PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-2274
___________
GURPREET SINGH,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
_______________________
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A060-605-541
(U.S. Immigration Judge: Honorable Andrew Arthur)
______________
Argued: February 29, 2016
Before: AMBRO, JORDAN, and SCIRICA, Circuit Judges.
(Filed: October 6, 2016)
Daniel B. Conklin, Esq.
Craig R. Shagin, Esq. [ARGUED]
The Shagin Law Group
120 South Street
The Inns of St. Jude
Harrisburg, PA 17101
Counsel for Petitioner
Elizabeth R. Chapman, Esq. [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
________________
OPINION OF THE COURT
________________
SCIRICA, Circuit Judge
This immigration case concerns whether Gurpreet
Singh’s conviction under 35 P.S. § 780-113(a)(30) was an
aggravated felony under the Immigration and Nationality Act
(INA), which would make him ineligible for discretionary
relief from removal from the United States. We will grant the
petition for review, vacate the opinion of the Board of
2
Immigration Appeals (BIA), and remand to the BIA for
further proceedings.
I.
A.
Under the INA, “[a]ny alien who is convicted of an
aggravated felony at any time after admission” is removable
from the United States. 8 U.S.C. § 1227(a)(2)(A)(iii). Being
convicted of an aggravated felony also makes an alien
ineligible for certain forms of discretionary relief from
removal. See id. §§ 1158(b)(2)(A)(ii), (B)(i); §§ 1229b(a)(3),
(b)(1)(C).
Congress has defined an “aggravated felony” to
include, in pertinent part, “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).”1 8 U.S.C. § 1101(a)(43)(B). In turn, a “drug trafficking
crime” is defined as “any felony punishable under the
Controlled Substances Act (21 U.S.C. [§] 801 et seq.).” 18
U.S.C. § 924(c)(2). A “felony punishable under the
Controlled Substances Act” can include not only federal
offenses, but also state offenses. See Moncrieffe v. Holder,
133 S. Ct. 1678, 1683 (2013). And a “state offense constitutes
a ‘felony punishable under the Controlled Substances Act’
only if it proscribes conduct punishable as a felony under that
federal law.” Lopez v. Gonzales, 549 U.S. 47, 60 (2006).
1
We have previously referred to these as the “‘illicit
trafficking element’ route and the ‘hypothetical federal
felony’ route,” respectively. Evanson v. Att’y Gen. of the
U.S., 550 F.3d 284, 288–89 (3d Cir. 2008).
3
To determine whether a state offense proscribes
conduct punishable as a felony under the Controlled
Substances Act, we generally employ a “categorical
approach” to the underlying statute of conviction. See
Moncrieffe, 133 S. Ct. at 1684. Under the categorical
approach, we “focus solely on whether the elements of the
crime of conviction sufficiently match the elements of [the]
generic [federal offense], while ignoring the particular facts
of the case.” Mathis v. United States, 136 S. Ct. 2243, 2248
(2016). We look “not to the facts of the particular prior case,
but instead to whether the state statute defining the crime of
conviction categorically fits within the generic federal
definition of a corresponding aggravated felony.” Moncrieffe,
133 S. Ct. at 1684 (internal quotation marks omitted).
“Because we examine what the state conviction necessarily
involved, not the facts underlying the case, we must presume
that the conviction rested upon nothing more than the least of
the acts criminalized, and then determine whether even those
acts are encompassed by the generic federal offense.” Id.
(internal quotation marks and formatting omitted). And “our
focus on the minimum conduct criminalized by the state
statute is not an invitation to apply ‘legal imagination’ to the
state offense; there must be ‘a realistic probability, not a
theoretical possibility, that the State would apply its statute to
conduct that falls outside the generic definition of a crime.’”
Moncrieffe, 133 S. Ct. at 1684 (quoting Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007)).
But some cases involve convictions under state statutes
that “list elements in the alternative, and thereby define
multiple crimes,” Mathis, 136 S. Ct. at 2249, or that “contain
several different crimes, each described separately,”
Moncrieffe, 133 S. Ct. at 1684. The Supreme Court refers to
4
these statutes as “divisible” statutes. Mathis, 136 S. Ct. at
2249. To these statutes, we apply the “modified categorical
approach.”2 See id.; Mellouli v. Lynch, 135 S. Ct. 1980, 1986
n.4 (2015); see also Rojas v. Att’y Gen. of the U.S., 728 F.3d
203, 215 (3d Cir. 2013) (en banc) (noting the modified
categorical approach applies “[w]hen a statute of conviction
lists elements in the alternative, some of which fit the federal
definition and some of which do not”). We apply the
modified categorical approach to divisible statutes in order to
“determine what crime, with what elements, a defendant was
convicted of.” Mathis, 136 S. Ct. at 2249; see also
Moncrieffe, 133 S. Ct. at 1684 (holding the modified
categorical approach is applied to divisible statutes in order to
“determine which particular offense the noncitizen was
convicted of”); Evanson v. Att’y Gen. of the U.S., 550 F.3d
284, 291 (3d Cir. 2008) (holding courts should use the
modified categorical approach “to determine which of the
alternative elements was the actual basis for the underlying
conviction”).
Under the modified categorical approach, “a court may
determine which particular offense the noncitizen was
convicted of by examining the charging document and jury
instructions, or in the case of a guilty plea, the plea
agreement, plea colloquy, or some comparable judicial record
of the factual basis for the plea.” Moncrieffe, 133 S. Ct. at
1684 (internal quotation marks omitted); see also Shepard v.
United States, 544 U.S. 13, 16 (2005) (“generally limit[ing]”
2
The modified categorical approach is not distinct from the
categorical approach, but rather a “tool for implementing the
categorical approach.” Descamps v. United States, 133 S. Ct.
2276, 2284 (2013).
5
a court “to examining the statutory definition, charging
document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the
defendant assented”). But “[o]ff limits to the adjudicator . . .
is any inquiry into the particular facts of the case.” Mellouli,
135 S. Ct. at 1986 n.4.
B.
Singh is a citizen of India who was admitted to the
United States as a lawful permanent resident in 2009. He ran
two convenience stores in Clearfield County, Pennsylvania.
In November 2011, Pennsylvania State Police troopers
searched his stores for illegal substances. As a result of these
searches, almost one year later, the Clearfield County District
Attorney filed two separate criminal informations against
Singh, charging him with violating 35 P.S. § 780-113(a)(30),
which outlaws “the manufacture, delivery, or possession with
intent to manufacture or deliver, a controlled substance . . . or
knowingly creating, delivering, or possessing with intent to
deliver, a counterfeit controlled substance,” (2) conspiring to
violate § 780-113(a)(30), in violation of Pennsylvania’s
conspiracy statute, 18 Pa. C.S.A. § 903(a)(1), and (3)
violating 35 P.S. § 780-113(a)(16), which outlaws
“[k]nowingly or intentionally possessing a controlled or
counterfeit substance.” AII-224 to -225.3 The informations
did not specify the substance in question.
On May 1, 2013, Singh pleaded guilty to one count of
violating § 780-113(a)(30) and one count of conspiring to
3
The longer criminal information charged Singh with two
counts of each of these offenses. See AII-224 to -225.
6
violate § 780-113(a)(30). Both Singh and the District
Attorney signed a “Negotiated Plea Agreement and Guilty
Plea Colloquy” describing these counts as involving a “PA
Counterf[e]it Substance – Non Fed.” AII-239. Singh also
signed a separate form document titled “Guilty Plea
Colloquy.” AII-241 to -244. Paragraph 43 of the Guilty Plea
Colloquy reads: “Do you agree that the facts set forth in the
Criminal Complaint and Affidavit of Probable cause filed
against you are an accurate statement of your role in regard to
the charges to which you are pleading guilty?” AII-243 ¶ 43.
Singh circled “YES.” Id.
The transcript of Singh’s oral plea colloquy indicates
he pled guilty to “possession with intent to deliver a
counterfeit substance under Pennsylvania law but not under
federal law” and “criminal conspiracy to commit possession
with the intent to deliver, a counterfeit substance, which is
designated a counterfeit substance, under Pennsylvania law
but not under federal law.” AII-299. The transcript of the oral
plea colloquy, like the informations, did not specify the
substance in question. Singh was sentenced to an indefinite
term of imprisonment not to exceed one year less one day.
On April 17, 2014, the Department of Homeland
Security (DHS) began removal proceedings against Singh
under the INA. DHS charged Singh as removable under four
sets of statutory provisions: (1) 8 U.S.C. § 1227(a)(2)(A)(iii),
for being convicted of an aggravated felony as defined in 8
U.S.C. § 1101(a)(43)(B) (the possession offense); (2) 8
U.S.C. § 1227(a)(2)(B)(i), for being 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
7
Title 21)”; (3) 8 U.S.C. § 1227(a)(2)(A)(i), for being
convicted of a “crime involving moral turpitude” (“CIMT”);
and (4) 8 U.S.C. § 1227(a)(2)(A)(iii) (again), for being
convicted of an aggravated felony as defined in 8 U.S.C. §
1101(a)(43)(U) (the conspiracy offense).
On June 18, 2014, an immigration judge (IJ) held
Singh was removable under sections 1227(a)(2)(A)(iii) and
1227(a)(2)(B)(i). To find Singh removable under section
1227(a)(2)(B)(i), the IJ applied the modified categorical
approach “to determine whether the offense for which [Singh]
was convicted ‘relates to’ a controlled substance as defined in
21 U.S.C. § 802.” AII-276. Looking to the criminal complaint
against Singh, the IJ identified the substance Singh was
convicted of possessing as JWH-122, a “cannabimimetic
agent.” AII-277. The IJ noted JWH-122 “is listed as a
schedule I controlled substance under the Controlled
Substances Act” and accordingly found Singh was
removable. Id. The IJ also applied the modified categorical
approach to hold Singh was removable under section
1227(a)(2)(A)(iii) for being convicted of an aggravated
felony. Five days later, the IJ found Singh removable under
section 1227(a)(2)(A)(i) as well.
Singh filed a motion to reopen and reconsider with the
IJ. In support of his motion, Singh filed a “joint stipulation
and clarification” between Singh’s attorney and William A.
Shaw, Jr., the Clearfield County District Attorney, indicating
that: (1) the Guilty Plea Colloquy form is a standard form
used by the Clearfield County Court of Common Pleas in the
entry of a plea; (2) paragraph 43 of the form “refers generally
to the underlying factual allegations against the Defendant
and do[es] not constitute an admission of any specific facts
8
except those to which Defendant is actually pleading guilty”;
(3) “[i]n this case Defendant [Singh] plead[ed] only to the
delivery of an unidentified counterfeit substance under
Pennsylvania law”; and (4) “it is the understanding of both
the defendant and the Commonwealth that the unidentified
substance was neither a counterfeit [n]or a controlled
substance under federal law.” AII-133. The IJ did not rule on
this motion.
Singh then appealed to the BIA, which construed his
unadjudicated motion to reopen as a motion to remand,
granted it, and remanded the matter for an IJ to consider the
“joint stipulation and clarification” in the first instance. AII-
072 to -074. On remand, a different IJ found Singh removable
as charged. Singh again appealed to the BIA.
On appeal, the BIA considered only whether Singh
was removable under 8 U.S.C. 1227(a)(2)(A)(iii) for being
convicted of an aggravated felony for the possession offense.
It did not consider whether the conspiracy offense was also an
aggravated felony. Because the BIA held Singh was
removable for being convicted of an aggravated felony, it
“f[ou]nd it unnecessary to decide” whether Singh was also
removable under sections 1227(a)(2)(A)(i) and (2)(B)(i). AI-4
n.1.
The BIA said it would apply the categorical approach
described in Moncrieffe. It noted Moncrieffe’s qualification
that “there must be a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct
that falls outside the generic definition of a crime.” AI-5
(quoting Moncrieffe, 133 S. Ct. at 1685 (internal quotation
marks omitted)). The BIA stated Singh was convicted of
9
“knowingly . . . possessing with intent to deliver a counterfeit
controlled substance as well as conspiracy to do so.” Id.
(internal quotation marks omitted).
The BIA described its initial task under the categorical
approach as deciding “whether possession of a mislabeled
controlled substance with intent to transfer it to another
person in violation of § 780-113(a)(30) is necessarily conduct
punishable as a Federal felony.” AI-6. It held Singh’s
“conviction record gave the Immigration Judge good reason
to believe that the [substance] at issue in his case was a
Federally controlled substance at the time of his conviction.”
AI-7. The BIA looked to what it called Singh’s “plea
agreement” and said it contained “an affirmative stipulation
that the facts set forth in the Criminal Complaint and
Affidavit of Probable cause filed against [Singh were] an
accurate statement of [his] role in regard to the charges to
which [he was] pleading guilty.” Id. (internal quotation marks
omitted). The BIA further stated that “[t]he attached Criminal
Complaint and Affidavit of Probable Cause both identif[ied]
the offending substance at issue in the respondent’s case as
‘JWH-122,’ a synthetic cannabinoid that was added to the
Federal controlled substance schedules by name on July 9,
2012.” Id. (internal citation omitted).
Finding no “reported decision of a Pennsylvania court
in which a defendant was convicted . . . [for] conduct
involving a substance that was not included in the Federal
controlled substance schedules,” AI-6, and that Singh’s own
case did not involve that kind of substance, the BIA held
“there [wa]s no ‘realistic probability’ that Pennsylvania
actually prosecutes people under § 780-113(a)(30) for
misconduct involving substances that are not federally
10
controlled,” AI-8. Accordingly, the BIA concluded DHS
carried its burden of proving by clear and convincing
evidence that Singh’s offense of conviction was an
aggravated felony, and dismissed Singh’s appeal. Singh
petitioned us for review.
II.
The IJ had jurisdiction under 8 U.S.C. § 1229a. The
BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and
1240.15. We have jurisdiction under 8 U.S.C. § 1252(a).
Although “no court shall have jurisdiction to review any final
order of removal against an alien who is removable” for
having been convicted of an “aggravated felony,” id. §
1252(a)(2)(C), we have jurisdiction to determine “whether the
necessary jurisdiction-stripping facts are present in a
particular case,” including “whether [the alien] has been
convicted of one of the enumerated offenses,” Borrome v.
Att’y Gen. of the U.S., 687 F.3d 150, 154 (3d Cir. 2012).
“When the BIA issues its own decision on the merits,
rather than a summary affirmance, we review its decision, not
that of the IJ.” Chavez-Alvarez v. Att’y Gen. U.S., 783 F.3d
478, 482 (3d Cir. 2015) (internal quotation marks omitted).
“We may consider the opinion of the IJ only insofar as the
BIA deferred to it.” Id. (internal quotation marks omitted).
Whether an alien’s offense is an aggravated felony “is
reviewed de novo as it implicates a purely legal question that
governs the appellate court’s jurisdiction.” Restrepo v. Att’y
Gen. of the U.S., 617 F.3d 787, 790 (3d Cir. 2010).
III.
11
A.
The BIA applied the categorical approach, rather than
the modified categorical approach, to determine whether
Singh was convicted of an aggravated felony. See AI-8
(“[W]e find it unnecessary to conduct a ‘modified
categorical’ inquiry in this matter.”). Although Singh never
squarely contends in his opening brief that this was error, he
suggests that in cases involving section 780-113(a)(30), “the
categorical and modified-categorical approach must be
employed to identify the type of substance involved.” Br.
Appellant 27. We treat this as a request to apply the modified
categorical approach. The government also says the modified
categorical approach is proper, requesting that we “remand to
allow the Board to apply the modified categorical analysis in
the first instance.” Resp’t’s Answering Br. 9.
We agree with both Singh and the government that the
BIA should have applied the modified categorical approach.
In a recent immigration case, we held section 780-113(a)(30)
is divisible “with regard to both the conduct and the
controlled substances to which it applies.” Bedolla Avila v.
Att’y Gen. U.S., No. 15-1860, 2016 WL 3443112, at *3 (3d
Cir. June 23, 2016). Accordingly, reliance on the modified
categorical approach is proper, and the BIA erred in
concluding that it was “unnecessary to conduct a ‘modified
categorical’ inquiry in this matter.” AI-8.
B.
The government contends we should remand this
matter to the BIA to conduct the modified categorical analysis
in the first instance. It contends Singh’s “challenge to the
12
immigration judge’s analysis under the modified categorical
approach is not properly before the Court” because “[t]he
Board did not uphold the immigration judge’s analysis, and
the Court reviews the Board’s decision and only the aspects
of the immigration judge’s decision that the Board
considered.” Resp’t’s Answering Br. 13 n.4. But the BIA
attempted to answer the same question with which we are
faced: whether Singh’s conviction under section 780-
113(a)(30) is an aggravated felony. And whether that is so “is
reviewed de novo as it implicates a purely legal question.”
Restrepo, 617 F.3d at 790. Accordingly, we will address
whether Singh’s conviction is an aggravated felony under the
modified categorical approach. 4
C.
1.
4
We further note the BIA contended it was not applying the
modified categorical approach, but its analysis employed a
feature of that approach. Section 780-113(a)(30) outlaws “the
manufacture, delivery, or possession with intent to deliver, a
controlled substance . . . or knowingly creating, delivering, or
possessing with intent to deliver, a counterfeit controlled
substance.” The BIA specified “it is undisputed” that Singh
was convicted of “knowingly . . . possessing with intent to
deliver a counterfeit controlled substance,” rather than
“creating” or “delivering” such a substance. AI-5 (emphasis
added); see also Commonwealth v. Mohamud, 15 A.3d 80, 90
(Pa. Super. Ct. 2010) (describing possession as an “element”
of section 780-113(a)(30)).
13
Under the modified categorical approach, an
adjudicator must “determine which particular offense the
noncitizen was convicted of.” Moncrieffe, 133 S. Ct. at 1684.
The BIA addressed only Singh’s conviction under section
780-113(a)(30). That section outlaws “the manufacture,
delivery, or possession with intent to manufacture or deliver,
a controlled substance . . . or knowingly creating, delivering,
or possessing with intent to deliver, a counterfeit controlled
substance.” 35 P.S. § 780-113(a)(30). As the BIA noted,
Pennsylvania law defines a counterfeit controlled substance to
mean a controlled substance:
which, or the container or labeling of which,
without authorization, bears the trademark,
trade name, or other identifying mark, imprint,
number, or device, or any likeness thereof, of a
manufacturer, distributor, or dispenser other
than the person or persons who in fact
manufactured, distributed, or dispensed such
substance and which thereby is falsely
purported or represented to be the product of, or
to have been distributed by, such other
manufacturer, distributor, or dispenser.
35 P.S. § 780-102(b). Pennsylvania law defines a controlled
substance, in turn, as “a drug, substance, or immediate
precursor included in Schedules I through V of [the
Pennsylvania Drug and Alcohol Abuse Control Act
(PDAACA)].” 35 P.S. § 780-102(b). Those schedules are
codified at 35 P.S. § 780-104.
“The first task for a . . . court faced with an
alternatively phrased statute is . . . to determine whether its
14
listed items are elements or means.” Mathis, 136 S. Ct. at
2256. Elements are “the ‘constituent parts’ of a crime’s legal
definition—the things the ‘prosecution must prove to sustain
a conviction.’” Id. at 2248 (quoting Black’s Law Dictionary
634 (10th ed. 2014)). If the listed items “are elements, the
court should do what we have previously approved: review
the record materials to discover which of the enumerated
alternatives played a part in the defendant’s prior conviction,
and then compare that element (along with all others) to those
of the generic crime.” Id. at 2256. “But if instead they are
means, the court has no call to decide which of the statutory
alternatives was at issue in the earlier prosecution.” Id.
When a ruling from an “authoritative source[] of state
law” resolving this means-or-elements question “exists, a . . .
judge need only follow what it says.” Id. Here, we have that
kind of ruling from the Superior Court of Pennsylvania. 5 In
5
Ordinarily, in matters of state substantive law, we look to
“how the highest court of that state”—here, the Supreme
Court of Pennsylvania—“would decide the relevant legal
issues.” In re Wettach, 811 F.3d 99, 114 (3d Cir. 2016)
(internal quotation marks omitted). But “[w]here an
intermediate appellate state court rests its considered
judgment upon the rule of law which it announces, that is a
datum for ascertaining state law which is not to be
disregarded by a federal court unless it is convinced by other
persuasive data that the highest court of the state would
decide otherwise.” Sheridan v. NGK Metals Corp., 609 F.3d
239, 254 (3d Cir. 2010) (ultimately quoting West v. Am. Tel.
& Tel. Co., 311 U.S. 223, 237 (1940)). Here, there is no
opinion or other “persuasive data” on point from the Supreme
15
Commonwealth v. Swavely, a defendant was convicted under
section 780-113(a)(30) of “possession with intent to deliver
and delivery of a [Pennsylvania] Schedule II controlled
substance (Tuinal) and possession with intent to deliver and
delivery of a [Pennsylvania] Schedule IV controlled
substance (Talwin).” 554 A.2d 946, 947 (Pa. Super. Ct.
1989). The court held “[e]ach offense includes an element
distinctive of the other, i.e. the particular controlled
substance.” Id. at 949. Accordingly, drug identity—“the
particular controlled substance” at issue—is an element of
section 780-113(a)(30).
This holding is consistent with the weight of our prior
precedent and other judicial authority. In Bedolla Avila, we
held section 780-113(a)(30) “is divisible with regard to both
the conduct and the controlled substances to which it
applies.” 2016 WL 3443112, at *3 (emphasis added). In
United States v. Abbott, we held “the type of drug, insofar as
it increases the possible range of penalties, is an element” of
section 780-113(a)(30). 748 F.3d 154, 159 (3d Cir. 2014).
And in United States v. Tucker, we stated “[p]ossession (or
manufacture, or delivery) of a ‘controlled substance’ is an
element of the [section 780-113(a)(30)] offense; to prove it,
the prosecution must prove that the substance in question was
one of those enumerated in Pennsylvania’s controlled
substance schedules.” 703 F.3d 205, 215 (3d Cir. 2012). 6
Court of Pennsylvania, so it is appropriate to rely on a
decision of the Superior Court of Pennsylvania.
6
In Tucker, we also “rejected” the contention “that
Commonwealth v. Kelly, 487 Pa. 174 . . . (1979), stands for
the proposition that the fact finder does not need to find
which drug type was involved in the § 780-113(a)(30)
16
Finally, the Ninth Circuit has held a similar list of controlled
substances consists of alternative elements, and is accordingly
divisible. See Coronado v. Holder, 759 F.3d 977, 984–85 (9th
Cir. 2014), cert. denied, 135 S. Ct. 1492 (2015).
2.
Because drug identity is an element of a conviction
under section 780-113(a)(30), next, we must “do what [the
Supreme Court] ha[s] previously approved: review the
[Shepard-approved] record materials to discover which of the
enumerated alternatives played a part in the defendant’s prior
conviction, and then compare that element (along with all
others) to those of the generic crime.” Mathis, 136 S. Ct. at
2256. “Whether one of these Shepard-approved documents
‘contains sufficient information to permit a conclusion about
the character of the defendant’s previous conviction will vary
from case to case.’” United States v. Marrero, 743 F.3d 389,
395 (3d Cir. 2014) (quoting United States v. Johnson, 587
F.3d 203, 213 (3d Cir. 2009)).
Here, documents both Moncrieffe and Shepard
identified as relevant to our inquiry in guilty-plea cases—
Singh’s plea agreement and plea colloquy—contain sufficient
information to permit a conclusion about the character of
Singh’s previous conviction. Singh’s “Negotiated Plea
Agreement and Guilty Plea Colloquy” describes his
conviction as involving a “PA Counterf[e]it Substance – Non
Fed.” AII-239. And the transcript of Singh’s oral plea
colloquy indicates he pled guilty to “possession with intent to
violation.” Abbott, 748 F.3d at 159 n.5 (citing Tucker, 703
F.3d at 215–16).
17
deliver a counterfeit substance under Pennsylvania law but
not under federal law” and “criminal conspiracy to commit
possession with the intent to deliver, a counterfeit substance,
which is designated a counterfeit substance, under
Pennsylvania law but not under federal law.” AII-299. These
documents permit us to conclude that whichever drug identity
Singh’s previous conviction involved, it was not a drug
identity listed as a federal controlled substance. 7
“[C]ompar[ing] th[e] element” of drug identity “(along
with all others) to those of the generic crime,” Mathis, 136 S.
Ct. at 2256, we conclude the elements of Singh’s crime of
conviction do not “sufficiently match” the elements of the
generic federal offense, id. at 2248. That is, Singh’s crime of
conviction does not “categorically fit[] within the ‘generic’
federal definition of a corresponding aggravated felony.”
Moncrieffe, 133 S. Ct. at 1684.
The relevant federal “corresponding aggravated
felony” here is “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). As we have noted, a “drug
trafficking crime” is defined as “any felony punishable under
the Controlled Substances Act (21 U.S.C. [§] 801 et seq.).” 18
U.S.C. § 924(c)(2). And the Controlled Substances Act
(CSA) outlaws “knowingly . . . posses[sing] with intent to
distribute or dispense, a counterfeit substance.” 21 U.S.C. §§
7
Accordingly, we have no need to, and do not, consider
whether the form document titled “Guilty Plea Colloquy”
amounts to a “comparable judicial record of the factual basis
for the plea” that would qualify as a Shepard document.
18
841(a), (a)(2). This is the appropriate generic federal offense
analog for convictions for “knowingly possessing with intent
to deliver a counterfeit controlled substance” under section
780-113(a)(30).
The CSA defines a “counterfeit substance” as:
a controlled substance which, or the container
or labeling of which, without authorization,
bears the trademark, trade name, or other
identifying mark, imprint, number, or device, or
any likeness thereof, of a manufacturer,
distributor, or dispenser other than the person or
persons who in fact manufactured, distributed,
or dispensed such substance and which thereby
falsely purports or is represented to be the
product of, or to have been distributed by, such
other manufacturer, distributor, or dispenser.
21 U.S.C. § 802(7). The CSA further defines “controlled
substance” as “a drug or other substance, or immediate
precursor, included in schedule I, II, III, IV, or V of part B of
[title 21, chapter 13, subchapter I].” 21 U.S.C. § 802(6).
These schedules are codified at 21 C.F.R. § 1308.11 to .15.
By definition, a “PA Counterf[e]it Substance – Non Fed,”
AII-239, or a “counterfeit substance under Pennsylvania law
but not under federal law,” AII-299, cannot be a substance
listed on one of these schedules. 8 Accordingly, Singh’s crime
8
The BIA suggested “Pennsylvania courts and prosecutors do
not speak authoritatively as to which substances are included
in or excluded from the Federal controlled substance
schedules.” AI-7. It suggested “State courts and prosecutors
19
of conviction does not sufficiently match the elements of the
generic federal offense, 9 and his conviction under section
780-113(a)(30) was not for an aggravated felony. The BIA
clearly have authority to identify which particular substance a
defendant was convicted of possessing or distributing, but
whether that substance is Federally controlled is a matter for
the Federal authorities to decide.” Id. In these statements, the
BIA misapprehends the roles of the state court, federal
authorities, and the federal courts in controlled-substance
cases under the modified categorical approach. Both
Moncrieffe and Shepard expressly direct federal adjudicators,
whether sitting on the BIA or on the federal courts, to look to
certain state-court records, like plea colloquies, when
applying the modified categorical approach. Accordingly,
relying on Shepard-approved state-court records to determine
whether the substance in a section 780-113(a)(30) case is
federally controlled is permissible, even when those records
do not identify the drug’s identity. Furthermore, to the extent
the BIA purported to fashion a new standard requiring only
that the IJ have “good reason to believe,” AI-7, the substance
at issue was a federally controlled substance, we reject it as
inconsistent with the requirement that the government prove
removability by “clear and convincing evidence,” 8 U.S.C. §
1229a(c)(3)(A).
9
Singh raised before us the question of whether “the proper
date for determining whether [his conviction] constituted an
aggravated felony was the date of the violation,” or some
other date, like the date of conviction. Br. Appellant 33.
Because the Shepard documents here preclude the possibility
that there is a sufficient match in Singh’s case, regardless of
which date is appropriate, we have no need to, and do not,
decide this question.
20
erred in conducting a “realistic probability” inquiry, and
concluding otherwise. 10
IV.
Accordingly, we will grant the petition for review,
vacate the order of the BIA, and remand the case to the BIA
for further proceedings consistent with this opinion. 11
10
We recognize Moncrieffe approved of something akin to a
“realistic probability” inquiry. But in that case (and in
Duenas-Alvarez), the relevant elements were identical. Here,
the elements of the crime of conviction are not the same as
the elements of the generic federal offense. The Supreme
Court has never conducted a “realistic probability” inquiry in
such a case. Accordingly, we believe this is a case where the
“realistic probability” language is simply not meant to apply.
11
We decline to address, and express no opinion on, any of
the other arguments Singh raises on appeal.
21