950 F.3d 67
3rd Cir.2020Background
- Willy de Jesus Rosa, a lawful permanent resident, was convicted in New Jersey (2004) of distributing/possessing with intent to distribute cocaine within 1,000 feet of school property under N.J. Stat. § 2C:35-7.
- DHS charged Rosa with removability for a controlled-substance offense and as having committed an aggravated felony (a "drug trafficking crime") under INA § 1101(a)(43)(B).
- The Immigration Judge applied the categorical approach, compared the NJ school-zone statute to the federal school-zone statute (21 U.S.C. § 860), found the state statute broader, and granted cancellation of removal.
- The Board of Immigration Appeals reversed, comparing Rosa’s conviction to the general federal distribution statute (21 U.S.C. § 841) as a lesser-included federal analog, concluding an aggravated felony and ordering removal.
- Rosa appealed to the Third Circuit, arguing the categorical comparison must use the most similar federal analog; the Third Circuit agreed the BIA erred in allowing comparison to any federal provision and remanded because the record was insufficient to resolve divisibility of the NJ statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the categorical approach permits comparing a state conviction to any federal offense or only the most similar federal analog | Rosa: comparison must be to the single most similar federal analog | Gov: INA allows comparing to any federal felony under the CSA, including lesser-included offenses | Court: categorical comparison is limited to the most similar federal analog |
| Whether the BIA is entitled to Chevron deference interpreting §924(c)/"any" | Rosa: BIA not entitled to deference for interpreting incorporated federal criminal statutes | Gov: BIA interpretation entitled to Chevron deference | Court: no Chevron deference here; interpreting federal criminal law is outside BIA’s special competence |
| Whether the Federal Distribution statute (§841) is the proper federal analog to NJ §2C:35-7 | Rosa: NJ statute includes a school-location element; analog must include same elements | Gov: §841 may be used as a lesser-included federal analog | Court: §841 lacks the school-location element; the federal school-zone statute (§860) is the proper analog |
| Whether the record shows NJ §2C:35-7 is divisible (so the modified categorical approach can be used) | Rosa: if indivisible, statute must be compared as a whole and may not match the federal analog | Gov: argued BIA could compare to §841; did not contest divisibility here | Court: record lacks plea/charging documents to resolve divisibility; remand to supplement record; if record cannot satisfy certainty, no aggravated felony finding |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (origin of elements-based categorical approach)
- Shepard v. United States, 544 U.S. 13 (2005) (limits documents courts may consult when applying categorical/modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (clarifies elements vs means and the divisibility inquiry)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (applies categorical approach to drug offenses for immigration consequences)
- Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (addresses when simple possession qualifies as a federal felony for INA purposes)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (explains the categorical approach)
- Descamps v. United States, 570 U.S. 254 (2013) (discusses the modified categorical approach and divisibility)
- Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) (Third Circuit application of categorical approach to controlled-substance convictions)
- Petersen v. United States, 622 F.3d 196 (3d Cir. 2010) (recognized §841 as a lesser-included offense of §860)