Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-9-2006
Browne v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3162
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3162
________________
MARLON BROWNE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
Immigration Judge Walter A. Durling
(Agency No. A43 577 406)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
January 5, 2006
Before: BARRY, STAPLETON AND GREENBERG, CIRCUIT JUDGES
(Filed January 9, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Marlon Browne petitions for review of a final order of removal of the Board of
Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition.
Browne is twenty-four years old, and a native and citizen of Trinidad. He came to
the United States in 1992 as an immigrant. In 2000, Browne pled guilty in the Court of
Common Pleas for Montgomery County, Pennsylvania to the charge of Possession with
Intent to Deliver a Controlled Substance (Cocaine). Browne received a sentence of three
to twenty-three months in prison.
The Bureau of Immigration and Customs Enforcement charged Browne with being
subject to removal from the United States as an alien convicted of an aggravated felony,
as defined in Section 101(a)(43)(B) of the Immigration and Nationality Act, and a
violation of a law or regulation relating to a controlled substance. After a hearing, the
Immigration Judge concluded that Browne committed an aggravated felony, and ordered
his removal to Trinidad. In June 2003, the BIA affirmed, without opinion, the result of
the Immigration Judge’s decision, making it the final agency determination under the
immigration regulations. 8 C.F.R. § 1003.1(e)(4).
In January 2005, Browne filed a petition for a writ of habeas corpus in the United
States District Court for the Middle District of Pennsylvania. The District Court stayed
Browne’s removal, and transferred the habeas petition to this Court to be treated as a
petition for review pursuant to the Real ID Act, Pub. Law No. 109-13. We have
2
jurisdiction pursuant to Section 106(c) of the Real ID Act. Our jurisdiction extends to
questions of law raised upon a petition for review, including petitions for review of
removal orders based on aggravated felony convictions. Tran v. Gonzales, 414 F.3d 464,
467 (3d Cir. 2005).
In his habeas petition, Browne argues that he did not commit an aggravated felony
because he did not spend more than one year in prison. The term “aggravated felony” is
defined by statute, and includes “illicit trafficking in a controlled substance (as defined in
section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c)
of Title 18).” 8 U.S.C. § 1101(a)(43)(B). There are two tests for determining whether a
state drug conviction constitutes an aggravated felony, neither of which considers an
alien’s term of imprisonment.
The first test tracks the statutory language “illicit trafficking in a controlled
substance,” and requires that (1) the offense is a felony under the law of the convicting
sovereign; and (2) the offense must contain a “trafficking element,” or the unlawful
trading or dealing of a controlled substance. Gerbier v. Holmes, 280 F.3d 297, 313 (3d
Cir. 2002). The second, called the “hypothetical federal felony” route, requires that the
offense be analogous to an offense punishable under one of the federal acts specified in
18 U.S.C. § 924(c)(2) that constitutes a felony under federal law. Id. at 315. The
Immigration Judge appears to have concluded that Browne’s conviction constitutes an
aggravated felony under both tests.
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Applying the first test, Browne’s offense is a felony under Pennsylvania law.
Browne was convicted of violating 35 Pa. Stat. § 780-113(a)(30), which prohibits the
manufacture, delivery, or possession with intent to manufacture or deliver, a controlled
substance. By statute, a person who violates this provision with respect to cocaine is
guilty of a felony. 35 Pa. Stat. § 780-113(f)(1.1). In addition, Browne’s crime by
definition includes a trafficking element, satisfying the second requirement of the first
test. Because Browne committed an aggravated felony under this approach, we need not
address whether he satisfies the second test set forth in Gerbier.
Accordingly, we will deny the petition for review.1
1
Browne also argues that his removal should be stayed because he is seeking to
withdraw his guilty plea in state court based upon his attorney’s failure to advise him of
the immigration consequences of his plea. The fact that Browne is seeking relief in state
court, however, does not warrant a stay.
4