Thomas v. Attorney General of the United States, 625 F.3d 134

Background

Omar Thomas, Jamaica-born, became a lawful permanent resident in the U.S. at age 13 and faced removal proceedings in 2007.
Thomas was convicted in New York for criminal sale of marijuana in the fourth degree (§ 221.40) in 1996 and 1998, with related allegations arising from police affidavits and plea records.
The Department of Homeland Security charged removal on two grounds: (i) aggravated felony conviction, and (ii) controlled substance offenses; cancellation eligibility hinged on not having an aggravated felony.
The IJ determined Thomas could not show his § 221.40 convictions were non-aggravated felonies, rendering him ineligible for cancellation of removal.
The BIA initially affirmed, mischaracterizing the IJ’s grounds but held the same result that Thomas was ineligible for cancellation due to the drug-conviction route.
Thomas sought review in the Third Circuit and simultaneously moved for BIA reconsideration; the BIA later reaffirmed its adverse ruling after reconsideration.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the November 2008 BIA decision was reviewable despite the 2009 reconsideration	Thomas asserts jurisdiction remains over the November 2008 order.	AG argues reconsideration vacated or mooted the earlier order, leaving no final order.	The November 2008 decision remains a final, reviewable order; Stone governs finality despite reconsideration.
Whether the June 2009 reconsideration vacated or materially altered the November 2008 decision	Thomas contends reconsideration did not substantially change the rationale.	AG contends reconsideration could modify or vacate the prior decision.	June 2009 did not vacate or materially modify the November 2008 decision; live controversy remained.
Whether Thomas's § 221.40 NY misdemeanors constitute aggravated felonies under the INA	Thomas argues the convictions do not categorically or hypothetically meet the aggravated-felony definition.	AG contends the convictions are drug-trafficking predicates via the hypothetical federal route.	They do not constitute aggravated felonies under either route given insufficient record to establish admission of remunerative sale.
Application of the modified categorical approach to the NY § 221.40 convictions	records are insufficient to prove the elements of a remunerative sale under the hypothetical federal felony route.	Records could show a remunerative sale via charging documents and plea records.	Because records lack clear admission of remunerative sale elements, the modified categorical approach cannot establish an aggravated felony.

Key Cases Cited

Stone v. Immigration and Naturalization Service, 514 U.S. 386 (1995) (finality of initial BIA order preserved despite reconsideration)
Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) (dual routes to aggravated felony: illicit trafficking and hypothetical federal felony)
Taylor v. United States, 495 U.S. 575 (1990) (formal categorical approach for determining felony status under 924(e))
Shepard v. United States, 544 U.S. 13 (2005) (modified categorical approach extends to guilty pleas)
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) (analysis of recidivist and facts underlying misdemeanor conviction under modified approach)
Evanson v. Attorney General, 550 F.3d 284 (3d Cir. 2008) (role of modified categorical approach to state marijuana offenses)
Johnson v. United States, 587 F.3d 203 (3d Cir. 2009) (limits of record evidence under modified categorical approach for violence crimes)
Jaggernauth v. Attorney General, 432 F.3d 1346 (11th Cir. 2005) (reconsideration decisions and live controversy doctrine)
Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. 2008) (reconsideration does not necessarily vacate prior order if rationale preserved)
Mu Ju Li v. Mukasey, 515 F.3d 575 (6th Cir. 2008) (reconsideration can vacate if new decision addresses arguments and changes effect)