Borrome v. Attorney General of the United States
687 F.3d 150
| 3rd Cir. | 2012Background
- Borrome is a Dominican Republic national who has been a lawful permanent resident since 1996.
- In May 2002 the FDA filed a criminal complaint and a grand jury returned a two-count indictment accusing Borrome and two co-defendants of unlicensed wholesale distribution of prescription drugs in interstate commerce.
- Count One charged distribution of several prescription drugs without a license; Count Two alleged conspiracy; the CSA was not charged.
- Borrome pled guilty to Count One; Count Two was dismissed. The district court sentenced him to four months’ imprisonment and four months’ home confinement.
- In 2010 Borrome was served with a Notice to Appear for removal. The IJ found him removable as an aggravated felon under §1101(a)(43)(B) and as a law relating to a controlled substance under §1227(a)(2)(B)(i). The BIA summarily affirmed, and Borrome was removed. The Third Circuit reversed, holding the FDCA wholesale distribution provisions are neither an aggravated felony nor “relating to” a controlled substance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FDCA wholesale distribution conviction qualifies as an aggravated felony | Borrome argues FDCA §§331(t), 353(e) align with §924(c) offenses. | Borrome’s conviction should be treated as an aggravated felony under the hypothetical federal felony or illicit trafficking tests. | No; the FDCA conviction is not an aggravated felony under §1101(a)(43)(B). |
| Whether the FDCA wholesale distribution provisions are laws relating to a controlled substance | FDCA provisions relate to controlled substances because some listed drugs contain controlled substances. | The relation is too attenuated and the provisions criminalize broad conduct with no necessary nexus to controlled substances. | No; the FDCA provisions are not “relating to” a controlled substance under §1227(a)(2)(B)(i). |
| Whether the hypothetical federal felony test applies to a conviction under a federal law (FDCA) not enumerated in §924(c)(2) | Court should apply the hypothetical federal felony test to classify the conviction. | Traditional categorical approach should apply; the statute at issue is non-divisible and does not map to CSA crimes. | Yes, the hypothetical federal felony test can apply to a non-enumerated federal law, but the FDCA offense fails under the test. |
Key Cases Cited
- Evanson v. Att'y Gen., 550 F.3d 284 (3d Cir.2008) (establishes two tests for aggravated felonies: hypothetical federal felony and illicit trafficking element)
- Garcia v. Att'y Gen., 462 F.3d 287 (3d Cir.2006) (applies the categorical approach to aggravated felony determinations)
- Gerbier v. Holmes, 280 F.3d 297 (3d Cir.2002) (discusses application of the hypothetical federal felony concept)
- Jeune v. Att'y Gen., 476 F.3d 199 (3d Cir.2007) (cites standard for determining what the convicting court must have found)
- Desai v. Mukasey, 520 F.3d 762 (7th Cir.2008) (holds Look-Alike laws can relate to controlled substances)
- Luu-Le v. I.N.S., 224 F.3d 911 (9th Cir.2000) (paraphernalia-related laws may relate to controlled substances)
- Mizrahi v. Gonzales, 492 F.3d 156 (2d Cir.2007) (broad interpretation of “relating to” in INA contexts)