer constitutes a final
order of removal subject to judicial review. If the government
is correct, because Thomas did not file a petition for review of
the BIA’s June 2009 decision, we lack jurisdiction under
§ 1252(a).

In Stone v. Immigration & Naturalization Service, 514
U.S. 386 (1995), the Supreme Court considered a similar
argument by an alien that his motion for reconsideration
rendered the BIA’s underlying order nonfinal. Based on the
statutory provisions providing for judicial review in § 106(a)(6)
of the INA, which has been repealed and replaced by
§ 1252(b)(6),3 the Court reasoned that

3
Section 106(a)(6) of the INA was repealed in 1996 and
replaced by § 1252(b)(6). The two statutory provisions are almost

8
 [b]y its terms, § 106(a)(6) contemplates two
petitions for review and directs the courts to
consolidate the matters. The words of the statute
do not permit us to say that the filing of a petition
for reconsideration or reopening dislodges the
earlier proceeding reviewing the underlying order.
The statute, in fact, directs that the motion to
reopen or reconsider is to be consolidated with the
review of the order, not the other way around.
This indicates to us that the action to review the
underlying order remains active and pending
before the court. . . .

Were a motion for reconsideration to
render the underlying order nonfinal, there would
be, in the normal course, only one petition for
review filed and hence nothing for the judiciary to
consolidate.

identical. The similarity between § 1252(b)(6)’s text and its
predecessor § 106(a)(6) is demonstrated by the following comparison
of the two statutory provisions in which the current § 1252(b)(6) is
annotated with strike-outs of some of the text of § 106(a)(6) and
underlining of the new text: “[W]heneverhen a petitioner seeks
review of an order under this section, any review sought with respect
toof a motion to reopen or reconsider such anthe order shall be
consolidated with the review of the order.” Thus, the Supreme
Court’s interpretation of § 106(a)(6) in Stone guides our application
of § 1252 in this case.

9
514 U.S. at 394. In other words, Stone instructs that the initial
order of the BIA is “final when issued, irrespective of the later
filing of a reconsideration motion[.]” Id. at 395.

Stone is controlling. Accordingly, we conclude that the
BIA’s initial decision in November of 2008 constitutes a final
order “irrespective of the later filing” of Thomas’s motion for
reconsideration. Because Thomas filed a timely petition for
review of the November 2008 decision, we have authority under
§ 1252(a)(1) to review that ruling.

The finality of an order, however, is not the only
requirement that must exist before we may exercise jurisdiction.
See Jaggernauth v. Attorney Gen., 432 F.3d 1346, 1351 (11th
Cir. 2005) (declaring that Stone “makes clear that the finality of
the [BIA’s first order] was not disturbed by [the] filing” of the
motion for reconsideration, but noting that Stone did not resolve
the justiciability issue that arises when reconsideration is granted
and the Board affirms its original order). “To sustain our
jurisdiction in the present case, it is not enough that a dispute
was very much alive” when the petition for review was filed in
the court of appeals. Lewis v. Cont’l Bank Corp., 494 U.S. 472,
477 (1990). “Article III of the Constitution limits federal
‘Judicial Power,’ that is, federal-court jurisdiction, to ‘Cases’
and ‘Controversies.’” U.S. Parole Comm’n v. Geraghty, 445
U.S. 388, 395 (1980). This case-or-controversy requirement
“limits the business of federal courts to ‘questions presented in
an adversary context and in a form historically viewed as

10
capable of resolution through the judicial process[.]’” Id. at 396
(quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)). When the
questions or “issues presented are no longer ‘live,’” the case is
moot. Powell v. McCormack, 395 U.S. 486, 496 (1969). That
is, an issue is moot if “changes in circumstances that prevailed
at the beginning of the litigation have forestalled any occasion
for meaningful relief.” Artway v. Attorney Gen. N.J., 81 F.3d
1235, 1246 (3d Cir. 1996) (internal quotation marks omitted).

Here, there has been a change in the circumstances that
existed at the time Thomas filed his petition for review, i.e., the
BIA subsequently granted his motion for reconsideration. The
BIA’s mere grant of a motion for reconsideration, however, does
not in itself render the petition for review moot. Rather, it is the
substance of the BIA’s subsequent decision, upon
reconsideration, that determines whether there is still a live issue
for the court of appeals to resolve. For example, if the BIA’s
subsequent decision substantively altered the ratio decidendi in
its earlier disposition and operated to vacate the BIA’s earlier
decision, then the petition for review of the earlier decision is
without effect because there is no longer any order or decision
for the court of appeals to review. On the other hand, if the
BIA’s subsequent decision did not materially alter the rationale
of the earlier ruling, that ruling remains effective and subject to
judicial review by the court of appeals.

Our sister courts of appeals have employed this sort of
substantive analysis in determining whether there is still a live

11
controversy to be resolved. For example, in Jaggernauth, the
Eleventh Circuit concluded that the BIA’s order granting
reconsideration did not vacate the BIA’s original decision. 432
F.3d at 1350-52. The Eleventh Circuit acknowledged that the
second decision contained some additional commentary by the
BIA about the propriety of its original ruling. The Court
concluded, however, that this commentary did not alter the
effectiveness of the original order inasmuch as the BIA
“explicitly” upheld its original order and noted that it had
“‘acted properly.’” Id. at 1351. Furthermore, the additional
commentary was not incorporated into the original order, and it
did not change the substance of the original order. Id. The
Court determined, therefore, that it had jurisdiction over the
petition for review of the BIA’s original order. Id. at 1352.

Similarly, in Plasencia-Ayala v. Mukasey, 516 F.3d 738
(9th Cir. 2008), the Ninth Circuit considered whether it had
jurisdiction over a petition for review of a decision of the BIA
in light of the BIA’s subsequent order granting the alien’s
motion for reconsideration. The Court agreed with the Eleventh
Circuit’s approach in Jaggernauth, declaring that

[w]here the BIA’s decision granting a motion for
reconsideration expressly affirms the BIA’s prior
decision and its analysis does not significantly
differ, there is little reason to require “the
petitioner to raise the identical issue again in a
petition to review the BIA’s decision on the

12
 motion to reconsider.” Desta[ v. Ashcroft], 329
F.3d [1179,] 1184 [(9th Cir. 2003)]. Stone
recognizes that Congress created parallel
processes of administrative and judicial review of
the BIA’s decisions to expedite the removal
process. Once a petition for review has been filed,
federal court jurisdiction is divested only where
the BIA subsequently vacates or materially
changes the decision under review.

Id. at 745, overruled on other grounds by Marmolejo-Campos v.
Holder, 558 F.3d 903, 911 (9th Cir. 2004) (en banc).

In contrast to Jaggernauth and Plasencia-Ayala, the
Sixth Circuit decided in Mu Ju Li v. Mukasey, 515 F.3d 575 (6th
Cir. 2008), that the BIA’s grant of an alien’s motion for
reconsideration effectively vacated the BIA’s original decision.
In Mu Ju Li, the alien sought reconsideration, contending that
the BIA had neglected to address her primary argument, which
sought relief under a specific statutory provision. The BIA
acknowledged that it had failed to address this argument,
granted reconsideration, and explained why the statutory
provision on which the alien relied was inapplicable. The alien
did not seek review of the BIA’s second decision granting
reconsideration. The government argued that the alien’s petition
for review of the first decision was no longer reviewable
because the subsequent decision effectively vacated the BIA’s
earlier decision. The Court agreed. It explained that “when the
BIA grants a motion to reconsider and–after considering the

13
issues afresh–renders a new decision addressing the arguments
raised, the original order has been vacated and a new order
entered in its place.” Id. at 578. Based on this reasoning, the
Sixth Circuit concluded that it lacked jurisdiction over the
alien’s petition for review of the BIA’s initial decision. Id. at
578-79.

The question for this Court, then, is whether the BIA’s
June 2009 decision vacated or materially altered its November
2008 decision. After scrutinizing the BIA’s June 2009 decision,
we conclude that the circumstances here are more analogous to
those in Jaggernauth and Plasencia-Ayala. First, it is
significant that the June 2009 decision did not explicitly state
that it was modifying, reversing or vacating the November 2008
decision. Rather, the BIA explained that it was granting
reconsideration because its “prior decision contains a factual
error and therefore we will reconsider the decision in order to
correct our error and clarify the record.” In other words, the
purpose of granting reconsideration was limited to correcting the
factual error. Indeed, in the very next sentence, the BIA stated
that it “once again conclude[d] that [Thomas] [wa]s removable
and ineligible for cancellation of removal.” After the BIA
corrected its factual mischaracterization of the IJ’s order, the
BIA stated that its November 2008 decision “properly evaluated
the legal question presented on appeal[.]” The BIA then
declared: “For the reasons stated in our prior decision, we
continue to hold that [Thomas] is ineligible for cancellation of
removal[.]” In short, it adhered to its earlier legal analysis. We

14
conclude, therefore, that the June 2009 decision did not vacate
or substantially modify the November 2008 decision. As a
consequence, the petition for review of the November 2008
decision continues to present a live controversy for our judicial
review.

III.

Thomas contends that the BIA erred in its determination
that his 1996 and his 1998 convictions qualified as aggravated
felonies, a determination that rendered him ineligible for
cancellation of removal. Whether Thomas’s convictions qualify
as aggravated felonies is a question of law subject to plenary
review. Evanson v. Attorney Gen., 550 F.3d 284, 288 (3d Cir.
2008); Garcia v. Attorney Gen., 462 F.3d 287, 290-91 (3d Cir.
2006).

An alien may obtain relief from removal if he qualifies
for cancellation of removal under 8 U.S.C. § 1229b. In order to
be eligible for a discretionary grant of cancellation of removal,
an alien must satisfy four requirements. Id. § 1229b(b). One of
these requirements is that the alien has not been convicted of an
offense under 8 U.S.C. § 1227(a)(2). That provision renders a
criminal alien deportable if he committed certain crimes,
including an “aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii).
“[A]ggravated felony” is defined to include, inter alia, “illicit
trafficking in a controlled substance (as defined in section 802
of Title 21), including a drug trafficking crime (as defined in

15
section 924(c) of Title 18)[.]” 8 U.S.C. § 1101(a)(43)(B). The
term “drug trafficking crime” in § 924(c)(2) “means any felony
punishable under” three specified federal statutes, one of which
is the Controlled Substances Act. 18 U.S.C. § 924(c)(2).
Furthermore, the definition of aggravated felony specifies that
the “term applies” regardless of whether the offense violates
“Federal or State law.” 8 U.S.C. § 1101(a)(43).

In Gerbier, we adopted the approach advanced by the
BIA for determining when a state drug offense constitutes an
aggravated felony. 280 F.3d at 304. That approach recognized
two routes: the illicit trafficking route and the hypothetical
federal felony route. Id. at 305-06. Under the illicit trafficking
route, a state drug conviction will not qualify as an aggravated
felony unless “(1) the offense [is] a felony under the law of the
convicting sovereign; and (2) the offense . . . contain[s] a
‘trafficking element’–i.e., it must involve ‘the unlawful trading
or dealing of a controlled substance.’” Id. at 305 (citation
omitted). Because Thomas’s convictions were misdemeanors
under New York Penal Law, see N.Y. Penal Law § 221.40,
those convictions cannot, by definition, be aggravated felonies
pursuant to the illicit trafficking route.

“The second route by which a state drug conviction could
be an aggravated felony under the INA is the hypothetical
federal felony route[.]” Id. at 306 (internal quotation marks
omitted). Under this route, a state conviction, regardless of
whether it is classified as a misdemeanor, qualifies as an

16
aggravated felony if it is “‘punishable’ under one of the three
specified statutes if federally prosecuted” and “would be
punishable by a term of imprisonment of over one year.” Id.
(quoting Steele v. Blackman, 236 F.3d 130, 135-36 (3d Cir.
2001) (internal quotation marks omitted). In other words, if the
“state drug conviction is punishable as a felony under the
Controlled Substances Act[,]” it may constitute an aggravated
felony pursuant to the hypothetical federal felony route.
Gerbier, 280 F.3d at 315; Lopez v. Gonzales, 549 U.S. 47, 55
(2006) (declaring that “[u]nless a state offense is punishable as
a federal felony it does not count”). In Evanson, we noted that
under the hypothetical federal felony route a “state marijuana
conviction is . . . only equivalent to a federal drug felony if the
offense involved payment or more than a small amount of
marijuana.” 550 F.3d at 289.

Our analysis of the hypothetical federal felony route
requires application of the formal categorical approach. Id. at
290. This approach was described in Taylor v. United States,
495 U.S. 575 (1990). In that case, the Supreme Court
considered whether the defendant’s state conviction for burglary
constituted a “burglary” for purposes of 18 U.S.C. § 924(e),
thereby justifying the application of a sentencing enhancement.
The Court concluded that the term “burglary” in § 924(e) did not
depend on the specific definition set forth by a state. Rather, the
term for purposes of § 924(e) meant the generic crime of
burglary that “regardless of its exact definition or label, ha[s] the
basic element of unlawful or unprivileged entry into, or

17
remaining in, a building or structure, with intent to commit a
crime.” Id. at 599. In order to determine if a defendant’s prior
offense warrants the sentencing enhancement under § 924(e),
the Court noted that the sentencing court will apply “a formal
categorical approach, looking only to the statutory definitions of
the prior offense, and not to the particular facts underlying those
convictions.” Id. at 600; see Gonzales v. Duenas-Alvarez, 549
U.S. 183, 186 (2007) (applying the categorical approach to an
immigration proceeding and noting that under the formal
categorical approach a court “should normally look not to the
facts of the particular prior case, but rather to the state statute
defining the crime of conviction”).

Taylor recognized that in some states a burglary offense
was broader than the § 924(e) generic definition of burglary. In
that event, the Court instructed, the sentencing court is permitted
“to go beyond the mere fact of conviction . . . where a jury was
actually required to find all the elements of generic burglary.”
Id. at 602. This modified approach permits a sentencing court
to find that a state offense constitutes a generic burglary under
§ 924(e) if “the charging paper and jury instructions actually
required the jury to find all the elements of generic burglary in
order to convict the defendant.” Id.

In this case, application of the formal categorical
approach requires examination of the New York statute under
which Thomas was convicted, without consideration of the
particular facts underlying the conviction, to determine whether

18
it is punishable as a felony under § 841(a)(1) of the Controlled
Substances Act for knowingly distributing or possessing with
the intent to distribute a controlled substance. Garcia, 462 F.3d
at 291. Section 221.40 of the New York Penal Law provides,
with an exception not relevant here, that “[a] person is guilty of
criminal sale of marihuana in the fourth degree when he
knowingly and unlawfully sells marihuana[.]” The term “sell”
is defined by statute as meaning “to sell, exchange, give or
dispose of to another[.]” N.Y. Penal Law § 220.00(1). This
definition gives rise to four alternative grounds for establishing
criminal culpability under the statute. Only selling and
exchanging marijuana, however, qualify as the hypothetical
federal felony of distributing marijuana in violation of 21 U.S.C.
§ 841(a). Evanson, 550 F.3d at 289 (declaring that “[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”) (citing Steele, 236 F.3d at 137).
Merely giving or disposing of marijuana does not constitute a
hypothetical federal felony. Steele, 236 F.3d at 131 (observing
that “one may be convicted of ‘criminal sale” [under § 221.40]
without evidence of a sale as commonly understood”).
Therefore, because § 220.00(1) is in the disjunctive and because
some criminal sales under § 221.40 might not constitute an
aggravated felony, Steele, 236 F.3d at 131, we must depart from
the formal categorical approach and apply the modified
categorical approach. Garcia, 462 F.3d at 291-92; see also
Evanson, 550 F.3d at 290.

19
 Although Taylor articulated the modified categorical
approach in a case involving a conviction by jury, the Supreme
Court determined in Shepard v. United States, 544 U.S. 13
(2005), that sentencing courts could apply the modified
categorical approach to convictions obtained pursuant to guilty
pleas. Id. at 19. It explained that Taylor did not limit the
evidence that may be considered under this modified approach
“strictly to charges and [jury] instructions . . . since a conviction
might follow trial to a judge alone or a plea of guilty.” Id. at 20.
The Court refused, however, to allow a sentencing court to
consider under the modified categorical approach a police report
submitted with the application for the issuance of criminal
complaint. It held that under the modified categorical approach
the inquiry

to determine whether a plea of guilty . . .
necessarily admitted elements of the generic
offense is limited to the terms of the charging
document, the terms of a plea agreement or
transcript of colloquy between judge and
defendant in which the factual basis for the plea
was confirmed by the defendant or to some
comparable judicial record of this information.

Id. at 26.

Thomas’s convictions under § 221.40 are dated, to say
the least. The records adduced by Thomas in an effort to
establish that he had not been convicted of an aggravated felony

20
are sparse. With respect to the December 10, 1996 conviction,
No. 96x072866, there is the police officer’s written statement,
a plea colloquy, what appears to be a docket page, and a
certificate of disposition. For the January 2, 1998 conviction,
No. 97x074755, the record before us contains only the police
officer’s written statement and a certificate of disposition.
There are no documents relating to the guilty plea proceeding in
the 1998 conviction.

The BIA determined that it could consider the police
officers’s written statements, which it characterized as affidavits
of probable cause, because they were charging documents. It
explained that in “New York, a criminal action commences with
the filing of an accusatory instrument” and the officer’s
statements were “the accusatory instrument[s] prepared by the
arresting officer[s] in connection with the filing of [the] criminal
complaint[s].” Because the statements indicated that Thomas
exchanged marijuana for money, the BIA concluded that the
statements established that Thomas’s convictions involved
remunerative sales that would be punishable under 21 U.S.C.
§ 841 of the Controlled Substance Act which makes it a crime
to, inter alia, distribute marijuana.4

4
The government contends that the BIA’s consideration of
the police officers’s written statements is consistent with the Supreme
Court’s decision in Nijhawan v. Holder, __ U.S. __, 129 S. Ct. 2294,
2303 (2009), which held that consideration of sentencing related
material is permitted under the modified categorical approach in

21
 We accept that the police officer’s written statements
played a role in the initiation of this particular criminal action.
Nonetheless, we are unwilling to accept the BIA’s
characterization of the statements as the relevant accusatory
instruments under New York Crim. Proc. Law § 100.10, as we
are unable to find, and we have not been directed to, any
authority establishing that a police officer’s lone written
statement, punishable if false under § 210.45, constitutes an
“information” or a “misdemeanor complaint.” 5 Furthermore,
even if the statements alone qualified as informations or
misdemeanor complaints, without some judicial indication of
whether the statement was processed as an information or a
misdemeanor complaint, we would be unable to determine if
such written statements were the relevant charging documents

determining whether an alien’s conviction constituted an aggravated
felony. In a footnote, the government acknowledged that its argument
might not be persuasive as Nijhawan could be distinguished on the
basis that it concerned the approach to be employed for a
“circumstance-specific” offense, as opposed to a “generic” crime such
as an “illicit trafficking” offense. This very distinction was pointed
out by the Supreme Court in Carachuri-Rosendo v. Holder, __ U.S.
__, 130 S. Ct. 2577, 2586 n.11 (2010). For that reason, we conclude
Nijhawan provides no support for the government’s argument that the
BIA appropriately considered the police officers’s written statements.
5
We limit our discussion to whether the written statements
constitute an information or a misdemeanor complaint under New
York Penal Law § 100.10 because the other accusatory instruments
are not applicable here.

22
under New York law. Our inability would stem from the fact
that a misdemeanor complaint “must . . . be replaced by an
information” unless the defendant “waive[s] prosecution by
information and consent[s] to be prosecuted upon the
misdemeanor complaint.” N.Y. Crim. Proc. Law §§ 170.65 (1),
(3). As a result, without documentation as to the type of
accusatory instrument that was filed, we could not ascertain if
the defendant had to waive his right to prosecution by
information. In the absence of such documentation, it would be
unclear whether the written statements constituted the relevant
charging documents under New York law. See Evanson, 550
F.3d at 293 n.7 (noting that, because the criminal complaint,
which appended an affidavit of probable cause, was superceded
by the criminal information, it was not the relevant charging
document).

We are cognizant that the plea colloquy for the December
10, 1996 conviction, No. 96x072866, established that Thomas
waived his right to prosecution by an information. Therefore,
the government might successfully argue on remand that the
police officer’s written statement, assuming that it could be
regarded as an accusatory instrument, constituted the relevant
charging document and provided evidence from the record of
conviction establishing that Thomas engaged in a remunerative
sale of marijuana. This argument falls short in our view because
it fails to recognize that a court is permitted under the modified
categorical approach to consult the charging documents,
together with other judicial records, “to determine what

23
elements formed the basis for a defendant’s underlying
conviction.” Evanson, 550 F.3d at 291 (citing Taylor, 495 U.S.
at 602). Taylor instructed that the purpose of going “beyond
the mere fact of conviction” was to determine whether there was
a finding of each element necessary to convict the defendant.
495 U.S. at 602. Shepard confirmed this focus. It explained
that, under the modified categorical approach, a court may not
look to a police officer’s report appended to the application for
the issuance of a criminal complaint because the purpose of
consulting records is to determine whether during a plea a
defendant “necessarily admitted elements” of the offense. 544
U.S. at 26. In Carachuri-Rosendo v. Holder, the Supreme Court
focused on whether the record of the defendant’s second state
misdemeanor conviction contained any “finding of the fact of
his prior drug offense[,]” which would render the second state
misdemeanor conviction a recidivist simple possession offense
punishable under the Controlled Substances Act, hence an
aggravated felony. 130 S. Ct. 2577, 2586 (2010). Because there
was no “finding of recidivism” in the record of the second state
misdemeanor conviction, id., the Court rejected the
government’s position which relied on what the alien “could
have been convicted of . . . but was not.” Id. at 2587.

In Steele, 236 F.3d at 136-37, we considered the very
issue addressed in Carachuri-Rosendo. There, we were
presented with the question whether any of the alien’s
misdemeanor convictions for § 221.40 constituted an aggravated
felony because it was punishable under the Controlled

24
Substances Act as a recidivist simple possession. 236 F.3d at
137 (citing 21 U.S.C. § 844). We heeded Taylor’s instruction
that the modified categorical approach must focus on whether
the record for the offense of conviction evinces the necessary
factual findings or admissions for the statute of conviction. We
declared that

[o]ne cannot suffer the disabilities associated with
having been convicted of an aggravated felony
unless one has been convicted of a felony. This,
of course, means that there must be a judicial
determination beyond a reasonable doubt of every
element of a felony or a constitutionally valid plea
that encompasses each of those elements.

Id. at 136-37. We were troubled by the grave consequences that
could attach to the misdemeanor charges if they qualified as an
aggravated felony, noting that such charges

are frequently not addressed by a defendant with
the same care and caution as a felony indictment
with its more serious, immediate consequences.
This concern counsels, at a minimum, that we
insist on sufficient formality in the misdemeanor
proceeding to assure that each and every element
of the . . . federal felony is focused on and
specifically addressed in that proceeding.

Id. at 137. Because the recidivist element necessary for a

25
federal felony had never been litigated and there was no judicial
determination regarding that element, we concluded that Steele
had not been convicted of an aggravated felony.

In United States v. Johnson, 587 F.3d 203 (3d Cir. 2009),
we questioned whether the records of the state conviction were
sufficient under the modified categorical approach to establish
the elements necessary to constitute a crime of violence. There,
the plea agreement was “not particularly helpful” and the
colloquy was “not available.” Id. at 206 (internal quotation
marks omitted). As a result, the government urged the
sentencing court in applying the modified categorical approach
to infer from the criminal information, which was the charging
document, that the defendant’s simple assault conviction
constituted a violent crime for purposes of U.S.S.G.
§ 4B1.2(a)(2). 587 F.3d at 206. We recognized that the
criminal information could properly be considered under
Shepard. But we did not believe that we could “conclusively
determine, based on the information alone, whether [the
defendant] actually admitted” the necessary facts to establish a
knowing or intentional assault. Id. at 212. As a result, we
declined to engage in such a “speculative exercise.” Id. at 213.
We remanded the case for further proceedings because the
government had located a transcript of the plea colloquy.

That we hesitated to speculate in Johnson suggests that
we should exercise caution here as well. Thomas pleaded guilty,
but the documentation supporting his two guilty pleas is sparse.

26
It is undisputed that Thomas pleaded guilty to violating
§ 221.40, which makes it a criminal offense to sell marijuana.
As we noted above, in light of the definition of “sell,” there are
four alternative grounds upon which criminal culpability under
the statute may be established, i.e., selling, exchanging, giving
or disposing of marijuana. After scrutinizing the record,
however, we cannot definitively establish that Thomas actually
admitted during the guilty plea proceedings that he sold or
exchanged marijuana, which are the only two grounds for
concluding that a § 221.40 conviction constitutes the
hypothetical federal felony of distributing marijuana in violation
of § 841(a).

Ordinarily, the factual basis for the plea appears in the
record of conviction, and a court applying the modified
categorical approach should be able to discern which of the
alternative elements a defendant “necessarily admitted” during
a guilty plea colloquy. Shepard, 544 U.S. at 26. The factual
basis for Thomas’s plea could have been placed on the record by
incorporating the written statement of the police officer or by
specific inquiry of Thomas during the colloquy. In this case,
there is no documentation relative to the plea proceeding for the
January 2, 1998 conviction, No. 97x074755. The transcript of
the plea colloquy for the December 10, 1996 conviction, No.
96x072866, reveals that Thomas admitted nothing during that
plea colloquy. Indeed, he never uttered a word. His counsel
informed the Court that Thomas was “pleading guilty to
§ 221.40 in full satisfaction.” In the absence of a specific

27
reference to the police officer’s written statement, we cannot
construe counsel’s entry of a guilty plea on behalf of his client
as an admission to the facts set forth in the statement. Nor is
there any inquiry by the presiding judge during the guilty plea as
to Thomas’s specific conduct. The Court never even inquired
whether Thomas agreed with his counsel’s representation that he
was pleading guilty.

Because the records of these § 221.40 convictions are
silent regarding the factual basis for the guilty pleas, we cannot
conclusively determine that Thomas actually admitted that he
sold or exchanged marijuana. It is equally plausible that
Thomas’s admission of guilt under § 221.40 was to conduct
which would not constitute a hypothetical federal felony, i.e.
giving or disposing of the marijuana. The police officers’s
written statements are, therefore, of no assistance to us in
determining whether Thomas’s convictions qualify as
aggravated felonies.

The government contends that the written statements by
the police officers, which it presumes constituted the charging
documents, are sufficient under Garcia, 462 F.3d 287. There,
the alien had been convicted under a Pennsylvania statute that
proscribed three offenses: manufacturing, delivering, and
possessing with the intent to deliver or manufacture a controlled
substance, 35 Pa. Stat. Ann. § 780-113(a)(30). We noted that it
was unclear whether the manufacturing prong involved the
trading and dealing element required to demonstrate that the

28
conviction qualified as an aggravated felony under the illicit
trafficking route. Because the statute criminalized some conduct
which would not constitute an aggravated felony, we departed
from the formal categorical approach and considered the
charging document, which alleged that the alien had sold
marijuana to an undercover officer. 462 F.3d at 289, 292.
Although the alien entered an open plea to violating § 780-
113(a)(30), we concluded that the charging document made it
“clear . . . that Garcia pled guilty to delivery and possession with
the intent to deliver[,]” as opposed to the manufacturing offense.
Id. at 293.

The government’s reliance on Garcia is misplaced. The
criminal information in Garcia set forth a factual basis for
Garcia’s plea that could not have supported a prosecution for
violation of the manufacturing prong of the statute of
conviction. As a result, the averments in the criminal
information ruled out the possibility that during the open plea
Garcia admitted that he engaged in conduct violative of the
manufacturing provision. By eliminating the manufacturing
prong as the factual basis for the plea, the criminal information
eliminated the sole ground for finding that Garcia’s open plea
was to conduct that did not constitute an aggravated felony. As
a consequence, the criminal information made it “clear” that
Garcia pled guilty to the elements of delivery and possession
with intent to deliver under the statute.

Unlike Garcia, the averments in the written statements of

29
the police officers that Thomas received money in exchange for
marijuana provided a factual basis for Thomas to plead guilty to
each of the alternative elements under § 221.40, i.e., “sell[ing],
exchang[ing], giv[ing] or dispos[ing] of” the marijuana to
another person. N.Y. Penal Law §§ 220.00, 221.40.
Accordingly, the written statements, if they were the charging
documents, did not narrow the factual basis for the plea to the
type of offense that necessarily entailed a remunerative sale. In
other words, the written statements do not make it clear that
Thomas actually pleaded guilty to selling or to exchanging the
marijuana. Without evidence that Thomas actually admitted that
he engaged in a remunerative sale, his open plea to § 221.40 did
not establish that he was convicted of a drug trafficking crime
that qualified as an aggravated felony.

For the reasons set forth above, we conclude that the
records for the December 10, 1996 conviction and the January
2, 1998 conviction do not establish that Thomas admitted or
assented to engaging in a remunerative sale of marijuana. In the
absence of judicial records to establish such a finding, we
conclude that Thomas’s misdemeanor convictions under
§ 221.40 were not drug trafficking crimes under 8 U.S.C.
§ 1101(a)(43)(B).

IV.

In sum, we conclude that we have jurisdiction over
Thomas’s petition for review of the BIA’s original decision.

30
Because Thomas’s misdemeanor convictions for violating New
York Penal Law § 221.40 do not constitute drug trafficking
crimes that qualify as aggravated felonies, we will grant
Thomas’s petition for review and remand for further
proceedings.