659 F. App'x 114
3rd Cir.2016Background
- Carlos Chang-Cruz, an Ecuadorian admitted in 1987, pled guilty in New Jersey (2005) to two counts under N.J. Stat. Ann. § 2C:35-7(a) (distributing/dispensing or possessing with intent to distribute/dispense within 1000 feet of school property).
- DHS charged removability as a controlled-substance offense and as an aggravated felony (drug trafficking) under 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii).
- At first IJ hearing, the IJ found the convictions were not aggravated felonies and granted cancellation of removal; DHS appealed to the BIA and sought remand after obtaining the plea colloquy transcript.
- On remand the IJ (relying on the transcript) reversed eligibility and denied cancellation; the BIA affirmed. The Third Circuit remanded for consideration of Descamps and, after BIA re-affirmance, Chang-Cruz petitioned again.
- The Third Circuit considered whether NJ § 2C:35-7 is categorically (or via the modified categorical approach) equivalent to 21 U.S.C. § 860 such that the convictions are aggravated felonies, focusing on whether “distributing” and “dispensing” are alternative elements or mere means.
- The court concluded the record and New Jersey law do not supply the required certainty that the convictions involved distribution (rather than dispensing), so they are not aggravated felonies; court remanded to the BIA for proceedings consistent with this opinion.
Issues
| Issue | Plaintiff's Argument (Chang-Cruz) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether NJ § 2C:35-7 convictions are aggravated felonies under 8 U.S.C. § 1101(a)(43)(B) via equivalence to 21 U.S.C. § 860 | Convictions are not aggravated felonies because § 2C:35-7 may cover "dispensing," which § 860 does not, and the record lacks certainty that conviction necessarily matched the federal offense | § 2C:35-7 is analogous to § 860; plea colloquy and documents show convictions for distribution/dispensing within 1000 feet of a school, so aggravated-felony treatment is proper | Held for Chang-Cruz: Court cannot conclude beyond doubt the convictions were for the federal "distribution" offense; not aggravated felonies. |
| Whether the modified categorical approach may be used (i.e., whether statutory alternatives are elements or means) | Mathis and related authorities require elements-based analysis; record does not show distribution and dispensing are separate elements | Government conceded Mathis applies but argued record supported finding of distribution | Held: Under Mathis, distribution vs. dispensing appear to be alternative means; plea documents and jury instructions indicate alternatives, so modified categorical approach cannot establish equivalence. |
| Whether the BIA properly remanded to the IJ to consider the plea transcript | Chang-Cruz argued transcript could have been obtained earlier and BIA lacked finding that transcript "could not have been discovered" at initial hearing | Government relied on transcript and obtained BIA remand to IJ | Held: Court reserved full ruling but noted BIA likely erred by considering the transcript without making the required finding under 8 C.F.R. § 1003.2(c)(1). |
| Whether cancellation of removal should be reinstated given DHS did not otherwise challenge IJ's discretionary grant | Chang-Cruz: DHS did not contest IJ's discretionary grant on other grounds; BIA should defer and reinstate cancellation | DHS: Focused only on aggravated-felony argument; did not press other challenges or cross-appeal | Held: Court remanded to BIA to address this in the first instance but signaled BIA may reinstate IJ's discretionary grant since DHS waived other challenges. |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (clarifies when to apply categorical vs. modified categorical approach)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (explains "hypothetical federal felony" route for drug-trafficking aggravated felony and categorical analysis)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (requires determining whether statutory alternatives are elements or means when applying categorical approach)
- Shepard v. United States, 544 U.S. 13 (2005) (limits record materials courts may consult under modified categorical approach)
- INS v. Ventura, 537 U.S. 12 (2002) (remand principles; courts ordinarily remand to agency)
- Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (addresses when sentencing facts must be considered in categorical analysis)