Willy Rosa v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 18-1765

WILLY DE JESUS ROSA,
Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________

On Petition for Review from
the Board of Immigration Appeals
(Agency No.: A043-843-657)
______________

Argued March 14, 2019
______________

Before: McKEE, ROTH, and FUENTES, Circuit Judges

(Opinion filed: January 29, 2020)
Raymond P. D’Uva, I
Alexandra Miron
Law Offices of Raymond P. D’Uva
17 Academy Street
Suite 1000
Newark, NJ 07102

Derek A. Decosmo (Argued)
DeCosmo & Rolon
511 Market Street
Camden, NJ 08102
Counsel for Petitioner

Matthew B. George (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent

Eric M. Mark, Esq. (Argued)
201 Washington Street
Newark, NJ 07102
Counsel for Amici Curiae American
Immigration Lawyers Association

________________

OPINION OF THE COURT
________________

FUENTES, Circuit Judge

2
 This appeal asks us to address an issue of first
impression under the Immigration and Nationality Act (the
“Act”) that carries implications beyond immigration law:
whether the categorical approach, which compares the
elements of prior convictions with the elements of crimes
under federal law, permits comparison with any federal crime,
or only the “most similar” one. That issue arises in noncitizen
Willy de Jesus Rosa’s petition for review from the
determination of the Board of Immigration Appeals that his
prior New Jersey convictions for possession and sale of a
controlled substance within 1,000 feet of a school constitute
aggravated felonies under the Act. Specifically, he challenges
the Board’s conclusion that his prior convictions could be
compared not only to the federal statute proscribing
distribution near a school but also to the federal statute
prohibiting distribution generally. We agree that the Board
erred in that conclusion and will grant the petition for review
and remand for further proceedings.

I. Background

The facts in the administrative record before us may be
summarized as follows:

Rosa, a citizen of the Dominican Republic, was
admitted to the United States as a legal permanent resident in
1992, when he was still a child. When his family arrived in the
United States, they resided in Paterson, New Jersey, where
Rosa eventually attended high school. While Rosa was in high
school, his family, including five of his seven siblings, moved
out of state; Rosa remained in New Jersey to complete high
school.

3
 Shortly after he graduated from high school in 2001,
Rosa lost his job as a car valet and became associated with the
“wrong people.”1 In 2003, he was arrested for drug charges,
and on February 20, 2004, he was convicted following a guilty
plea in New Jersey Superior Court for the possession and sale
of a controlled substance—cocaine—within 1,000 feet of
school property in violation of § 2C:35-7 of the New Jersey
statutes (the “New Jersey School Zone Statute”).2 Eleven years
later, the Department of Homeland Security served Rosa with
a Notice to Appear, charging that Rosa was removable for the
conviction of a controlled substances offense3 and of an
“aggravated felony”4 for a “drug trafficking crime.”5

Rosa subsequently appeared before an Immigration
Judge, where he conceded removability for the controlled
substances offense. However, he denied removability for the
aggravated felony, which would have precluded him from
being eligible for cancellation of removal.6 As required by

1
AR 234.
2
Rosa was charged with the crimes in two separate
indictments. In relevant part, § 2C:35-7 provides, “Any person
who violates [N.J. Rev. Stat. § 2C:35-5(a)] by distributing,
dispensing or possessing with intent to distribute a controlled
dangerous substance . . . while on any school property . . . or
within 1,000 feet of such school property or a school bus, or
while on any school bus, is guilty of a crime of the third
degree . . . .” N.J. Rev. Stat. § 2C:35-7 (2013).
3
8 U.S.C. § 1227(a)(2)(B)(i).
4
Id. § 1227(a)(2)(A)(iii).
5
Id. § 1101(a)(43)(B).
6
8 U.S.C. § 1229b(a)(3).

4
Supreme Court precedent, the Immigration Judge applied the
“categorical approach”7 to determine if Rosa’s state
convictions qualified as an aggravated felony. Under the
categorical approach, the Immigration Judge compared Rosa’s
statute of conviction, the New Jersey School Zone Statute, with
the federal statute for distribution “in or near schools and
colleges” (the “Federal School Zone Statute”).8 The
Immigration Judge concluded that the state statute swept more
broadly than its federal counterpart in both its proscribed

7
As described below, the categorical approach compares
“whether ‘the state statute defining the crime of conviction’
categorically fits within the ‘generic’ federal definition of a
corresponding aggravated felony.” Moncrieffe v. Holder, 569
U.S. 184, 190 (2013) (quoting Gonzales v. Duenas-Alvarez,
549 U.S. 183, 186 (2007)). In making that determination, a
court looks “not to the facts of the particular prior case,” but
instead only to the elements of the state statute and the
“generic” federal analog. Duenas-Alvarez, 549 U.S. at 186
(citing Taylor v. United States, 495 U.S. 575, 598 (1990)). If
the elements of the state conviction “categorically fit[]” within
the elements of an appropriate federal analog, then the state
conviction constitutes an aggravated felony. Moncrieffe, 569
U.S. at 190 (citing Duenas-Alvarez, 549 U.S. at 186).
8
21 U.S.C. § 860. In relevant part, § 860 provides, “Any
person who violates [21 U.S.C. § 841(a)(1) or 856] by
distributing, possessing with intent to distribute, or
manufacturing a controlled substance in or on, or within one
thousand feet of, the real property comprising a public or
private elementary, vocational, or secondary school . . . is . . .
subject to [] twice the maximum punishment authorized by [18
U.S.C. § 841(b)] . . . .” Id. § 860.

5
conduct and its definition of “school property.”9
Consequently, under the categorical approach, Rosa’s state
conviction was not an “aggravated felony” under federal law,10
and he was eligible for cancellation of removal, which the
Immigration Judge granted.11

The Department of Homeland Security appealed to the
Board of Immigration Appeals. The Board determined that,
under the categorical approach, Rosa’s state conviction could
be compared to the federal statute generally prohibiting the
distribution of a controlled substance (the “Federal
Distribution Statute”)12 as a lesser included offense of the
Federal School Zone Statute. The Board concluded that the
Federal Distribution Statute encompassed the elements of
Rosa’s state statute of conviction and that the state conviction
consequently qualified as an aggravated felony. The Board

9
A 30-31.
10
A 33.
11
Cancellation of removal is barred for noncitizens convicted
of aggravated felonies, as defined in 8 U.SC. § 1101(a)(43). 8
U.S.C. § 1229b(a)(3). The Immigration Judge also determined
that Rosa was removable for a controlled substance offense
under 8 U.S.C. § 1227(a)(2)(B)(i), which does not bar
cancellation of removal. Rosa did not challenge that
determination before the Board and does not challenge it
before us.
12
21 U.S.C. § 841(a). That section provides, “[I]t shall be
unlawful for any person knowingly or intentionally . . . to
manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled
substance . . . .” Id.

6
therefore determined that Rosa was ineligible for cancellation
of removal and ordered him removed. Rosa timely appealed
to this Court.

II. Discussion13

On appeal, Rosa contends that the Board of Immigration
Appeals erred by concluding that his prior convictions could
be compared to any federal analog under the categorical
approach. According to Rosa, a prior conviction can only be
properly compared to the “most similar” federal analog. The
Government responds that nothing in the Immigration and
Nationality Act prevents it from selecting any federal analog,
especially those that would be lesser included offenses of the
prior conviction. We agree with Rosa that the Board erred and
hold that the Board’s conclusion runs afoul of longstanding
federal practice. We conclude, however, that the record before

13
The Board of Immigration Appeals had jurisdiction over the
Department of Homeland Security’s appeal from the
Immigration Judge’s cancellation of Rosa’s removal under 8
C.F.R. § 1003.1(b). We have jurisdiction to review the Board’s
final order of removal, 8 U.S.C. § 1252(a)(5), limited to
“constitutional claims or questions of law,” id.
§ 1252(a)(2)(C), (D). We review the Board’s determination
that Rosa’s state convictions constituted an aggravated felony
de novo. Evanson v. Att’y Gen., 550 F.3d 284, 288 (3d Cir.
2008). “When the BIA issues its own decision on the merits,
rather than a summary affirmance, we review its decision, not
that of the IJ.” Singh v. Att’y Gen., 839 F.3d 273, 282 (3d Cir.
2016) (quoting Chavez-Alvarez v. Att’y Gen., 783 F.3d 478,
482 (3d Cir. 2015)).

7
us is insufficient to properly compare the New Jersey and
Federal School Zone Statutes and remand for further
proceedings to supplement the record.

A. Applicable Law

The Board determined that Rosa’s prior convictions
constituted aggravated felonies under the Immigration and
Naturalization Act pursuant to what is known as the
“categorical approach.” The categorical approach “asks only
whether the elements of a federal criminal statute can be
satisfied by reference to the actual statute of conviction.”14
Consequently, a court looks “‘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.”15 If
the elements of the state conviction “fit[]” within the elements
of the appropriate federal offense, then the state conviction
constitutes an aggravated felony.16 Consequently, “a state
crime cannot qualify as an [aggravated felony] if its elements
are broader than those of a listed generic offense.”17
Although the categorical approach originally emerged
in the Supreme Court’s decisions on the Armed Career

14
Evanson, 550 F.3d at 292 (quoting Singh v. Ashcroft, 383
F.3d 144, 161 (2004)).
15
Moncrieffe, 569 U.S. at 190 (quoting Duenas-Alvarez, 549
U.S. at 186).
16
Id.
17
Mathis v. United States, 136 S. Ct. 2243, 2251 (2016);
accord Taylor, 495 U.S. at 590.

8
Criminal Act,18 courts have extended the approach to certain
“aggravated felonies” under the Immigration and Nationality
Act.19 In particular, the categorical approach is applied to
determine if a drug offense may be deemed an “aggravated
felony”20 through “either one of two routes”21 under the Act:
(1) for “illicit trafficking in a controlled substance,”22 which
“must involve ‘the unlawful trading or dealing of a controlled
substance’” 23 and was held by the Board not necessary for it to
consider to reach its decision here; or, (2) for “a drug

18
18 U.S.C. § 924(e).
19
Moncrieffe, 569 U.S. at 190; cf. Nijhawan v. Holder, 557
U.S. 29, 38 (2009) (interpreting the language Congress used in
8 U.S.C. §1101(a)(43)(M)(i) for “fraud or deceit” as requiring
a “circumstance-specific” rather than categorical approach);
Singh, 383 F.3d at 148 (“[I]n some cases the language of the
particular subsection of 8 U.S.C. § 1101(a)(43) at issue will
invite inquiry into the underlying facts of the case, and in some
cases the disjunctive phrasing of the statute of conviction will
similarly invite inquiry into the specifics of the conviction.”).
20
8 U.S.C. § 1101(a)(43).
21
Gerbier v. Holmes, 280 F.3d 297, 313 (3d Cir. 2002).
Although the language of § 1101(a)(43) appears to “create[] a
single category” of “illicit trafficking,” with a subcategory for
“drug trafficking crimes,” we have previously concluded that
the legislative history of the section shows that Congress
sought to create two distinct routes for establishing a drug
offense as an aggravated felony. Id. at 307 n.8 (citing Steele v.
Blackman, 236 F.3d 130, 136 n.5 (3d Cir. 2001)).
22
8 U.S.C. § 1101(a)(43)(B).
23
Evanson, 550 F.3d at 289.

9
trafficking crime,”24 defined as “any felony punishable under
the Controlled Substances Act.”25

Section 924(c)(4) not only incorporates the Controlled
Substances Act in defining a “drug trafficking crime,” but it
“encompasses all state offenses that ‘proscrib[e] conduct
punishable as a felony under [the CSA].’”26 The categorical
approach, sometimes labelled the “hypothetical federal felony
approach,”27 is applied to determine whether a state offense
defines a felony under the Controlled Substances Act.28 If the

24
8 U.S.C. § 1101(a)(43)(B).
25
18 U.S.C. § 924(c)(2), cited and incorporated in 8 U.S.C.
§ 1101(a)(43)(B).
26
Moncrieffe, 569 U.S. at 192 (alterations in original) (quoting
Lopez v. Gonzales, 549 U.S. 47, 60 (2006)).
27
See Singh, 383 F.3d at 157. In this Circuit, “[t]he
hypothetical federal felony approach is essentially the formal
categorical approach of Taylor, as applied to a specific federal
statute.” Id.; Evanson, 550 F.3d at 292 n.5; Gerbier, 280 F.3d
at 315. To the extent that other Circuits have framed the
hypothetical felony approach as asking whether “the ‘conduct’
that gave rise to [the prior] conviction would have been
punished as a felony in federal court,” it has been rejected by
the Supreme Court. Carachuri-Rosendo v. Holder, 560 U.S.
563, 580 (2010). Instead, as described here, we are limited to
examining the elements of the prior conviction.
28
Moncrieffe, 569 U.S. at 190 (“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 INA.” (citing Nijhawan, 557 U.S. at 33-38;

10
state offense is narrower than, or the same as, the generic
federal analog under the Controlled Substance Act, it
constitutes an aggravated felony under the Immigration and
Nationality Act.29

Before determining if the state offense is narrower or
broader than its federal analog, a court must determine which
state offense the defendant was convicted of. If the relevant
state statute defines a single crime—known as an “indivisible”
statute—the analysis is “straightforward.”30 If, however, the
statute defines multiple crimes in multiple subdivisions or by
“list[ing] elements in the alternative,” it is “divisible,” and the
analysis requires an extra step described below.31 To
determine whether a statute is divisible or indivisible, courts
are permitted to examine the statute itself and state court
decisions and to “peek” at the “record of a prior conviction,”32
including the charging documents, plea agreement, plea
colloquy, and jury instructions.33 A statute may be indivisible
even if it has disjunctive phrasing—listing various components

Duenas-Alvarez, 549 U.S. at 185-187)); Lopez, 549 U.S. at 60;
id. at 55 (“Unless a state offense is punishable as a federal
felony it does not count.”).
29
Mathis, 136 S. Ct. at 2248.
30
Id.
31
Id. at 2249.
32
Id. at 2256-57 (quoting Rendon v. Holder, 782 F. 3d 466,
473-474 (9th Cir. 2015) (Kozinski, J., dissenting from denial
of reh’g en banc)).
33
Id. at 2249, 2253, 2256-67.

11
as alternatives—if it merely “enumerates various factual means
of committing a single element.”34

An indivisible statute defining a single crime is assessed
under the “formal categorical approach” outlined above.35
However, a divisible statute listing multiple crimes with
different elements requires courts to go an extra step beyond
the categorical approach and employ the “modified categorical
approach” to determine of which crime the defendant was
convicted.36 “‘Elements’ are the ‘constituent parts’ of a
crime’s legal definition—the things the ‘prosecution must
prove to sustain a conviction.’”37 Under the modified
categorical approach, the court may look to a limited class of
documents—“for example, the indictment, jury instructions, or
plea agreement and colloquy”—solely to determine under
which portion of the statute and under which elements—the
defendant was convicted.38 Once a court has used the modified

34
Id. at 2249. For example, in Mathis itself, the Supreme
Court concluded that Iowa’s burglary statute, which defined
burglary as occurring in “any building, structure, [or] land,
water, or air vehicle,” was indivisible because the Iowa
Supreme Court had concluded that the listed locations were
merely “alternative ways of satisfying a single locational
element.” Id. at 2250 (alteration in original) (emphasis
omitted) (quoting Iowa Code §702.12 (2013)).
35
Evanson, 550 F.3d at 290.
36
Id.
37
Mathis, 136 S. Ct. at 2248 (quoting Elements of Crime,
Black’s Law Dictionary (10th ed. 2014)).
38
Id. These documents are often referred to as “Shepard
documents” for the case in which the Supreme Court chiefly

12
categorical approach to “determine what crime, with what
elements, a defendant was convicted of,” then it may “compare
that crime, as the categorical approach commands, with the
relevant generic offense.”39

It is under this law that we analyze Rosa’s arguments.

B. The Categorical Approach Is Limited to the
Most Similar Federal Analog

We conclude, first, that the Board erred in permitting
Rosa’s statute of conviction to be compared to multiple federal
analogs. Instead, longstanding practice in federal court limits
that comparison to only the most similar federal analog.
1. Longstanding Federal Practice

First, the Board’s determination runs afoul of
longstanding practice in the Supreme Court and this Court that
has treated prior convictions as having only one federal analog.
That practice is underscored by the Supreme Court’s reasoning
in Taylor v. United States40 and its subsequent decisions.

outlined their use, Shepard v. United States, 544 U.S. 13, 26
(2005). The Supreme Court envisions use of the Shepard
documents as a two-step process, first to determine whether
“an alternatively phrased statute” lists elements or means, and
second, if the items listed in the statute are elements, to
determine which of those elements were implicated in the
defendant’s conviction. Mathis, 136 S. Ct. at 2256 & n.7.
39
Mathis, 136 S. Ct. at 2249.
40
495 U.S. 575.

13
 In Taylor, the Court rejected the Eighth Circuit’s
conclusion that “burglary” under the Armed Career Criminal
Act “means ‘burglary’ however a state chooses to define it.”41
The Court reasoned that Congress could not have intended to
premise application of that Act on the “vagaries”42 of state law.
Various states, for example, might not have any offense
“formally labeled ‘burglary,’” but instead multiple statutes
covering “breaking and entering.”43 Other states might cover
shoplifting or theft from automobiles44 and coin machines
under the umbrella of “burglary.”45 The Court reasoned that
each of these statutes, despite their many variations, must be
covered by “some uniform definition independent of the
labels” and statutory schemes “employed by the various States’
criminal codes.”46 That uniform definition was to cover prior
convictions that, “while not called ‘burglary,’ correspond in
substantial part to generic burglary.”47

The Supreme Court’s subsequent decisions regarding
the categorical approach emphasize that a prior conviction will
be compared to the most similar federal analog. For example,
in Shepard v. United States, the Supreme Court concluded that
the defendant’s prior convictions under Massachusetts law

41
Id. at 579 (quoting United States v. Taylor, 864 F.2d 625,
627 (8th Cir. 1989)).
42
Id. at 588.
43
Id. at 591 (citing Mich. Comp. Laws § 750.110 (1979)).
44
Id. (citing Cal. Penal Code Ann. § 459 (West Supp. 1990)).
45
Id. (citing Tex. Penal Code Ann. §§ 30.01-30.05 (1989 and
Supp. 1990)).
46
Id. at 592.
47
Id. at 599 (emphasis added).

14
were broader than “generic” federal burglary.48 Although the
state statutes were merely labelled “breaking/entering,”49 the
Court nonetheless compared them to “the generic offense” for
burglary.50 According to the Shepard Court, a prior conviction
could fall within “the generic limit”51 only if evident from the
statute, a plea colloquy regarding “the generic fact,” or “the
generic implication of a jury’s verdict.”52

Similarly, in Mathis, the Court described the categorical
approach as comparing a statute of conviction “with the
relevant generic offense.”53 Likewise, in Descamps v. United
States, the Court described “the generic offense” for a
particular statute of conviction as “the offense as commonly
understood.”54 Those statements, with the use of the definite
article “the,” all presuppose that a given statute of conviction
has a single generic analog.

Our own jurisprudence has similarly underscored that
prior convictions will only have a single generic federal
analog. In Gerbier v. Holmes, we concluded that a Delaware
conviction for possession of cocaine did not qualify as an
aggravated felony.55 In reaching that conclusion, we rejected

48
544 U.S. at 17.
49
Mass. Gen. Laws, ch. 266, §§ 16, 18 (2000); see Shepard,
544 U.S. at 31 (O’Connor, J., dissenting).
50
544 U.S. at 17.
51
Id. (emphasis added).
52
Id. at 25-26 (emphasis added).
53
136 S. Ct. at 2249.
54
570 U.S. at 257.
55
280 F.3d at 317.

15
one provision of the Controlled Substances Act, 21 U.S.C.
§ 802, as “the appropriate federal analog[]” because it did not
“define[] substantive federal drug offenses,” but only the terms
used elsewhere in the Controlled Substances Act.56 Instead,
we concluded that 21 U.S.C. § 844(a) was “the pertinent
federal analog,”57 because it proscribed the same conduct.

The Government argues, however, that Gerbier actually
“embraced the idea of multiple potential federal analogues.”58
That argument is misplaced. The language used by the Gerbier
court expressly rejected § 802 as an “appropriate federal
analog[]” and instead concluded that “the pertinent federal
analog” was 21 U.S.C. § 844.59 As with the language
employed by the Supreme Court, longstanding practice in this
Court has steadfastly presupposed that prior convictions will
have only a single, uniform federal analog.60 The
Government’s position would upend that practice.

56
Id. at 316 (citing 21 U.S.C. §§ 802(13), (44)).
57
Id.
58
Respondent Br. at 16.
59
Gerbier, 280 F.3d at 316.
60
See Singh, 839 F.3d at 285 (“This is the appropriate generic
federal offense analog for convictions for ‘knowingly
possessing with intent to deliver a counterfeit controlled
substance’ . . . .” (emphasis added)); Wilson v. Ashcroft, 350
F.3d 377, 381 (3d Cir. 2003) (“The analogous federal criminal
provision is 21 U.S.C. § 841(a)(1), which proscribes the
identical conduct.”).

16
 2. Congressional Intent

Application of the categorical approach is ultimately
dictated by Congress’s intent in passing the relevant statute.61
“[T]he Supreme Court has always rooted the categorical
approach in the statutory language chosen by Congress and
consistently defended this approach as a means of effectuating
congressional intent.”62 Consequently, the “categorical
approach is dictated by the text of the statute and Congress’s
intent to impose increased penalties based on the violation of
certain predicate statutes.”63

61
See Mathis, 136 S. Ct. at 2252 (“Our decisions have given
three basic reasons for adhering to an elements-only inquiry.
First, ACCA’s text favors that approach.”); Nijhawan, 557
U.S. at 34 (“In Taylor and James we held that ACCA’s
language read naturally uses the word ‘felony’ to refer to a
generic crime as generally committed.”); Taylor, 495 U.S. at
588-89 (“[T]he 1984 definition of burglary shows that
Congress, at least at that time, had in mind a modern ‘generic’
view of burglary. . . .”).
62
United States v. Simms, 914 F.3d 229, 240 (4th Cir. 2019)
(en banc); accord Singh, 383 F.3d at 164 (concluding that the
statutory text and legislative history of the Immigration and
Nationality Act “support[] the conclusion that Congress
intended Taylor’s formal categorical approach to be applied”
to “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A)).
63
Ovalles v. United States, 905 F.3d 1231, 1299 (11th Cir.
2018) (en banc) (Pryor, J., dissenting)

17
 Here, an “aggravated felony” is defined under the
Immigration and Nationality Act64 in part as encompassing
“any felony punishable under the Controlled Substances
Act.”65 That definition incorporates the entirety of the
substantive felony offenses under the Controlled Substances
Act66 as aggravated felonies under the Immigration and
Nationality Act. Notably, Congress did not limit the list of
potential federal analogs to lesser included offenses67 such as
simple possession,68 possession with intent to distribute,69 or
distribution.70 Where Congress has decided to incorporate a

64
8 U.S.C. § 1101(a)(43)(B).
65
18 U.S.C. § 924(c), incorporated in 8 U.S.C.
§ 1101(a)(43)(B).
66
Gerbier, 280 F.3d at 315-16.
67
Offense, Black’s Law Dictionary (11th ed. 2019) (defining
“lesser included offense” as a “crime that is composed of some,
but not all, of the elements of a more serious crime and that is
necessarily committed in carrying out the greater crime”).
68
21 U.S.C. § 844(a). Simple possession qualifies as a felony
under the Controlled Substances Act when the prosecution
charges and proves the existence of a prior conviction for
possession. Carachuri-Rosendo, 560 U.S. at 568. As a
sentencing factor, however, that proof may be by a
preponderance of the evidence and may be found by a judge,
rather than by a jury. Id. at 567 n.3.
69
21 U.S.C. § 841(a)(1). We have previously concluded that
the Federal Distribution Statute, id., is a lesser included offense
of the Federal School Statute, id. § 860. United States v.
Petersen, 622 F.3d 196, 204 (3d Cir. 2010).
70
21 U.S.C. § 841(a)(1).

18
range of substantive offenses as generic federal analogs under
the categorical approach, we must give that decision full effect.

The Supreme Court has instructed that Congress
intended for the categorical approach to take full account of the
actual prior conviction. In Carachuri-Rosendo v. Holder, the
Court concluded that, of simple possession convictions, only
“recidivist simple possession” qualified as a felony under the
Controlled Substances Act and that a prosecutor must have
charged and proven an antecedent possession conviction
before a judge in state proceedings.71 In reaching that
conclusion, the Court emphasized that the text of the
Immigration and Nationality Act requires a noncitizen to have
“been convicted of a[n] aggravated felony.”72 According to the
Court, that “text thus indicates that we are to look to the
conviction itself as our starting place, not to what might have
or could have been charged.”73
Although Carachuri addressed offenses that had been
charged as misdemeanors, that same principle applies here:
Rosa was charged with and convicted of a greater offense—
sale of a controlled substance within a school zone74—with the
additional school zone element not included in the lesser
offense. The Government cannot now avoid the implications
of Rosa’s actual conviction.

71
560 U.S. at 568-69.
72
Id. at 576 (emphasis and alteration in original).
73
Id. at 576, 578.
74
See State v. Ivory, 592 A.2d 205, 210 (N.J. 1991) (“The first
step in determining whether N.J.S.A. 2C:35-7 has been
violated is to see whether N.J.S.A. 2C:35-5a has been
violated.”).

19
 In response, the Government raises two contentions,
neither of which is availing. First, it argues that the term “illicit
trafficking in a controlled substance” under “the text of
§ 1101(a)(43)(B)” is the relevant generic analog, which is
satisfied by any felony under the Controlled Substances Act.75
That argument has some support in decisions by the Supreme
Court and this Court. For example, in Moncrieffe v. Holder,
the Supreme Court analyzed its earlier decision in Carachuri-
Rosendo as concluding that “‘illicit trafficking in a controlled
substance’ is a ‘generic crim[e]’ to which the categorical
approach applies.”76 Similarly, in Singh v. Attorney General,
we stated, “The relevant federal ‘corresponding aggravated
felony’ here is ‘illicit trafficking in a controlled substance . . .
including a drug trafficking crime . . . .’”77 That language
seems to support the argument that the proper federal analog is
merely the provisions of § 1101(a)(43)(B).

However, neither of those decisions rested on that
cursory analysis. The Moncrieffe Court recognized that the
proper federal analog in Carachuri-Rosendo was not merely
“illicit trafficking.” Instead, it determined that “the generic
federal offense” in Carachuri-Rosendo was ultimately the
underlying provision of the Controlled Substance Act,

75
Respondent Br. at 17.
76
569 U.S. at 202 (alteration in original) (quoting Nijhawan,
557 U.S. at 37) (citing Carachuri-Rosendo, 560 U.S. at 576-78
n. 11).
77
839 F.3d at 285.

20
“recidivist simple possession.”78 Similarly, in Singh, we
concluded that “the appropriate generic federal offense analog”
was not just “illicit trafficking,” but the underlying provision
of the Controlled Substances Act proscribing “knowingly . . .
posses[sing] with intent to distribute or dispense, a counterfeit
substance.”79 In each of those cases, the court followed
Congress’s intent in comparing the actual state convictions to
their most similar federal analog in the Controlled Substances
Act.

Second, the Government contends that the term “any”
in the definition of a “drug trafficking crime” 80 is ambiguous
and the interpretation of the Board of Immigration Appeals is
entitled to deference under Chevron, Inc. v. Natural Resource
Defense Council.81 In the alternative, the Government
contends that, even in the absence of deference under Chevron,
the term still authorizes it to choose among federal analogs.
Neither of those contentions has merit. We have previously
held that the Board is not entitled to deference under Chevron
when interpreting § 924(c), because “the interpretation and
exposition of criminal law is a task outside the BIA’s sphere of
special competence.”82 “[T]he specified section at issue in this
case is part of the federal criminal code that is incorporated by

78
569 U.S. at 195-96 (quoting Carachuri-Rosendo, 560 U.S.
at 567).
79
839 F.3d at 285 (omission and alteration in original) (quoting
21 U.S.C. §§ 841(a)(2)).
80
18 U.S.C. § 924(c), incorporated in 8 U.S.C.
1101(a)(43)(B).
81
467 U.S. 837 (1984).
82
Singh, 383 F.3d at 151.

21
reference into the INA. As such, the BIA’s expertise in
interpreting the INA is not implicated in a meaningful way and
we need not defer to it.”83 Likewise, the term “any” cannot
carry the authorization the Government imparts to it in this
context. Although the term is undoubtedly broad, in this
context, we cannot infer that Congress intended, with that one
word, for lesser included offenses to effectively serve as the
sole federal analogs for “any felony punishable under the
Controlled Substances Act.”84

Thus, we conclude that Congress intended for prior
convictions to be compared to their most similar federal
analogs.

3. Determining the “Most Similar” Federal
Analog

With the above principles in mind, we turn to
identifying the proper federal analog for Rosa’s conviction. As
noted above, our analysis is guided by longstanding practice in
this Court and the Supreme Court, and that practice has
developed in order to effect congressional intent. We have
reasoned that Congress would not have incorporated the
entirety of substantive felony offenses under the Controlled
Substances Act as federal analogs if it also intended to permit
prosecutors and immigration officials to resort to the federal
analogs with the least number of elements. Therefore, we

83
Gerbier, 280 F.3d at 302 n.2; accord Salmoran v. Att’y Gen.,
909 F.3d 73, 77 (3d Cir. 2018) (citing Singh v. Att’y Gen., 677
F.3d 503, 508 (3d Cir. 2012)).
84
18 U.S.C. § 924(c)(2).

22
conclude that, when selecting a generic federal analog, courts
must, when possible, select an analog that has elements that
may be “line[d] up”85 with each of the elements of the prior
conviction.

The application of those principles in this case is
straightforward. Rosa’s statute of conviction, the New Jersey
School Zone Statute,86 has three elements that may be
described as: (1) “distributing, dispensing or possessing with
intent to distribute” (2) “a controlled dangerous substance” (3)
“while on any school property.”87 The Federal Distribution
Statute, however, lacks that critical third element, requiring
only that a person (1) knowingly or intentionally “manufacture,
distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense” (2) “a controlled substance.”88 Because
it lacks what may be described as a location element, the
Federal Distribution Statute is not a proper analog to the New
Jersey School Zone Statute. Instead, the Federal School Zone
Statute supplies that missing element89 and is the proper federal

85
Mathis, 136 S. Ct. at 2248.
86
N.J. Rev. Stat. § 2C:35-7(a).
87
See State v. Gregory, 106 A.3d 1207, 1210 (N.J. 2015) (“The
elements of [possession with the intent to distribute under §
2C:35-7(a)] were (1) possession of a controlled dangerous
substance, (2) with the purposeful or knowing intent to
distribute the substance, and (3) within 1000 feet of any school
property.”).
88
21 U.S.C § 841(a).
89
Petersen, 622 F.3d at 204 (“Section 860 is therefore a
substantive offense that requires proof of an element that is not
included in § 841—proof that the distribution, possession or

23
analog.90 Consequently, the Board of Immigration Appeals
erred in concluding that it could select a generic federal analog
from any provision of the Controlled Substances Act and in
comparing Rosa’s statute of conviction to the general Federal
Distribution Statute.
B. The Record Is Insufficient to Determine
Whether the New Jersey School Zone Statute
Is Divisible

Having determined that the Federal School Zone Statute
is the proper generic analog for Rosa’s conviction under the
New Jersey School Zone Statute, we now “compare that crime,
as the categorical approach commands, with the relevant
generic offense.”91 As noted above, the New Jersey School
Zone Statute provides:

Any person who violates subsection a. of N.J.S.2C:35-
5 by distributing, dispensing or possessing with intent
to distribute a controlled dangerous substance or
controlled substance analog while on any school
property used for school purposes which is owned by or
leased to any elementary or secondary school or school
board, or within 1,000 feet of such school property or a

manufacturing occurred within 1000 feet of a schoolyard.”);
United States v. McQuilkin, 78 F.3d 105, 108-09 (3d Cir. 1996)
(“Although § 860 refers to § 841 . . . it requires a separate and
distinct element—distribution within 1,000 feet of a school.”).
90
We leave open for another day the proper procedure if no
federal analog fulfills the conditions we describe here or if two
or more do.
91
Mathis, 136 S. Ct. at 2249.

24
 school bus, or while on any school bus, is guilty of a
crime of the third degree and shall, except as provided
in N.J.S.2C:35-12, be sentenced by the court to a term
of imprisonment.92

The conduct and location elements of that statute, however, are
disjunctive, and before applying the categorical approach, our
“first task” is to determine whether it is divisible or
indivisible—that is, whether it lists alternative elements and
thereby defines separate crimes or merely lists alternative
means to commit a single crime.93

The “threshold inquiry” of “elements or means,”94 can
be quickly resolved if the statute is clear on its face or there are
prior state court decisions definitively answering the question.

92
N.J. Rev. Stat. § 2C:35-7.
93
See Mathis, 136 S. Ct. at 2256. Rosa directs our analysis
toward the conduct element, “distributing, dispensing or
possessing with intent to distribute,” contending that it extends
beyond the conduct covered by the Federal School Statute.
The Government has not responded to Rosa’s contentions
regarding the conduct element of the New Jersey School
Statute, presumably because we already concluded in a non-
precedential opinion that a conviction under the New Jersey
School Statute could not constitute an aggravated felony under
the categorical approach. Chang-Cruz v. Att’y Gen., 659 F.
App’x 114, 119 (3d Cir. 2016). Because Chang-Cruz is non-
precedential, however, it does not bind this panel and, pursuant
to longstanding practice in this Court, we will not otherwise
cite to or rely on it. See Third Cir. Internal Operating P. 5.7.
94
Mathis, 136 S. Ct. at 2249, 2256.

25
95
However, where the statute itself and state law fail to
provide clear answers, courts may look “to a limited class of
documents (for example, the indictment, jury instructions, or
plea agreement and colloquy).”96 If those documents
“reiterat[e] all the terms of” the statute of conviction or “use a
single umbrella term” to cover all those terms, the statute is
likely indivisible, listing only means to commit a single
crime.97 Conversely, if the documents “referenc[e] one
alternative term to the exclusion of all others,” the statute is
likely divisible, listing different elements, “each one of which
goes toward a separate crime.”98 Only if the statute lists
different elements may we use those same documents under
the modified categorical approach to determine which
elements were relied on in the prior conviction.99 If the statue
is indivisible, however, we proceed directly to a comparison of
the statutes’ elements under the categorical approach.
However, if the documents listed above do not “speak plainly,”
the record will not be able to satisfy the “demand for certainty”
required “when determining whether a defendant was
convicted of a generic offense.”100

95
Id. at 2256-57.
96
Id. at 2249.
97
Id. at 2257
98
Id.
99
Id. at 2257 (stating that, after asking whether the listed items
are elements of the offense, “Only [then] if the answer is yes
can the court make further use of the materials, as previously
described, see supra, at 2253-2254.”); id. at 2253 (describing
use of the same materials in the modified categorical
approach).
100
Id. at 2257 (quoting Shepard, 544 U. S. at 21).

26
 In this case, the text of the New Jersey School Zone
Statute and New Jersey case law do not definitively determine
whether the disjunctively phrased conduct and location
elements of that statute are divisible or indivisible.101
Therefore, the Court may look to a limited class of underlying
documents to determine divisibility. However, the record
before us in this case is one that does not “speak plainly.” In
particular, we find that the record is too limited to permit us to
determine if the various items listed in the New Jersey School
Zone Statute are means or elements or, if necessary, to
determine which of those elements played a role in Rosa’s
conviction. In our review of the record, we were unable to
locate Rosa’s plea agreement or plea colloquy or a charging
document for his possession charge. Although we do have the
judgments of conviction for Rosa’s convictions for both

101
Although some case law suggests that New Jersey courts
treat the New Jersey School Zone Statute’s conduct element
listing distributing, dispensing or possessing as alternate means
of fulfilling a single element, the Court is not aware of any New
Jersey case definitively resolving the issue. See, e.g., State v.
Maldonado, 137 N.J. 536, 645 A.2d 1165, 1185 (1994)
(upholding, on other grounds, a jury charge stating that, “to
find against [the defendant] on this element, the State must
prove ‘he knew that it was cocaine and intended to distribute
or dispense it to [another]’ ” (emphasis added)); State v.
Wilkinson, 126 N.J. Super. 553, 316 A.2d 6, 8 (1973)
(concluding that there was sufficient evidence to prove that the
defendant was guilty of “possession of marijuana with intent
to distribute or dispense it”).

27
possession and “sale” of controlled substances,102 we have
previously held that “we may not look to factual assertions in
the judgment of sentence.”103 Furthermore, the jury
instructions available for the New Jersey School Zone Statute
fail to clarify whether the conduct at issue consists of elements
or means. There is only one set of jury instructions for
distributing or dispensing on school property, which suggests
that distributing and dispensing are interchangeable means.
However, there is a separate set of instructions for possession
with the intent to distribute on school property, which may
indicate that the conduct consists of different elements that the
jury must find beyond a reasonable doubt. The jury
instructions, absent support from the other Shepard documents
from Rosa’s criminal case, are inconclusive. Thus, we remand
to the Board for further proceedings to supplement the record;
if the record cannot be supplemented to satisfy the “demand
for certainty” in analyzing whether the statute lists means or
elements, Rosa cannot be found to have committed an
aggravated felony.104

102
AR 564-68.
103
Evanson, 550 F.3d at 293; accord Shepard, 544 U.S. at 26
(limiting application of the categorical approach following a
guilty plea “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”).
104
See Evanson, 550 F.3d at 293-94.

28
IV. Conclusion

For the foregoing reasons, the petition for review will
be granted and the order of removal will be vacated and
remanded for further proceedings.

29