17‐1567‐ag
Hylton v. Sessions
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2017
No. 17‐1567‐ag
ANTOINE L. HYLTON, A/K/A ANTOINE HYLTON
Petitioner,
v.
JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL,
Respondent.
ARGUED: JUNE 27, 2018
DECIDED: JULY 20, 2018
Before: JACOBS, RAGGI, and HALL, Circuit Judges:
Antoine Hylton, a Jamaican national, petitions for review of the order of
the Board of Immigration Appeals, which found him ineligible for cancellation of
removal because his prior state conviction for sale of marijuana in the third
degree constituted an aggravated felony under the Immigration and Nationality
Act. The single issue on appeal is whether the minimum offense conduct under
Hylton’s statute of conviction, New York Penal Law (“NYPL”) § 221.45, is
necessarily punishable as a federal felony by the Controlled Substances Act.
Because NYPL § 221.45 explicitly extends to the distribution of less than an ounce
of marijuana without remuneration, it is punishable as a federal misdemeanor.
Hylton’s crime of conviction is therefore not categorically an aggravated felony.
We GRANT the petition, VACATE the opinion of the BIA, and REMAND for
further consideration consistent with this opinion.
GERARDO ROMO, KYLE BARRON,
Washington Square Legal Services, Inc.,
New York, NY (Nancy Morawetz,
Washington Square Legal Services, Inc.,
New York, NY; Su Yon Yi, Queens Law
Associates, Public Defenders, Forest Hills,
NY, on the brief), for Petitioner.
ALEXANDER J. LUTZ, Trial Attorney, Office
of Immigration Litigation, for Chad A.
Readler, Acting Assistant Attorney General
(Anthony C. Payne, Assistant Director,
Office of Immigration Litigation, on the
brief), Washington, D.C., for Respondent.
DENNIS JACOBS, Circuit Judge:
Antoine Hylton, a Jamaican national, petitions for review of the May 9,
2017 order of the Board of Immigration Appeals (“BIA”), which found him
ineligible for cancellation of removal because his prior state conviction for sale of
marijuana in the third degree constituted an aggravated felony under the
Immigration and Nationality Act (“INA”). The single issue on appeal is
whether the minimum offense conduct under Hylton’s statute of conviction,
New York Penal Law (“NYPL”) § 221.45, is necessarily punishable as a federal
felony by the Controlled Substances Act (“CSA”). See Martinez v. Mukasey,
551 F.3d 113, 118‐19 (2d Cir. 2008).
“If a noncitizen’s conviction for a marijuana distribution offense fails to
establish that the offense involved either remuneration or more than a small
amount of marijuana,” the offense is punishable as a federal misdemeanor.
2
Moncrieffe v. Holder, 569 U.S. 184, 206 (2013) (referencing 21 U.S.C. § 841(b)(4),
which states that notwithstanding federal law making trafficking in any quantity
of marijuana a felony, “distributing a small amount of mari[j]uana for no
remuneration shall be treated” as a misdemeanor). The CSA does not define “a
small amount.” We now hold that an ounce, or roughly 30 grams (28.35 in
point of fact), is a “small amount” of marijuana within the meaning of 21 U.S.C. §
841(b)(4). Our ruling is in keeping with the decisions of our sister circuits, the
commentary of the BIA, the structure of the relevant federal statutes, and the
principle of personal use. Because NYPL § 221.45 explicitly extends to the
distribution of less than an ounce of marijuana without remuneration, it is
punishable as a federal misdemeanor. See Moncrieffe, 569 U.S. at 206; Castro
Rodriguez, 25 I. & N. Dec. 698, 703 (2012). The BIA decision rested on the
observation that there was no “realistic probability” that New York would apply
NYPL § 221.45 to conduct outside the generic federal felony. That was error
because the state statute on its face punishes conduct classified as a federal
misdemeanor.
Hylton’s crime of conviction is therefore not categorically an aggravated
felony. Hylton is removable, but not precluded from equitable relief at the
discretion of the immigration judge (“IJ”). The IJ weighed equities and granted
cancellation of removal, a ruling that the BIA did not reach, having found
ineligibility for that relief. We GRANT the petition, VACATE the opinion of
the BIA, and REMAND for the BIA to review the IJ’s grant of cancellation of
removal.
I
Antoine Hylton was admitted to the United States as a lawful permanent
resident in 1989. He is married to a U.S. Citizen and has two U.S. citizen
brothers, a U.S. citizen mother, and three U.S. citizen‐children whom he
supports. In 2011, Hylton was convicted of criminal possession of marijuana in
the third degree and criminal sale of marijuana in the third degree. See NYPL
§§ 221.20, 221.45. He was detained by the Department of Homeland Security
(“DHS”) in 2013 and charged as removable for having been convicted of an
aggravated felony drug trafficking offense. See 8 U.S.C. § 1227(a)(2)(A)(iii).
3
When Hylton appeared before the IJ, he conceded removability, but
challenged the aggravated felony charge in order to become eligible for
cancellation of removal. The IJ ruled as a matter of law that Hylton was not an
aggravated felon and made factual findings that Hylton was entitled to relief
from deportation. Specifically, the IJ conducted an analysis under the
categorical approach, concluded that the minimum conduct criminalized under
NYPL § 221.45 includes the non‐remunerative transfer of 30 grams or less of
marijuana, and ruled accordingly that this conduct fell outside the class of
aggravated felony that constitutes “illicit trafficking in a controlled substance.”
8 U.S.C. § 1101(a)(43)(B). The IJ then weighed the discretionary factors to
determine whether Hylton warranted equitable relief. In view of Hylton’s
lengthy residence and significant family ties, the IJ concluded that the “positives
outweigh[ed] the negatives” and granted cancellation of removal. CAR 121.
The Government appealed to the BIA. Reviewing the IJ’s aggravated
felony ruling de novo, the BIA held that Hylton’s conviction “does not fall within
the misdemeanor exception contained at 21 U.S.C. § 841(b)(4)” and is therefore
an aggravated felony. CAR 5. Instead of conducting an analysis under the
categorical approach, the BIA reasoned that “there is not a realistic probability
that New York would apply NYPL § 221.45 to conduct that falls outside the
generic definition of a felony under the CSA.” Id. at 6. Because the BIA
ordered Hylton removed as an aggravated felon, it did not reach the IJ’s grant of
cancellation of removal.
Hylton timely petitioned this Court for review. This Court’s limited
jurisdiction over Hylton’s petition of the BIA order is to review “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). “Whether a conviction
qualifies as an aggravated felony is a question of law, which we review de novo.”
Martinez, 551 F.3d at 117 (internal citation omitted).
II
“When the Government alleges that a state conviction qualifies as an
‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’
to determine whether the state offense is comparable to an offense listed in the
4
INA.” Moncrieffe, 569 U.S. at 190; see Obeya v. Sessions, 884 F.3d 442, 447 n.4
(2d Cir. 2018). “Under the categorical approach, courts identify the minimum
criminal conduct necessary for conviction under a particular statute” by “looking
only to the statutory definitions‐‐i.e., the elements‐‐of the offense, and not to the
particular underlying facts.” United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018)
(quoting United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006) and Descamps v.
United States, 570 U.S. 254, 261 (2013) (brackets 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
th[e] acts’ criminalized, and then determine whether even those acts are
encompassed by the generic federal offense.” Moncrieffe, 569 U.S. at 190‐91
(quoting Johnson v. United States, 559 U.S. 133, 137 (2010)). “The very basis of
the categorical approach is that the sole ground for determining whether an
immigrant was convicted of an aggravated felony is the minimum criminal
conduct necessary to sustain a conviction under a given statute.” Martinez, 551
F.3d at 121 (citing Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001)) (emphasis
in original).
The aggravated felony at issue is illicit trafficking in a controlled substance.
See 8 U.S.C. § 1101(a)(43)(B); 18 U.S.C. §§ 924(c)(2), 3559(a)(5). When the
Government classifies a noncitizen as an aggravated felon on the basis of a drug
trafficking offense, the categorical inquiry is “whether the record of conviction of
the predicate offense necessarily establishes conduct that the CSA, on its own
terms, makes punishable as a felony.” Moncrieffe, 569 U.S. at 197‐98 (citing
Carachuri‐Rosendo v. Holder, 560 U.S. 563, 581 (2010)); see Lopez v. Gonzales,
549 U.S. 47, 60 (2006) (“a state offense constitutes a felony punishable under the
[CSA] only if it proscribes conduct punishable as a felony under that federal
law.”) (internal quotation marks omitted); Harbin v. Sessions, 860 F.3d 58, 68 (2d
Cir. 2017) (“An alien’s actual conduct is irrelevant to the inquiry, as the
adjudicator must presume that the conviction rested upon nothing more than the
least of the acts criminalized under the statute.”).
“We begin with the relevant conduct criminalized by the CSA.”
Moncrieffe, 569 U.S. at 192. Marijuana distribution is a CSA offense that can be
either a felony (see 21 U.S.C. §§ 841(a), 841(b)(1)) or a misdemeanor (see 21 U.S.C.
5
§ 841(b)(4)). “[A]ny person who violates” the CSA “by distributing a small
amount of marijuana for no remuneration” has committed a misdemeanor. 21
U.S.C. § 841(b)(4). As we have already observed, “[i]f a noncitizen’s conviction
for a marijuana distribution offense fails to establish that the offense involved
either remuneration or more than a small amount of marijuana, the conviction is
not for an aggravated felony under the INA.” Moncrieffe, 569 U.S. at 206; see,
e.g., Guevara‐Solorzano v. Sessions, 891 F.3d 125, 132 (4th Cir. 2018).
The CSA does not define a “small amount” of marijuana. Still, several
circuits have held that 30 grams is a “small amount” within the meaning of 21
U.S.C. § 841(b)(4).1 See Ming Wei Chen v. Sesions, 864 F.3d 536, 538, 540 (7th
Cir. 2017) (holding that a “shade above 30 grams” would constitute a “small
amount” of marijuana, and consequently, noncitizen petitioner was not an
aggravated felon because his conviction, which proscribed the nonremunerative
distribution of any amount greater than 30 grams, captured conduct within the
CSA’s misdemeanor provision); Steele v. Blackman, 236 F.3d 130, 137 (3d Cir.
2001) (holding that 30 grams is a small amount of marijuana); accord Jeune v.
Attorney General, 476 F.3d 199, 205 (3d Cir. 2007). And the BIA has posited 30
grams as a “useful guidepost” for a “small amount” of marijuana. See Castro
Rodriguez, 25 I. & N. Dec. at 703; Moncrieffe, 569 U.S. at 194 n.7 (citing Castro
Rodriguez, 25 I. & N. Dec. at 703).
The BIA in Castro Rodriguez located support for its 30‐gram figure in a
possession subsection of the INA that exempts from the definition of a
“controlled substance” offense the possession of “30 grams or less of marijuana.”
8 U.S.C. § 1227(a)(2)(B)(i). Section 1227(a)(2)(B)(i) of the INA and 21 U.S.C.
§ 841(b)(4) share a similar function within their respective statutory schemes:
each serves as a reference point for the immigration consequence of a state drug
conviction. See Mellouli v. Lynch, 135 S.Ct. 1980, 1984 (2015) (explaining that a
1 As a penal statute, Section 841(b)(4) must state its proscriptions with sufficient
clarity to be understood both by citizens obliged to obey them and officials
charged with their enforcement. See Kolender v. Lawson, 461 U.S. 352, 353 &
n.1 (1983) (holding state misdemeanor statute unconstitutionally vague within
the meaning of the Due Process Clause).
6
noncitizen’s state conviction is not a deportable offense if the state statute
punishes conduct defined by 8 U.S.C. § 1227(a)(2)(B)(i)). So, as a matter of
statutory construction, there is some force to assigning 30 grams as a benchmark
“small amount” to align the treatment of marijuana quantities in the CSA to the
INA. Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000).
There are other, more intuitive reasons why the range 25 to 30 grams is
deemed “small.” (1) One ounce equals 28.35 grams, an equivalence noted by the
Fourth Circuit when it recently suggested that a statute that criminalizes the
transfer of 30 grams of marijuana for no remuneration is not an aggravated
felony. See Guevara‐Solorzano, 891 F.3d at 132 (observing that 30 grams, the
amount noted in Moncrieffe, is approximately one ounce). (2) In drafting the
CSA’s marijuana misdemeanor provision, Congress intended to include such
amounts that suggest personal use and social sharing, as opposed to large‐scale
commercial dealing. See United States v. Outen, 286 F.3d 622, 637‐38 (2d Cir.
2002); 21 U.S.C. § 841(b)(4).
We are convinced by the logic of this approach. We now hold that an
ounce (roughly 30 grams) or less of marijuana is a “small amount” within the
meaning of 21 U.S.C. § 841(b)(4).2
2
The BIA relied on dicta in Catwell v. Atty’ Gen. of U.S., 623 F.3d 199 (3d Cir.
2010), as support for limiting a “small amount of marijuana” to “no more than
one or two marijuana cigarettes.” Id. at 208‐09. The BIA’s reliance on Catwell is
unpersuasive. First, the BIA’s citation to Catwell departs without explanation
from the agency’s own observation that 30 grams is a “useful guidepost.”
Second, the Catwell court’s holding was that 120.5 grams of marijuana was not a
“small amount,” id. at 208, a weight four times the amount at issue in this case,
which would be punishable under NYPL § 221.50 as sale in the second degree, not
sale in the third degree under NYPL § 221.45, as in Hylton’s case. The Seventh
Circuit found Catwell similarly unhelpful, because 30 grams is far more akin to
the scenarios envisioned by Congress in drafting 21 U.S.C. § 841(b)(4) than 120.5
grams. Finally, the Third Circuit has already held that 30 grams is a “small
amount.” See Steele, 236 F.3d at 137‐38. It is odd, given this precedent, that the
7
We must next identify the minimum conduct punishable under the state
statute of conviction, NYPL § 221.45. Acosta, 470 F.3d at 135. The elements of
New York criminal sale of marijuana are familiar to this Court. See Martinez,
551 F.3d at 119 (holding that criminal sale of marijuana in the fourth degree is not
an aggravated felony). Hylton’s offense, sale in the third degree, makes it a
crime to “knowingly and unlawfully sell[] one or more preparations,
compounds, mixtures or substances containing marijuana [if] the preparations,
compounds, mixtures or substances are of an aggregate weight of more than
twenty‐five grams.” NYPL § 221.45.3 “[T]he definition of ‘sale’ under New
York law is a broad one that includes any form of transfer of a controlled
substance, whether or not the transfer was for money.” Martinez, 551 F.3d at
119 (quoting People v. Starling, 85 N.Y.2d 509 (1995)); see NYPL § 220.00(1)
(defining “sell” as “to sell, exchange, give or dispose of to another, or to offer or
agree to do the same”).
The minimum offense conduct under NYPL § 221.45 is therefore the
nonremunerative transfer of anything over 25 grams of a substance containing
marijuana. See Martinez, 551 F.3d at 121 (holding that the minimum conduct
punishable as criminal sale of marijuana in the fourth degree involved the
nonremunerative transfer of two grams of marijuana); see also Ming Wei Chen,
864 F.3d at 538 (explaining that the minimum offense conduct under a marijuana
distribution statute penalizing weight over 30 grams is “a hair over 30 grams”).
Comparing the minimum chargeable conduct under NYPL § 221.45 to the
elements of CSA marijuana distribution, we conclude that the state statute
punishes offenses that would not amount to a federal felony. See Harbin, 860
BIA would infer from Catwell that the Third Circuit would not consider 25 grams
a “small amount” of marijuana.
3 Criminal sale in the second degree, NYPL § 221.50, criminalizes, inter alia, the
sale of more than four ounces, or roughly 113.4 grams. Martinez, 551 F.3d at
120. In other words, NYPL § 221.45 covers the transfer of substances containing
marijuana with an aggregate weight of 25 to 113.4 grams.
8
F.3d at 68. NYPL § 221.45 punishes the distribution of “small amounts” of
marijuana, and remuneration is not an element of the conviction. By its plain
language, NYPL § 221.45 punishes conduct that is classified as a misdemeanor
under 21 U.S.C. § 841(b)(4). “As the categorical approach requires, we look no
further than to the fact that [Hylton’s] conviction could have been for precisely
the sort of nonremunerative transfer of small quantities of mari[j]uana that is only
a federal misdemeanor[.]” Martinez, 551 F.3d at 120.
Hylton’s crime of conviction is not categorically an aggravated felony, and
he is not an aggravated felon. Moncrieffe, 569 U.S. at 194‐95 (“Moncrieffe’s
conviction could correspond to either the CSA felony or the CSA misdemeanor.
Ambiguity on this point means that the conviction did not ‘necessarily’ involve
facts that correspond to an offense punishable as a felony under the CSA.
Under the categorical approach, then, Moncrieffe was not convicted of an
aggravated felony.”).
III
The BIA did not conduct an elements‐based categorical inquiry; instead, it
applied a “realistic probability” test. This was error. By its terms, NYPL
§ 221.45 punishes the transfer without remuneration of less than an ounce of
marijuana, which is not necessarily felonious under the CSA. The realistic
probability test is obviated by the wording of the state statute, which on its face
extends to conduct beyond the definition of the corresponding federal offense.
See Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (“[T]he elements of
Mathis’s crime of conviction ... cover a greater swath of conduct than the elements
of the relevant [federal] offense. Under our precedents, that undisputed
disparity resolves this case.”); see also United States v. Titties, 852 F.3d 1257, 1275
(10th Cir. 2017) (interpreting Mathis).
The requirement that a defendant show a “realistic probability” that “the
State would apply its statute to conduct that falls outside the generic definition of
a crime” operates as a backstop when a statute has indeterminate reach, and
where minimum conduct analysis invites improbable hypotheticals. Gonzales v.
Duenas‐Alvarez, 549 U.S. 183, 193 (2007). “Legal imagination” may conjure up
9
scenarios that lurk in the indeterminacy of statutory wording; but if so, courts can
require that the defendant “at least point to his own case or other cases in which
the state courts in fact did apply the statute in the special (nongeneric) manner for
which he argues.” Id. There is no such requirement, however, “when the
statutory language itself, rather than the application of legal imagination to that
language, creates the realistic probability that a state would apply the statute to
conduct beyond the generic definition.” Ramos v. U.S. Att’y Gen., 709 F.3d 1066,
1072 (11th Cir. 2013) (internal quotation marks omitted); see Singh v. Att’y Gen.,
839 F.3d 273, 286 n.10 (3d Cir. 2016) (“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.”); Chavez‐Solis v. Lynch, 803 F.3d 1004, 1010 (9th Cir. 2015) (“[W]hen a state
statute’s greater breadth is evident from its text, a petitioner need not point to an
actual case applying the statute of conviction in a non‐generic manner.”) (internal
quotation marks and citation omitted); see also Swaby v. Yates, 847 F.3d 62, 66 &
n.2 (1st Cir. 2017) (rejecting the Government’s “surprising view that, in applying
the categorical approach, state law crimes should not be given their plain
meaning).
Since the elements of NYPL § 221.45 are broader than the corresponding
federal felony, Hylton has satisfied any requirement to show that “New York
would apply its statute to conduct that falls outside” the definition of a federal
felony, and within the federal misdemeanor provision. Duenas‐Alvarez, 549
F.3d at 193; see Lopez, 549 U.S. at 60; Mathis, 136 S. Ct. at 2251; see also Jean‐Louis
v. Att’y Gen., 582 F.3d 462, 481 (3d Cir. 2009) (no realistic probability inquiry
when the statute’s “elements ... are clear, and the ability of the government to
prosecute a defendant under [the statute] is not disputed”); United States v.
Aparicio‐Soria, 740 F.3d 152, 158 (4th Cir. 2014) (en banc) (“We do not need to
hypothesize about whether there is a ‘realistic probability’ that Maryland
prosecutors will charge defendants engaged in [the broader conduct]; we know
that they can because the state’s highest court has said so.”).
There are cases in which a separate realistic probability inquiry remains
necessary because the elements of the state statute alone do not provide
sufficient guidance on its application. For example, courts have modified the
10
categorical approach to define the outer limits of a “crime of moral turpitude.”
Mata‐Guerrero v. Holder, 627 F.3d 256, 260 (7th Cir. 2010). And, in defining
state offenses as “crimes of violence” under the Armed Career Criminal Act
(“ACCA”), courts often look to case law to determine whether a predicate state
crime satisfies the “violent force” requirement of United States v. Johnson, 559
U.S. 133 (2010). See Hill, 890 F.3d at 57‐59; United States v. Jennings, 860 F.3d
450, 457‐61 (7th Cir. 2017). This is not such a case.
The Government relies on past BIA rulings such as Matter of Ferreira, 26 I.
& N. Dec. 415 (BIA 2014) to argue that we should look beyond what the statute
criminalizes on its face and undertake a more demanding and particular inquiry.
See also United States v. Castillo‐Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc).
Putting aside the practical challenges of implementing the Government’s
approach (which are considerable), it finds little purchase in Supreme Court
precedent or the law of this Circuit. Duenas‐Alvarez does not require the BIA to
conduct a separate realistic probability test in a case like this. Duenas‐Alvarez
dealt with a specific aiding‐and‐abetting theft statute, in which the boundaries of
the offense conduct were ill‐defined and the court was tasked with an interpretive
dilemma. 549 U.S. at 187, 193‐94. Since NYPL § 221.45 presents no such
vagaries, the “sensible caution against crediting speculative assertions regarding
the potentially sweeping scope of ambiguous state law crimes has no relevance to
a case like this.” Swaby, 847 F.3d at 66. By demanding that Hylton produce old
state cases to illustrate what the statute makes punishable by its text, “the
Government’s argument misses the point of the categorical approach and
‘wrenches the Supreme Court’s language in Duenas‐Alvarez from its context.’”
Aparicio‐Soria, 740 F.3d at 157 (internal quotations marks and citation omitted).
A pair of recent Supreme Court opinions clarified that, in applying the
categorical approach, an unambiguous state statute can be broader on its face
than its federal counterpart. See Mellouli, 135 S. Ct. at 1990 (“the Government’s
construction of the federal removal statute stretches to the breaking point,
reaching state‐court convictions ... in which no controlled substance as defined [in
the federal code] figures as an element of the offense”) (internal quotation marks
and citation omitted); Mathis, 136 S. Ct. at 2251 (no realistic probability test
considered when the state statute “cover[ed] a greater swath of conduct” by its
11
terms than the ACCA). This circuit likewise applies the categorical approach to
a controlled substance offense by comparing the conduct captured by the state
statute to the elements of the CSA crime without resort to a “realistic probability”
test or a catalog of state court decisions. Harbin, 860 F.3d at 68 (concluding that a
New York conviction is not an aggravated felony because the state statute, by its
terms, punishes conduct that is not criminal under the CSA); Obeya, 884 F.3d at
447 n.4. When the state law is facially overbroad, “we look no further[.]”
Martinez, 551 F.3d at 120.
Other circuits have registered nearly unanimous disagreement with the
approach taken by the BIA and urged by the Government in this case.4 That
approach faces consistent judicial hostility because it is fundamentally
inconsistent with formal categorical analysis (as opposed to, say, the modified
categorical approach), which resists placing a supplementary, individualized
burden on the noncitizen petitioner. See Martinez, 551 F.3d at 121 (“The
Government further attempts to avoid a straightforward application of the
categorical approach by arguing that it was Martinez’s burden to prove that his
state conviction would be punishable under 21 U.S.C. § 841(b)(4), and hence not
be an aggravated felony. This argument is unavailing.”). In consensus with the
majority of our sister circuits, we again decline to impose such a burden here.
IV
Our conclusion that NYPL § 221.45 is not an “aggravated felony” under 8
U.S.C. § 1227(a)(2)(A)(iii) does not foreclose removal for a noncitizen convicted of
4 See Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017); Jean–Louis v. Attʹy Gen., 582
F.3d 462, 481 (3d Cir. 2009); United States v. Aparicio–Soria, 740 F.3d 152, 158
(4th Cir. 2014) (en banc); United States v. Lara, 590 F. App’x 574, 584 (6th Cir.
2014); Ming Wei Chen v. Sessions, 864 F.3d 536, 538 (7th Cir. 2017); Ortiz v. Lynch,
796 F.3d 932 (8th Cir. 2015); Chavez‐Solis v. Lynch, 803 F.3d 1004, 1010 (9th Cir.
2015); United States v. Titties, 852 F.3d 1257 (10th Cir. 2017); Ramos v. U.S. Attʹy
Gen., 709 F.3d 1066, 1071–72 (11th Cir. 2013); but see Castillo‐Rivera, 853 F.3d 218
(5th Cir. 2017) (upholding the Government’s “realistic probability” inquiry to
assess whether a felony‐firearm possession statute is an aggravated felony).
12
that crime; NYPL § 221.45 is indisputably a deportable offense. All our holding
achieves is to leave open the possibility of equitable relief in the most deserving
cases, as Congress intended when it bifurcated removability from cancellation of
removal, and vested immigration judges with discretionary powers. This critical
distinction informs our serious and careful approach to the task of determining
whether a state offense qualifies as an aggravated felony, a label of substantial
consequence.
The IJ below saw fit to grant Hylton such discretionary relief in view of
significant ameliorating factors. The agency does not apply a categorical
approach in weighing cancellation of removal. There, the IJ and BIA may
certainly take the severity of an alien’s particular conduct into account. The
BIA’s review of this question was short‐circuited by its conclusion that Hylton’s
crime of conviction was an aggravated felony. We therefore remand to give the
BIA the opportunity to decide whether the IJ properly exercised its discretion to
grant cancellation of removal.
CONCLUSION
For the foregoing reasons, we hereby GRANT the petition, VACATE the
opinion of the BIA, and REMAND for the BIA to review the grant of cancellation
of removal.
13
Hylton v. Sessions
Combined Opinion