642 F. App'x 184
3rd Cir.2016Background
- Gerard Deptula, a lawful permanent resident from Poland, pled guilty in 2012 to two counts under 18 U.S.C. § 1952(a)(3) (the Travel Act) for using interstate commerce to promote unlawful activity; sentenced to 18 months.
- The superseding information identified the underlying unlawful activity as a conspiracy to violate 21 U.S.C. § 841(a)(1) (Controlled Substances Act).
- DHS initiated removal proceedings charging Deptula as removable for (1) an aggravated felony (illicit trafficking in a controlled substance), (2) a crime relating to a controlled substance, and (3) two crimes involving moral turpitude; the IJ sustained the first two grounds.
- The IJ denied cancellation of removal because an aggravated felony conviction makes Deptula statutorily ineligible; the BIA affirmed, concluding the Travel Act conviction necessarily involved illicit trafficking.
- Deptula petitioned for review, arguing the Travel Act conviction is not an aggravated felony because it may encompass non-trafficking conduct (e.g., small, non-remunerative transfers) and because the Act may punish attempts, which he says are too attenuated from "trading or dealing."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Deptula’s § 1952(a)(3) Travel Act conviction is an aggravated felony as "illicit trafficking in a controlled substance" under the INA | Travel Act conviction may cover non-commercial, de minimis, or non-felony drug conduct (e.g., small marijuana distribution without remuneration); attempt language makes conviction too remote from trafficking | The plea and superseding information identify a conspiracy to violate § 841(a)(1), and conviction under § 1952(a)(3) for carrying on a business enterprise implies commercial, ongoing trafficking; INA treats attempt and conspiracy as aggravated felonies | Conviction is an aggravated felony: Travel Act conviction, tied to a conspiracy to violate § 841(a)(1), necessarily involves illicit trafficking (a remunerative, business-like dealing) and attempt/conspiracy are covered by INA |
| Whether the categorical or modified categorical approach applies to the Travel Act | Deptula implicitly argues facts matter to show non-trafficking conduct | Government points to divisible Travel Act and plea documents to identify the predicate unlawful activity | Modified categorical approach applies because the Travel Act is divisible; plea and charging documents show the predicate was a conspiracy to violate the CSA |
| Whether the Travel Act predicate involves a federally controlled substance | Deptula at points equivocated but largely conceded the Travel Act conviction relates to a controlled substance | Government: Superseding information identifies conspiracy to violate federal CSA, so predicate is a federally controlled substance offense | The court treats this as conceded/established: underlying activity relates to a federally controlled substance |
| Whether an attempt or conspiracy conviction under the Travel Act qualifies as an aggravated felony | Attempt/conspiracy are too attenuated from actual trading or dealing | INA expressly includes attempt and conspiracy to commit an aggravated felony; therefore such convictions qualify | Even if the Travel Act conviction were for attempt, INA covers attempt and conspiracy, so it qualifies as an aggravated felony |
Key Cases Cited
- Evanson v. Attorney General, 550 F.3d 284 (3d Cir. 2008) (explaining illicit-trafficking element test and hypothetical federal felony test)
- Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (distinguishing categorical and modified categorical approaches)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (categorical approach principles for immigration consequences)
- Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) (quoting Matter of Davis on trafficking element analysis)
- Shepard v. United States, 544 U.S. 13 (2005) (limits on documents courts may consult under modified categorical approach)
- Taylor v. United States, 495 U.S. 575 (1990) (foundational categorical-approach doctrine)
- Ng v. Attorney General, 436 F.3d 392 (3d Cir. 2006) (jurisdiction over legal questions in petitions for review of removal orders)
- Rojas v. Attorney General, 728 F.3d 203 (3d Cir. 2013) (removability requires statute of conviction relate to a CSA-defined drug)
- United States v. Brown, 765 F.3d 185 (3d Cir. 2014) (limits on relevance of extra-statutory documents when statute is overbroad and indivisible)