Case Information
Lynch UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________ August Term, (Argued: June Decided: July 2016) Docket No.
____________ ROMMEL RICARDO COLLYMORE,
Petitioner –v.–
LORETTA E. LYNCH, Attorney General, Respondent . ______________
Before:
STRAUB, WESLEY, LIVINGSTON, Circuit Judges
______________
Petitioner Rommel Ricardo Collymore seeks review of January order of Board of Immigration Appeals affirming decision an immigration judge found removable alien pursuant to 1227(a)(2)(B)(i) for prior (1997), related substance. Applying approach, conclude statute, stood and DISMISS petition for for lack jurisdiction review order.
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LEMAY DIAZ and ADINO BARBARITO, Law Students (Jonathan Romberg, Esq.; Christopher Capitanelli Angelo Cerimele, Law Students, brief ), Seton Hall University School Law Center for Social Justice, Newark, NJ, for Petitioner .
JASON WISECUP, Trial Attorney, Office Immigration Litigation, Civil Division (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, John W. Blakeley, Assistant Director, Office Immigration Litigation, brief ), Department Justice, Washington, D.C., for Respondent
______________
WESLEY, Circuit Judge :
Petitioner Rommel Ricardo Collymore, a native citizen of Barbados, lawful permanent resident of United States, seeks of January 30, 2015 final order of Board of Immigration Appeals (“BIA”) affirming September 23, 2014 decision of immigration judge (“IJ”), which denied Collymore’s application cancellation removal.
See In re Rommel Ricardo Collymore
No. A041 730 196,
BACKGROUND
Collymore received lawful permanent ‐ resident status April 1989. On December 8, 1997, Collymore was violation 113(a)(30) (1997) Court Common Pleas Northampton County, Pennsylvania. On August 7, 2008, upon his return from trip Barbados, Collymore applied admission returning lawful permanent resident. Thereafter, August 2010, *4 Department Homeland Security served Collymore with a Notice to Appear immigration proceedings, charging him 1182(a)(2)(A)(i)(I) as an alien convicted a crime involving moral turpitude 1182(a)(2)(A)(i)(II) as alien substance offense.
During removal proceeding, Collymore admitted factual allegations concerning his criminal conviction but deferred to IJ to removability. On basis Collymore’s admissions, IJ sustained both charges, Collymore immediately sought cancellation removal lawful permanent resident. The IJ denied Collymore’s application relief but afforded him additional time to pursue post conviction relief state court related to his conviction. Collymore subsequently moved to terminate removal proceedings basis that his did not render him removable his was categorically substance offense crime involving moral turpitude.
Thereafter, IJ denied motion to terminate ordered him removed Barbados. Specifically, IJ determined 113(a)(30)—the convicted—was crime related federal because, IJ’s view, proscribed conduct would necessarily constitute law. IJ then relied Third Circuit decision, Abbott 2014), conclude was divisible and employed modified categorical approach, which examined Collymore’s record conviction to determine whether his conviction was controlled substance offense recognized by federal law. The IJ observed, based docket transcript certified state court, that Collymore’s conviction related to cocaine, which listed controlled under Controlled Substances Act’s (“CSA”) schedules substances. U.S.C. § (1997). [4] Accordingly, IJ concluded that Collymore was inadmissible under U.S.C. § 1182(a)(2)(A)(i)(II), further inadmissible under § 1182(a)(2)(A)(i)(I) involving possession necessarily constituted crime involving moral turpitude. appealed BIA, affirmed IJ’s
decision dismissed appeal. Like IJ, BIA determined that Collymore’s under § was match 1182(a)(2)(A)(i)(II), but that was divisible Abbott Like IJ, BIA found record reflected Collymore’s involved cocaine, federal substance, he consequently removable 1182(a)(2)(A)(i)(II), but BIA did reach question whether Collymore’s also qualified crime involving moral turpitude subject 1182(a)(2)(A)(i)(I). filed a timely petition for review this Court, challenging determination of BIA a conviction (1997) constitutes a violation of law relating substance purposes of U.S.C. 1182(a)(2)(A)(i)(II). Because we conclude does, we dismiss petition.
DISCUSSION
“Any alien who at any time after admission has been of violation of . . . . . . of State, . . . relating substance . . . is deportable” upon order of Attorney General of States. 1227(a)(2)(B)(i). Although we lack jurisdiction review “any final order removal against an alien who is removable reason having committed [federal substance] offense,” 1252(a)(2)(C), “[w]e retain jurisdiction . . . legal question . . whether underlying an order removal, denial relief from order removal, constitutes a[] [controlled substance offense],” Higgins v. Holder , F.3d (2d Cir. 2012) (per curiam). “The inquiry determines our jurisdiction: [i]f [Collymore’s] a[] [controlled offense], we must dismiss petition lack jurisdiction; if not, we may exercise jurisdiction vacate order removal.” Oouch U.S. Dep’t Homeland Sec. F.3d 2011). Thus, “the jurisdictional issue merges merits, are therefore required consider [Collymore’s] substantive argument”: his Immigration Nationality Act (“INA”). Higgins *7 I. L EGAL F RAMEWORK
In assessing whether under 35 Pa. Stat. Ann. 780 ‐ 113(a)(30) constitutes offense, “we use categorical approach looks elements the penal statute rather than particulars alien’s conduct.” Oouch , F.3d at 122. In doing so, we must determine “whether ‘every set facts violating [the state] statute’ satisfies criteria for removability” under INA, mindful “only minimum criminal conduct necessary is relevant.” Id. (quoting Abimbola Ashcroft F.3d 2004)). If, however, criminal statute is “divisible” into qualifying non qualifying removable offenses, we proceed “under modified categorical approach ascertain which class criminal act furnished basis defendant’s conviction.” Id. Where is neither categorical nor divisible, though, “our inquiry complete.” Id.
II. C OLLYMORE ’ S C ONVICTION IS C ATEGORICALLY A
C ONVICTION FOR A C ONTROLLED S UBSTANCE O FFENSE On appeal, parties maintain, they did before agency below, ‐ 113(a)(30) does constitute categorical match grounds 1182(a)(2)(A)(i)(II). That is, according parties, IJ BIA properly declined apply approach because, their view, some covered do *8 necessarily appear federal schedules controlled substances. In their view, this means criminalizes controlled do qualify as bases for removability under INA, thereby precluding approach.
We disagree; crime for convicted a controlled purposes INA, resulting removability.
The version question prohibits following acts:
Except as authorized by this act,
manufacture, delivery, or possession with
intent to manufacture or deliver, by person registered this act, or practitioner registered or licensed by appropriate
State board, or knowingly creating,
delivering or possessing with intent deliver, counterfeit substance. 113(a)(30). As noted, INA treats deportable “any alien . . . violation . . . any . . State . . . relating substance” defined CSA. 1182(a)(2)(A)(i)(II). CSA makes
unlawful person knowingly or intentionally—(1) manufacture, distribute, or dispense, or possess intent manufacture, distribute, or dispense, substance; or (2) create, distribute, dispense, or possess intent to distribute or dispense, counterfeit substance. 841(a)(1)–(2).
Federal and Pennsylvania law confer similar meaning to terms “counterfeit substance” (as used CSA) and “counterfeit controlled substance” (as used statute). CSA defines term “controlled substance” mean “a drug or other substance, or immediate precursor, included schedule I, II, III, IV, or V” schedules substances, id. 802(6), and describes “counterfeit substance” which, or
container or labeling which, without authorization, bears trademark, trade
name, or other identifying mark, imprint,
number, or device, or likeness thereof, manufacturer, distributor, or dispenser other than person or persons who fact
manufactured, distributed, or dispensed
such thereby falsely purports or represented product of, or have been distributed by, such other manufacturer, distributor, or dispenser,
id. 802(7). Although provides no definition term “counterfeit substance,” does contain separate definitions terms “counterfeit” “controlled substance.” It defines term “controlled substance” mean “a drug, substance, immediate precursor” listed schedules defines term “counterfeit” mean substance, other drug, device or
cosmetic which, or container or labeling which, without authorization, bears
trademark, trade name, or other identifying
mark, imprint, number, or device, or likeness thereof, manufacturer, distributor, or dispenser other than person or persons who fact
manufactured, distributed, or dispensed
such and thereby falsely purported or represented product of, or have been distributed by, such other manufacturer, distributor, or dispenser. BIA affirmed IJ’s conclusion
that, also covered conduct involving “other drug[s]” and “cosmetic[s]” were necessarily prohibited federally by CSA, id. broader than its federal counterpart and, such, did constitute crime relating substance. That interpretation statute, however, odds our duty consider most natural reading text context statute. Pettus Morgenthau 2009).
“[W]hen construing plain text statutory enactment, we do construe each phrase literally isolation. Rather, attempt ascertain how reasonable reader would understand statutory text, considered whole.” Id. When terms “counterfeit” “controlled substance” are taken isolation (as advocated IJ BIA), statute’s definition term *11 “counterfeit controlled substance” might be read more broadly. Under the most natural reading of these terms taken together, however, in the context of § ‐ 113(a)(30), the term “counterfeit” modifies the term “controlled substance,” such that “counterfeit controlled substance” encompasses only controlled substance that, consistent definition, is mislabeled, such that it falsely purports or represents product of manufacturer, distributer, or dispenser other than person persons who fact manufactured, distributed, or dispensed such substance. See Pa. Stat. Ann. ‐ Superior Court of Pennsylvania has reached same conclusion regarding range conduct proscribed ‐ 113(a)(30). Commonwealth v. Mohamud A.3d 80, & n.23 (Pa. Super. Ct. 2010) (“A counterfeit controlled is defined Act that mislabeled such that [it] falsely purports [be] product manufacturer other than manufacturer who created it.” (citing 102)). This reading makes sense given that focus substances, substances that Pennsylvania legislature has declined criminalize Pennsylvania substances schedules. Thus, text does suggest that might cast wider net than that CSA.
Moreover, comparison schedules effect time conviction,
cf. Mellouli Lynch
S. Ct. 1987–88 (2015) (explaining are compare drug schedules were enacted “[a]t time [the petitioner’s] conviction”), reveals schedules are
*12
broader than the federal schedules, they criminalize the same substances.
[6]
Compare
35 Pa. Stat. Ann. § 780 ‐ 104,
with
21 U.S.C. § 812. That is, the 1997 version the Pennsylvania statute Collymore was convicted broader than the federal definition all the substances proscribed by the Pennsylvania are also listed in the federal schedules substances in 21 U.S.C. § 802. Indeed, Third Circuit has previously observed same in similar case INA.
Clarke v. Ashcroft
Notably, neither IJ nor BIA took note Third Circuit’s decision Clarke Rather, they relied instead more recent decision from Third Circuit Abbott 154 2014), proposition that approach does apply § ‐ 113(a)(30). But Abbott readily distinguishable from facts presently before *13 us. Abbott involved criminal sentencing appeal where the Third Circuit was tasked determining whether ‐ 113(a)(30) was divisible under modified approach purposes determining whether convictions Pennsylvania statute qualified predicate offenses Armed Career Criminal Act (“ACCA”), 924(e). at 156. Critical that inquiry was type substance at issue because prescribed range penalties imposed violations ‐ 113(a)(30) varied based on its character. The identity drug involved in defendant’s statute, Abbott Court determined, was therefore an element crime had proven beyond reasonable doubt. Id. at Accordingly, Third Circuit concluded included several alternative elements and therefore divisible. Id.
Unlike Abbott , however, length sentence in criminal defendant’s prior has no bearing inquiry presently before us an immigration removal proceeding. Moreover, Abbott concerned assessment defendant’s prior against ACCA, and therefore lends no support case it did involve comparison between CSA. The relevant question before us whether counterfeit definitions proscribe same substances. We have no difficulty concluding they do. *14 Because we hold conviction under ‐ 113(a)(30) categorically under INA time his we need reach question divisibility apply modified approach our analysis. See Costa Holder 2010) (per curiam).
CONCLUSION
We have considered parties’ remaining arguments find them without merit. Because (1997) relating 1227(a)(2)(B)(i), lack jurisdiction review order. 1252(a)(2)(C). Accordingly, petition DISMISSED
Notes
[1] students appeared pursuant Local Rule 46.1(e). We wish express our gratitude Seton Hall University School Law Center Social Justice its pro bono legal representation able handling this matter.
[2] This was amended January Each reference hereinafter refers version convicted.
[3] According Collymore, his motion vacate his remains pending state court.
[4] federal schedules were amended July Each reference hereinafter refers version drug schedules effect time conviction.
[5] Because “the BIA has no interpretive responsibility over state criminal statute, de novo its interpretation” (1997). Oouch
[6] In urging us that schedules are broader than federal schedules, Collymore argues schedules list substances, such peyote salvia divinorum, were listed federal schedules. A schedules, however, reveals neither prohibited salvia divinorum, compare Pa. Stat. Ann. ‐ with both prohibited peyote, compare 104(iii)(11), 812(c)(12). Indeed, post argument letter this Court, conceded this point.
[7] Supreme Court’s recent decision Mathis No. WL at *8 (U.S. June 23, 2016), does purport overrule alter Abbott nor does have bearing issue this case.