523 F. App'x 913
3rd Cir.2013Background
- Berroa is a Dominican native and U.S. permanent resident since 1994.
- He pleaded guilty in 1999 to attempted criminal sale of crack cocaine (N.Y. Penal Law § 220.39(1)).
- He was convicted in 2002 of criminal possession of crack cocaine (N.Y. Penal Law § 220.03).
- In 2012 DHS initiated removal proceedings, citing aggravated felony (drug trafficking) and a separate controlled-substance conviction.
- The IJ found the 1999 conviction an aggravated felony and ordered removal; the Board affirmed.
- On review Berroa challenges the aggravated-felony designation and related continuance/Padilla arguments; the court denies the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1999 NY conviction is an aggravated felony under INA § 101(a)(43)(B). | Berroa argues the conviction is not an aggravated felony. | The government contends the conviction matches CSA-based distribution felony under the hypothetical route. | Yes; the conviction qualifies as an aggravated felony under the hypothetical federal felony route. |
| Whether Lopez controls the characterization of the 1999 conviction as an aggravated felony. | Berroa relies on Lopez to argue only simple possession could be implied, not distribution. | Board and court disagree, applying formal categorical approach to map to CSA distribution. | Lopez does not require a different result here; the conviction carries to aggravated felony. |
| Whether Padilla and retroactivity affect Berroa’s continuance request or relief eligibility. | Padilla retroactivity should permit post-conviction relief; good-cause continuance warranted. | Padilla is not retroactive on collateral review; continuance denied as unsubstantiated. | Padilla not retroactive; no relief based on that ground; continuance appropriately denied. |
Key Cases Cited
- Lopez v. Gonzales, 549 U.S. 47 (Sup. Ct. 2006) (aggravated felony depends on federal statute, not state law classification)
- Taylor v. United States, 495 U.S. 575 (Sup. Ct. 1990) (formal categorical approach for NA aggravated felonies)
- Evanson v. Atty. Gen., 550 F.3d 284 (3d Cir. 2008) (hypothetical federal felony route analysis)
- Garcia v. Atty. Gen. of U.S., 462 F.3d 287 (3d Cir. 2006) (supports formal categorical approach mapping to CSA)
- Davila v. Holder, 381 F. App’x 413 (5th Cir. 2010) (unpublished but addressing modified vs formal approach in NY § 220.39 cases)
- Thomas v. Atty. Gen. of U.S., 625 F.3d 134 (3d Cir. 2010) (modified approach considerations for NY misdemeanors)