Edward Walker v. Attorney General United States
625 F. App'x 87
3rd Cir.2015Background
- Walker, a Ghanaian who entered on a student visa, pled guilty in Pennsylvania to possession with intent to distribute marijuana.
- While serving his sentence, DHS issued a removal order treating the conviction as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(B), triggering summary removal and barring discretionary withholding.
- DHS relied on state court paperwork (a judgment of sentence) that referenced 187 grams of marijuana — an amount that, under the CSA, would make the offense a federal felony.
- Walker sought withholding of removal and CAT protection, which delayed finality of the removal order and preserved judicial review; he later petitioned for review after those proceedings ended.
- The Third Circuit applied the categorical/modified categorical approach and held that the Pennsylvania statute (35 Pa. Cons. Stat. § 780-113(a)(30)) is broader than the federal CSA felony because it encompasses small-amount, no-remuneration distributions that the CSA treats as misdemeanors; the court also held that certain factual findings in the judgment of sentence could not be used to narrow the conviction under Evanson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Walker’s PA conviction is an "aggravated felony" under the INA (CSA-based felony) | Walker: PA statute is broader than CSA felony; conviction could rest on small-amount distribution treated as a federal misdemeanor, so not an aggravated felony | DHS: State judgment showing 187 grams shows felony-level conduct; conviction therefore qualifies as aggravated felony | Held: Conviction does not necessarily qualify; statute covers conduct that the CSA treats as a misdemeanor, and the court may not rely on the judgment-of-sentence factual assertion to establish a divisible, felony-level offense under the modified categorical approach |
| Whether the court has jurisdiction to review the removal order | Walker: Withholding/CAT proceedings made the removal order nonfinal until those proceedings concluded; petition timely | DHS: Claimed the order had been "cancelled" or otherwise not reviewable; earlier argued exhaustion/remand | Held: Court has jurisdiction under 8 U.S.C. § 1252; no statutory authority canceled the order and prior exhaustion arguments were withdrawn or unavailable |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (Sup. Ct. 2013) (establishes categorical/modified categorical approach for state drug convictions and focuses on whether state offense necessarily proscribes federal felony conduct)
- Evanson v. Attorney Gen., 550 F.3d 284 (3d Cir. 2008) (limits use of factual assertions in Pennsylvania judgments of sentence when assessing crimes under the modified categorical approach)
- Catwell v. Attorney Gen., 623 F.3d 199 (3d Cir. 2010) (discusses quantities that trigger felony punishment under the CSA in immigration context)
- Jeune v. Attorney Gen., 476 F.3d 199 (3d Cir. 2007) (recognizes that Pennsylvania statutes can be applied to small-amount marijuana distribution under broader subsections)
- Morales-Izquierdo v. DHS, 600 F.3d 1076 (9th Cir. 2010) (explains when a removal order is not "final" because it is inextricably linked to pending relief proceedings)