NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-2935
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GLENNIS ELIAS JUNIOR HARVE,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review from an Order of
The Board of Immigration Appeals
(Agency No. A047-224-684)
Immigration Judge: Daniel A. Morris
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 1, 2019
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Before: SHWARTZ, FUENTES, and FISHER, Circuit Judges.
(Opinion Filed: October 17, 2019)
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OPINION*
______________
SHWARTZ, Circuit Judge.
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Glennis Elias Junior Harve petitions for review of the Board of Immigration
Appeal’s (“BIA”) decision denying him cancellation of removal. Because Harve’s state
marijuana conviction is not a categorical match to a federal drug felony, he is not
disqualified from receiving such relief, and so we will grant the petition for review.
I
Harve is a native and citizen of Antigua and Barbuda and has lived in the United
States as a lawful permanent resident since 2001. In 2015, Harve was convicted of
possession with the intent to distribute marijuana under N.J. Stat. Ann. § 2C:35-5(a)(1),
(b)(11). The Department of Homeland Security initiated removal proceedings under the
Immigration and Nationality Act (“INA”) § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i),
for a conviction involving a controlled substance. Harve’s charge of removability was
sustained, and he applied for cancellation of removal.
The Immigration Judge (“IJ”) denied Harve’s application and ordered him
removed because his drug conviction made him statutorily ineligible for cancellation
under 8 U.S.C. § 1229b(a). The IJ examined Harve’s New Jersey statute of conviction
and concluded that Harve failed to show that his conviction did not match the Controlled
Substances Act’s (“CSA”) definition of a federal drug felony. See e.g., 21 U.S.C. § 841.
The IJ found that Harve did not carry his burden at the cancellation stage to prove his
state crime only “involved . . . a few grams” of marijuana and the CSA only exempts a
2
“small amount” of marijuana from felony classification. AR 141.1 The BIA adopted the
IJ’s reasoning and affirmed. Harve petitions for review.
II2
A
A petitioner bears the burden to prove his eligibility for cancellation of removal,
see Syblis v. Att’y Gen., 763 F.3d 348, 352 (3d Cir. 2014) (citing 8 U.S.C.
§ 1229a(c)(4)(A)(i)), including that he was lawfully admitted to the United States as a
permanent resident for no less than five years and continuously resided in the United
States for no less than seven years after admission, 8 U.S.C. § 1229b(a)(1)-(2).
An alien is ineligible for cancellation of removal if he is convicted of an
aggravated felony. Id. § 1229b(a)(3). We must therefore determine whether the
petitioner’s prior conviction constitutes an aggravated felony that would render him
1
The IJ also found that Harve’s conviction (1) did not meet the personal use
exception under the INA and (2) could not constitute an aggravated felony as an act of
illicit drug trafficking “because his conviction lacks a commercial element.” AR 137.
2
The IJ had jurisdiction under 8 C.F.R. § 1208.2, and the BIA had jurisdiction
over the appeal pursuant to 8 C.F.R. §§ 1003.1(b) and 1240.15. We have jurisdiction
under 8 U.S.C. § 1252(a).
Our review is typically restricted to the BIA’s decision, Abdulai v. Ashcroft, 239
F.3d 542, 549 (3d Cir. 2001), but where the BIA adopts the IJ’s opinion, we also review
the IJ’s opinion, Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). Where an
individual is subject to removal as a criminal, we may only review “constitutional claims
or questions of law,” 8 U.S.C. § 1252(a)(2)(C)-(D)); 8 U.S.C. § 1227(a)(2)(A)(iii); see
Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (en banc), such as whether a
conviction constitutes an aggravated felony, Singh v. Att’y Gen., 839 F.3d 273, 282 (3d
Cir. 2016), which we review de novo, Quao Lin Dong v. Att’y Gen., 638 F.3d 223, 227-
28 (3d Cir. 2011).
3
ineligible for relief.3 See Evanson v. Att’y Gen., 550 F.3d 284, 288-89 (3d Cir. 2008);
see also Singh v. Att’y Gen., 839 F.3d 273, 278 (3d Cir. 2016). To do this, we apply the
“categorical approach,” which requires us to compare the elements of the offense of
conviction with the corresponding generic federal felony.4 Moncrieffe v. Holder, 569
U.S. 184, 190 (2013). The fact-based inquiry concerning other components for
cancellation differs from the purely legal question presented by the categorical approach.5
See Marinelarena v. Barr, 930 F.3d 1039, 1049-50 (9th Cir. 2019) (en banc).
In this case, the IJ incorrectly focused on the facts underlying Harve’s crime of
conviction. See Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003) (“In evaluating
whether a state violation is analogous to a federal felony, we look to the elements of the
statutory state offense, not to the specific facts.”). In Moncrieffe, the Supreme Court
expressly rejected the idea that aliens have “an opportunity during immigration
proceedings to demonstrate that their predicate marijuana distribution convictions
involved only a small amount of marijuana and no remuneration,” because “such case-
specific factfinding in immigration court” “is entirely inconsistent with both the INA’s
text and the categorical approach.” 569 U.S. at 200. Therefore, the IJ erred.
3
The burden of proof for cancellation of removal is inapplicable to the purely
legal question of whether an alien has a disqualifying conviction rendering him ineligible
for such relief. Marinelarena v. Barr, 930 F.3d 1039, 1049 (9th Cir. 2019) (en banc).
4
Syblis is inapplicable here because it involved an “inconclusive record of
conviction” as it did not identify the substance involved, 763 F.3d at 356, in which case
we rejected “resort to the categorical approach,” to decide whether the petitioner’s state
controlled substance offense related to a controlled substance under federal law, id. at
357 n.12.
5
The analysis for identifying aggravated felonies is the same for removal and
cancellation of removal. Moncrieffe, 569 U.S. at 191 n.4.
4
B
We next consider the legal question of whether Harve’s conviction under N.J. Stat.
Ann. § 2C:35-5(a)(1), (b)(11) is a drug trafficking crime under the CSA and thus
constitutes an aggravated felony. 8 U.S.C. § 1101(a)(43) (defining aggravated felony as
“illicit trafficking in a controlled substance” or “drug trafficking crime” as defined by the
CSA); see Evanson, 550 F.3d at 288.6 A state drug conviction qualifies as an aggravated
felony if “it would be punishable as a felony under the [CSA].” Evanson, 550 F.3d at
288. Under the “hypothetical federal felony” test, we use the categorical approach to
“compare the offense of conviction to the [CSA] to determine if it is analogous to an
offense under [the CSA].” Id. at 289; see Moncrieffe, 569 U.S. at 190 (applying
categorical approach to determine whether a state drug offense is comparable to a CSA
felony). If the statute of conviction criminalizes a broader swath of conduct than the
generic federal crime, then the statute does not embody an offense that precludes
cancellation relief. See Moncrieffe, 569 U.S. at 194-95 (applying categorical approach
and holding that the petitioner had not been convicted of an “aggravated felony” under 8
U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i), 1227(a)(2)(A)(iii), and 1229b(a)(3), (b)(1)(C)
because his conviction could correspond to either a CSA misdemeanor or a CSA felony).
Harve’s statute of conviction makes it “unlawful for any person knowingly or
purposely . . . [t]o manufacture, distribute or dispense, or to possess or have under his
6
Since no party challenged the IJ’s finding that Harve’s crime did not involve
drug trafficking, the illicit drug trafficking method for determining whether a state drug
conviction constitutes an aggravated felony, Evanson, 550 F.3d at 288, 289-90, is not
before us.
5
control with intent to manufacture, distribute or dispense,” N.J. Stat. Ann. § 2C:35-
5(a)(1), “[m]arijuana in a quantity of one ounce [28.35 grams] or more but less than five
pounds including any adulterants or dilutants, or hashish in a quantity of five grams or
more but less than one pound including any adulterants or dilutants,” id. § 2C:35-
5(b)(11). This statute lists multiple alternative elements because the “the type of drug,
insofar as it increases the possible range of penalties, is an element of the crime,” United
States v. Abbott, 748 F.3d 154, 159 (3d Cir. 2014), and therefore, we may consider
certain documents to “determine the exact crime to which [Harve] pleaded guilty,” Avila
v. Att’y Gen., 826 F.3d 662, 666 (3d Cir. 2016). The charging document shows that
Harve was convicted of possessing with the intent to distribute “marijuana, in a quantity
of 1 ounce or more.” AR 298. Having identified the crime of conviction, we compare
the elements of the state offense to those of a CSA felony to determine if they match.7
Singh, 389 F.3d at 282.
The CSA makes it unlawful to “manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a controlled substance,” 21 U.S.C.
§ 841(a)(1), but it includes a misdemeanor exception for “distributing a small amount of
marihuana for no remuneration,” id. § 841(b)(4). Thus, Harve’s “state marijuana
conviction is . . . equivalent to a federal drug felony if the offense involved payment [for]
more than a small amount of marijuana.” Evanson, 550 F.3d at 289.
7
Because we must focus on the elements of the conviction, a petitioner’s specific
conduct that led to the conviction is “irrelevant.” Moncrieffe, 569 U.S. at 190 (citation
omitted).
6
The parties agree that Harve’s conviction involved possession with the intent to
distribute for no remuneration. We must therefore determine whether the statutory
offense covers a small amount of marijuana. If it does, then it is not a CSA felony. We
have observed that “the distribution of 30 grams or less of marijuana without
remuneration is not inherently a felony under federal law.” Steele v. Blackmun, 236 F.3d
130, 137 (3d Cir. 2001); see Catwell v. Att’y Gen., 623 F.3d 199, 209 (3d Cir. 2010)
(holding 120.5 grams is not a small amount under § 841(b)(4)).8 Congress used a 30-
gram threshold in other INA provisions to carve out “exempt[ions] from the harsh
immigration consequence[s]” for “those convicted of a misdemeanor drug crime.”
Sambare v. Att’y Gen., 925 F.3d 124,128 (3d Cir. 2019); see 8 U.S.C. § 1227(a)(2)(B)(i)
(removal exception for drug offenses involving 30 grams or less of marijuana for
personal use); 8 U.S.C. § 1182(h) (waiver of inadmissibility exception for a single simple
possession offense involving 30 grams or less). Moreover, some of our sister circuits
have defined a small amount of marijuana as 30 grams or less, see Hylton v. Sessions,
897 F.3d 57, 61-62 (2d Cir. 2019); Guevara-Solarzano, 891 F.3d 125, 132 (4th Cir.
2018); Ming Wei Chen v. Sessions, 864 F.3d 536, 540 (7th Cir. 2017), which is
consistent with the BIA’s observation that 30 grams is a “useful guidepost in determining
whether an amount is ‘small,’” Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 703
8
In Catwell, our Court relied on various data points to reach its holding, including
legislative history of the CSA and the Sentencing Guidelines, and noted that a small
amount of marijuana “mean[s] the amount of marijuana an individual would be likely to
use on a single occasion, in a social setting . . . . no more than one or two marijuana
cigarettes, or a few grams of marijuana.” 623 F.3d at 209. The Court also found
instructive the INA’s removal provision that relies on 30 grams of marijuana. Id.
7
(BIA 2012) (citing Catwell, 623 F.3d at 209). Thus, a drug statute that criminalizes 30
grams or less of marijuana involves a “small amount” of marijuana and is not one that
qualifies as a CSA felony. See Evanson, 550 F.3d at 289.
Section 2C:35-5(b)(11) penalizes those who manufacture, distribute, dispense, or
possess with the intent to manufacture, distribute, or dispense a minimum of 28.35 grams
of marijuana. Comparing New Jersey’s statute to the CSA misdemeanor threshold of 30
grams, we conclude that an offense under New Jersey law includes conduct involving a
“small amount” of marijuana. Because New Jersey’s statute penalizes conduct that is a
misdemeanor under federal law, it is not equivalent to a federal drug felony. Evanson,
550 F.3d at 289.
Therefore, Harve’s offense is not a categorical match under the hypothetical
federal felony test. As a result, he was not convicted of an aggravated felony that renders
him ineligible for cancellation of removal under § 1229b(a).9
III
For the foregoing reasons, we will grant the petition for review.
9
The Government alternatively asks us to remand to the IJ to determine “whether
Harve must demonstrate that the amount of marijuana underlying his conviction was
between one ounce, or roughly 28.35 grams, and 30 grams in order to establish eligibility
for cancellation of removal.” Mot. Remand at 4. As we have discussed, Harve is not
required to make such a factual showing because, and as the Government acknowledges,
this case is resolved by the categorical approach, which is a purely legal issue ripe for our
disposition. Having decided the legal issue of whether N.J. Stat. Ann. § 2C:35-5(b)(11)
is a categorical match to the CSA, remand is unnecessary.
8