Gurpreet Singh v. Attorney General United States
839 F.3d 273
| 3rd Cir. | 2016Background
- Gurpreet Singh, a lawful permanent resident, pleaded guilty in Pennsylvania to possession with intent to deliver a "counterfeit substance" under 35 P.S. § 780-113(a)(30) and an associated conspiracy count; plea documents and colloquy described the substance as a "PA Counterfeit Substance – Non Fed."
- DHS initiated removal proceedings charging Singh with removability as an aggravated felon (8 U.S.C. § 1101(a)(43)(B)) and other drug- and moral-turpitude–based grounds.
- The IJ found Singh removable after identifying the substance (from the criminal complaint) as JWH-122, a federally listed synthetic cannabinoid, and applied the modified categorical approach.
- The BIA reversed in part: it treated § 780-113(a)(30) as not requiring the modified categorical approach, concluded the record showed the substance was federally controlled, and found Singh’s conviction was an aggravated felony.
- The Third Circuit granted review, held the BIA erred by not applying the modified categorical approach to this divisible statute, examined Shepard-approved plea materials, and concluded Singh’s plea showed the substance was not a federally controlled substance; therefore the conviction was not an aggravated felony.
Issues
| Issue | Plaintiff's Argument (Singh) | Defendant's Argument (Gov't/DHS) | Held |
|---|---|---|---|
| Whether § 780-113(a)(30) is divisible as to drug identity or requires only a categorical approach | § 780-113(a)(30) is divisible; drug identity is an element so the modified categorical approach applies | BIA treated the statute as not requiring modified categorical approach (categorical only) | Divisible; modified categorical approach required |
| Whether Shepard-approved plea materials identify the particular controlled substance and permit comparison to the federal CSA schedules | Singh argued plea materials identified the conviction as a PA counterfeit, not a federally scheduled substance | Government urged remand to BIA or that IJ analysis under modified categorical approach was not properly before the court | Court reviewed plea agreement and colloquy and found they show the substance was not federally listed |
| Whether Singh’s conviction matched the generic federal offense (a felony punishable under the CSA) | Singh: conviction involved a PA-only counterfeit substance and thus does not match the federal elements (which require a federally scheduled controlled substance) | Government: BIA found record reasonably showed a federally controlled substance (JWH-122) and treated conviction as aggravated felony | Held that Singh’s conviction did not categorically match the federal offense and was not an aggravated felony |
| Proper role of the "realistic probability" inquiry and burden of proof for removability | Singh: when elements differ, courts should not apply a broad realistic-probability test to override Shepard documents showing non-federal substance | BIA used a realistic-probability style inquiry and required less-than-clear-and-convincing showing | Court rejected BIA’s relaxed standard here and reaffirmed government must meet clear-and-convincing standard using Shepard documents when elements differ |
Key Cases Cited
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (categorical approach and realistic-probability principle in immigration–drug cases)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means; use of modified categorical approach for divisible statutes)
- Lopez v. Gonzales, 549 U.S. 47 (2006) (state offense is a federal "felony punishable under the CSA" only if it proscribes conduct punishable as a federal felony)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (limits on examining case facts; scope of categorical/modified categorical approaches)
- Shepard v. United States, 544 U.S. 13 (2005) (which plea-colloquy and record documents are permissible to determine the crime of conviction)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (modified categorical approach is a tool implementing the categorical approach)
- United States v. Abbott, 748 F.3d 154 (3d Cir. 2014) (drug type that increases penalty is an element of § 780-113(a)(30))
- United States v. Tucker, 703 F.3d 205 (3d Cir. 2012) (prosecution must prove the substance was one enumerated in Pennsylvania schedules for § 780-113(a)(30))
- Evanson v. Attorney General, 550 F.3d 284 (3d Cir. 2008) (discussion of aggravated-felony routes and categorical approach)
- Restrepo v. Attorney General, 617 F.3d 787 (3d Cir. 2010) (de novo review applies to legal question whether an offense is an aggravated felony)
- Duenas-Alvarez v. Gonzales, 549 U.S. 183 (2007) (realistic-probability test referenced in categorical-approach context)