828 F.3d 139
2d Cir.2016Background
- Collymore, a Barbadian national and U.S. lawful permanent resident, was convicted in Pennsylvania in 1997 under 35 Pa. Stat. Ann. § 780-113(a)(30) for conduct involving a "counterfeit controlled substance."
- On returning to the U.S. in 2008, DHS charged him in removal proceedings as removable for having been convicted of a controlled-substance offense and a crime involving moral turpitude.
- The IJ found Collymore removable, concluded the Pennsylvania statute was divisible, and—using the modified categorical approach—determined the record showed his conviction involved cocaine (a federal controlled substance).
- The BIA affirmed, agreeing the statute was not a categorical match but that the record established the drug was cocaine, so Collymore was removable under the INA.
- Collymore petitioned this Court arguing his 1997 Pennsylvania conviction was not categorically a federal controlled-substance offense. The Second Circuit reviewed de novo and dismissed the petition for lack of jurisdiction after concluding the conviction was categorically a federal controlled-substance offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction under 35 Pa. Stat. §780-113(a)(30) (1997) is categorically a federal "controlled substance" offense for INA removability | Collymore: Pennsylvania statute sweeps more broadly than the federal CSA (covers "other drugs"/"cosmetics"), so it is not a categorical match | Government: Pennsylvania statute—read in context and compared to 1997 federal schedules—covers the same substances; conviction is categorically a federal controlled-substance offense | Held: Conviction is categorically a federal controlled-substance offense; petition dismissed for lack of jurisdiction |
Key Cases Cited
- Higgins v. Holder, 677 F.3d 97 (2d Cir.) (jurisdictional framework for reviewing whether prior conviction is a controlled-substance offense)
- Oouch v. U.S. Dep’t of Homeland Sec., 633 F.3d 119 (2d Cir.) (categorical approach and when to apply modified categorical approach)
- United States v. Abbott, 748 F.3d 154 (3d Cir.) (statute found divisible for ACCA analysis; distinguished on facts)
- Clarke v. Ashcroft, [citation="100 F. App'x 884"] (3d Cir.) (concluding Pennsylvania illicit-substance list aligns with federal schedule)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (directive to compare schedules as of time of conviction)
- Costa v. Holder, 611 F.3d 110 (2d Cir.) (if statute is categorically a match, no need for modified categorical inquiry)