Ramiro Enrique Rojas v. Attorney General United States

careful decision to credit the great soundness of took pains in addressing the restitu- regression DeRosa’s reliability tion issues over an period extended trading records necessary time, insofar as requiring repeated efforts approve inevitably approximate esti- government to obtain a proper valuation mate of the restitution Any amount. iden- for losses under the particular circum- potential imprecisions tified by stances, what is in light peculiar chal- imprecise its nature an process would not lenges, presented by the case before it. It render the restitution amount estimate un- relied on qualified expert guide. as a reasonable. We can identify no clear error of fact or

* * * mistake of law that the court committed in reaching, care, with such its result. return We to where began, we the inex- pertness judges of most in most technical

matters, including the forces afoot in the CONCLUSION securities markets impact and their on the For foregoing reasons, the district prices any particular security at any court’s restitution order is affirmed. particular time. We must rely therefore testimony on the professionals ap-

propriate expertise. The district court Appendix Enrique ROJAS,

Ramiro Petitioner ATTORNEY GENERAL OF STATES, the UNITED Respondent: No. 12-1227.

United States Court of Appeals, Third Circuit. Panel Merits

Argued before 1, 2012.

on Oct. May Banc

Reargued En 23, 2013. Aug. Filed:

Opinion [ARGUED], Shagin

Craig Shag- R. PA, Group, Tracey Harrisburg, in Law M. Hubbard, Offices, Scranton, PA, TMG Law Petitioner. for General, Holder, Jr., Attorney Eric H. Delery, Acting F. Assistant Attor- Stuart General, Division, Cindy S. Ferri- ney Civil er, Director, Hussey, Thomas W. Assistant Oliveira, Federighi [AR- Andrew J. Carol GUED], Hayes, Office of Im- Timothy G. Litigation, Division, migration Civil Wash- must show that the conviction DC, ington, Respondent. for which it seeks to foreign remove a national involved or was related to a feder- McKEE, Judge, Before: Chief controlled, ally substance. The record here SCIRICA, RENDELL, AMBRO, as to the drug involved. Ac- silent FUENTES, SMITH, FISHER, cordingly, we conclude that Depart- CHAGARES, JORDAN, HARDIMAN, ment failed to meet its burden and remand GREENAWAY, Jr., VANASKIE, the case for agency to determine GREENBERG, SHWARTZ and Circuit whether Department may have anoth- Judges. er opportunity to Rojas’s demonstrate that federally involved a controlled substance. THE

OPINION OF COURT Rojas Petitioner Ramiro entered the I. FACTUAL AND PROCEDURAL

United permanent States as lawful resi- BACKGROUND dent in years 2003 when he was 12 old. A. later, years Rojas pled Six guilty pos- sessing drug paraphernalia in violation of Rojas 22-year is a old citizen of the Pennsylvania law and pay was ordered to a Dominican Republic who entered the Unit- fine and court Department costs. The ed States in 2003 as a permanent lawful (the Security Homeland “Department”) resident and has resided in the country then removal proceedings initiated against ever since. In Rojas December pled Rojas, contending that he guilty was removable to possessing drug paraphernalia having for violated a law “relating to a and was assessed a fine and court by costs (as controlled substance defined section the Court of Common Pleas of Lackawan- 21).” Title County, na Pennsylvania.1 U.S.C. 1227(a)(2)(B)®. § Rojas sought to termi- Contending that this conviction rendered proceedings nate the theory that Rojas removable under Section 237 of the offense constitutes the basis of Immigration and Naturalization Act removal must involve a substance defined (“INA”), instituted remov- 21, ie., in section 802 of Title York, al proceedings against him in Penn- substance, but that the Depart- sylvania. provides: This statute ment had failed to meet such a burden Any alien at any who time after admis- particular this immigration case. The sion has been convicted of a violation of 1227(a)(2)(B)® agencies disagreed § (or violate) conspiracy attempt or imposes requirement and ordered Ro- State, regulation law or of a jas removed. States, foreign United or a country re- (as lating to a controlled substance de- Rojas’s

After consideration of petition 21), fined in section 802 of Title other a three-judge panel review of our single than a involving posses- offense Court, sponte we sua ordered that the case sion for one’s grams own use of 30 be heard en banc. See Third Cir. I.O.P. marijuana, deportable. less of (2010). 9.4 grant Rojas’s We now petition that, for review and 1227(a)(2)(B)® conclude in a removal (emphasis add- ed).2 proceeding 1227(a)(2)(B)®, charges brought pursuant

1. The Initially, were charged Rojas to 35 also 780-113(a)(32). Pa. Stat. Ann. as removable on the basis of a March 20 an alien’s state-law conviction for derlying

B. that is possessory offense is one the Immigra- proceeding In the before 102 of Section the Controlled Sub- (“IJ”), Department submit- Judge tion (“CSA”) App. Act 129a-30a. [ ].” stance[s] colloquy and a Rojas’s guilty plea and ted Rojas regard, Pennsyl- noted that pertaining to the complaint criminal police controlled-substances schedules list vania’s guilty plea case. drug paraphernalia not in drugs that are the federal schedules pled colloquy state that the official record of contended 2,500"fine,” App. yr, Para “Drug [sic] respect is silent his conviction (plea colloquy), plea); 186a (guilty 185a agree The parties substance involved.3 paraphernalia or not indicate what but do that, conviction, time of the crime was involved what substance Pennsylvania’s criminal com- controlled-substances police The of conviction. hand, states that the contained three narcotics that on the other schedules plaint, cigar pa- of “loose paraphernalia consisted not then the federal schedules— were plastic baggie” marijuana. per “l-(3-trifluoromethylphe- and orphan,” [a] “dextr However, due to serious issues App. 190a. nyl)piperazine,” “propylhexedrine.” document, reliability of this regarding 1-3, to Br. at Resp’t’s Resp. See Letter IV.C, Part and because De- see Oct. infra argued that the fact of partment conviction removable, Rojas alone rendered neither C. nor immigration agencies parties police

ultimately relied on criminal Rojas’s denied motion to termi- The IJ of ma- complaint. record uncontested nate him proceedings and ordered re- agencies was thus silent terials before the Republic, the Dominican moved to conclud- to the substance involved ing that “a state’s statute need not paraphernalia conviction. align perfectly with the in order for CSA” to drug-paraphernalia conviction serve as

Rojas proceed- moved to terminate App. for removal. 53a. Al- plain basis ings, arguing language of “[t]he 1227(a)(2)(B)(i)(a) though the IJ reasoned that requires “[t]his De- ] [§ [the prove highly un- partment] makes sense” because doubt- “[fit’s (1992) guilty plea possession Pa.Super. to one count of of 617 A.2d (less marijuana amount (explaining a small of than 30 conviction obtain a grams) 35 Pa. violation of Stat. Ann. possession paraphernalia "the of Com- however, 113(a)(31). Subsequently, § pos- 780— must establish that the items monwealth this conceded that were used or intended to be sessed[] used not render removable fell did because it substance”). Pennsylvania with a controlled 0-grams escape within the less-than-3 clause law further defines "controlled substance” 1227(a)(2)(B)(i). Accordingly, only §of substance, drug, precur- as "a or immediate drug-paraphernalia conviction is at issue. through sor V [the included in Schedules I of Substance, Pennsylvania Drug, Controlled objects many 3. The Commonwealth includes Device, Stat. and Cosmetic 35 Pa. Ann. Act].” drug paraphernalia, definition in its of includ- contrast, 780-102(b). law, by § Federal de- ing typically innocuous items blen- such as the CSA fines “controlled substance” in as a ders, bowls, balloons, see 35 Pa. Stat. substance, "drug pre- or other or immediate 780-102(b), § Ann. but defendant cannot be III, IV, cursor, I, II, in schedule V guilty violating included or of found part subchapter,” B but "does law unless he used or intended an to use wine, object spirits, with a beverages, connection substance crimi- malt include distilled law, by Pennsylvania § 802(6). nalized 780- id. § or tobacco.” U.S.C. Torres, 113(a)(32); see also Commonwealth v. However, for an Congress ful would intend alien to removal. U.S.C. 1252(a)(2)(C) immigration consequences for escape provides that “no court foreign convicted under a State or being jurisdiction shall have any review final simply controlled substance law order of removal an against alien iswho CSA,” id., drug was not in the listed he having removable” for been convicted import ruling address the of his did not on violating a law to a controlled “as defined in section 802 of the words substance”

Title 21.” 1227(a)(2)(B)(iX Although the BIA’s or der falls within this jurisdiction-stripping appeal Immigration to the

On Board provision, jurisdiction we retain to ascer (“BIA”), Appeals Rojas reiterated the ar- ie., “(1) jurisdiction, tain our to determine gument plain language “[t]he Sec- (2) petitioner whether the is an alien and INA requires tion whether he has been convicted of one order that in for a conviction make an the enumerated offenses.” Borróme removable basis of a alien on the con- Gen., Att’y (3d 150, 154 Cir.2012); offense, Depart- [the trolled substance 1252(a)(2)(D) (“Noth- see also 8 U.S.C. prove by must and convincing clear ment] (B) ing (C), in subparagraph or in underlying evidence the substance an provision chapter other of this ... which state is one law conviction covered alien’s judicial review, limits or eliminates shall BIA, be by” however, The CSAApp. 7a. as precluding construed review of ... disagreed. squarely also The BIA did not questions upon of petition confront law raised a for the issue a of whether noncitizen review filed appropriate with an court of could be removed for a conviction involving section.”). appeals in federally that accordance "with this a substance is not controlled. Instead, it focused on the statute’s use of We need not decide the of standard the words concluded that applicable review unpublished to the BIA’s drug-paraphernalia statutes “relate to” decision in this See De Leon-Ochoa casé. despite controlled substances the lack of Gen., Att’y v. 622 F.3d 348-51 n. 5& equivalence between the schedules of Cir.2010). (3d reach the We same conclu- particular a State and the federal sched- regardless sion of whether we review the Accordingly, ules. BIA affirmed the novo, see, e.g., BIA’s decision de Denis order of removal. Gen., (3d Att’y 208-09 Cir. (cid:127) Rojas then for stay filed motion of 2011) (suggesting de novo review is proper Court, we granted, removal this, case, involving such a puré petition and this of the for review BIA’s legal removability), issue as to or whether decision. we review it under the deferential Chevron see n id. standard, (recognizing that defer- II. JURISDICTION AND STANDARD to an agency’s interpreta- ence reasonable OF REVIEW ambiguous statutory tion of language jurisdiction IJ Rojas’s The had over re- be appropriate). would proceedings moval under 8 U.S.C. 1229a. jurisdiction

The BIA had to review the IJ’s III. THE PARTIES’ ARGUMENTS underlying order of removal and its denial Rojas’s A. Contentions of motion to terminate under 8 1003.1(b)(3) §§ 1240.15. C.F.R. review, In his petition for reit- generally jurisdiction argument We have under he simple has ad- erates. throughout 1252 to final these proceedings: review orders of vanced that Does proof. it requires” Department’s burden “quite unambiguously the INA that Department under to show deportability require that, prove “in order to 1227(a)(2)(B)(i), Department] a sub- noncitizen’s conviction involved [section con- Rojas’s criminal in section 802 of that Mr. “defined show stance must argues possession Department substance 21”?4 The Title viction was in the federal sched- no need what substance ... contained there is to show that is 12, 14. Br. at listed in Pet’r’s involved whether was [CSA].” ules con- particular long as there argues that his the federal schedules so He further giv- requirement fit between those schedules and not meet this “close” viction does Pennsylvania criminalizes sub- Br. at 19. Pennsylvania’s. Resp’t’s en that words, under federal contends illegal Department that are not other stances did not iden- removed for a that a noncitizen be law and his state-law underlying involving offense substance tify the substance criminalizes, long controlled sub- as that as a a state so conviction the CSA approximate schedules stance. state’s schedules. Department’s B. The View frames the instead IV. ANALYSIS (generic) as “whether a question [Pennsylvania’s law] Language A. The ... law ‘a violation of ... constitutes Statutory Textual In- Canons relating ... to a controlled ... of a State terpretation (as in section 802 ” 21).’ The De- Resp’t’s Br., Title statutory interpretation, In cases to this contends the answer partment the terms of begin looking “we in the of the “for- application lies question and the ‘commonsense provisions [at issue] under which categorical approach,” mal conception’ of those terms.” Carachuri a con- generic “becomes whether the issue Holder, 563, v. U.S. 130 S.Ct. Rosendo 560 ... is a viction (2010) 2577, 2585, (citing 177 L.Ed.2d 68 ‘fit’ to controlled sub- enough close Gonzales, 53, 47, Lopez v. 549 U.S. 127 Id. at 17-18. The stances.” (2006)). 625, 166 462 As the S.Ct. L.Ed.2d that posits generic paraphernalia further empha Supreme repeatedly Court has “fit,” con- regardless do offenses sized, inquiry in “all” cases ceases if “[t]he trolled substance involved. statutory unambiguous.” language is Co., Sigmon v. 534 But, Depart- if Barnhart Coal U.S. even we assume correct, 450, 941, 122 151 L.Ed.2d S.Ct. drug-paraphernalia ment is that (2002) (internal omitted). substances, quotation mark “relate statutes concedes, see, Thus, whether Rojas e.g., determine point a 237(a)(2)(B)(i) 29, 2013), requires INA a Arg. (May at 9:30-9:35 Oral underlie a straightforward ques- controlled substance does not address conviction, turn first to statutory we must we interpretation state-law tion itself, which, as the text of law noted parenthetical tackle on the effect of the 21)” earlier, “(as provides that: 802 of Title defined section " parenthetical.” language this 'as de- "the 4. We refer to as simply parenthetical,” as fined’ or sometimes 1227(a)(2)(B)(i) time after Any any requires alien who at admis- sion of a violation of has been convicted to establish that the it individual seeks to (or violate) (1) attempt (2) conspiracy or remove is an who at any alien time State, of a regulation law or entering country after violated or at- States, foreign country re- United or tempted to a law relating violate to a (as lating to a controlled substance de- (3) controlled substance 'and that the con- 21), fined in of Title other section 802 trolled súbstanee is defined as such involving posses- than single offense (1) (2) federal law. Points are not at grams sion for one’s own use or issue this case. marijuana, deportable. less of is simple A example why further illustrates (emphasis 8 U.S.C. add- reading of the statute is correct. Sec- ed). 802(6) of tion Title 21 states that “[t]he written, Reading the statute it is term ‘controlled substance’ means a drug “(as parenthetical clear that the substance, other or or precur- immediate 21)” section 802 of Title restrictive sor, I, II, III, IV, included in schedule or V only modifier that its affects immediate part B subchapter. of this The term term, antecedent “a controlled substance.” spirits, wine, does not include distilled malt explained, As the Seventh Circuit has tobacco____” beverages, or Putting the parenthetical “can be read to modify provisions two together, INA effective- substance,’ ‘controlled its immediate ante- ly.renders removable noncitizens convicted cedent,” “bridges and thus the state law under laws “relating to controlled sub- crimes with federal definitions of what (‘a drug stance or other substance ... counts as a controlled substance.” Desai II, III, IV, I, included in schedule or V (7th Mukasey, v. Cir. ...[,] spirits, wine, not including] malt 2008); see also Disabled in Action v. SEP- tobacco’).” beverages, then, or Suppose, (3d Cir.2008) n. 13 F.3d TA Pennsylvania has its own con- —which (explaining that under the “‘rule of the trolled-substances schedules which ,... [,] limiting last antecedent’ ‘a clause or free to add not in substances the federal ... phrase ordinarily should be read as lists—chose to include tobacco its sched-

modifying only phrase the noun that it ules, pos- convicted immediately (quoting follows’” Barnhart sessing paraphernalia. tobacco Given the Thomas, 20, 26, 540 U.S. S.Ct. express exclusion of tobacco from the fed- (2003))).5 157 L.Ed.2d 333 substances, eral list of controlled would a complete anomaly place Rojas be to then Thus, straightforward the most in removal for 1227(a)(2)(B)(i) proceedings possessing reading § to- of is that to es Indeed, paraphernalia. bacco such a re- tablish removability Department the must would violate cardinal principle that “a sult the controlled substance” includ show cripple by in that we do not ed the of statutes render- definition substances section ing 802 of words therein as superfluous, Title 21 involved the the De- was of crime Parsing conviction partment’s reading at issue. the would have us do to different See, parenthetical. clauses with the aid of the the “as defined” e.g., “last anteced that, whole, Walker, 167, ent” 174, canon reveals as a Duncan v. 533 U.S. 121. interpreted containing language. 5. Desai 8 the of INA identical See 1182(a)(2)(A)(i)(II), language IBP, Alvarez, 21, 34, whose is iden- Inc. v. 546 U.S. 126 S.Ct. tical to in all 514, material re- (2005). 163 L.Ed.2d 288 spects. analyze interchangeably provisions We 210 (“It (2001) beans; a it is not to con- 2120, 251 because related L.Ed.2d 150

S.Ct. effect, every if possible, to listed in the federal duty give trolled substance our statute.”) (quoting a Desai, and of This clause word 520 F.3d case CSA.” 528, Menasche, U.S. holdings United States from the in Ruiz-Vidal follows (1955) 513, 538-39, 99 L.Ed. 615 reasoning S.Ct. and from the S-Yong omitted)); (internal Cush marks quotation Desai. Corp., F.3d

man v. Trans Union (“We Cir.1997) (3d avoid strive to a Department the 3. The of Views statutory lan- render result would the BIA in Other Contexts irrele- meaningless, or superfluous, guage being by supported In addition to vant.”). plain text and persuasive statute’s case law, reading our of the statute proposed Law 2. Relevant Case by fifty the BIA. Almost accepted has been con support for this find further We BIA years ago, the terminated removal of Ninth Cir decision struction against an alien convicted un- proceedings Appeals have cuit—the first Court selling California law of a “narcotic” der meaning “as squarely addressed law although the “California re- because concluded parenthetical defined” —which a narcotic marihuana viola- late[d] language as we do that the means tion[,] ... being record silent as to the that a state- Department must establish ...[,] possible narcotic involved it [was] a drug law involved conviction involved Ruiz-Vidal v. Gon controlled substance. (such peyote) as which is a narcotic under (9th Cir.2007) zales, abroga 473 F.3d [wa]s California law but not defined by Car grounds recognized tion on other narcotic under federal law.” Matter Holder, 495 Fed.Appx. dozo-Arias v. (BIA Paulus, N. 11 I. & Dec. Cir.2012). (9th case, In 792 n.l 1965). Analyzing predecessor that to hold other- Ninth Circuit' reasoned 1227(a)(2)(B)®, that “only BIA held out of wise would “read the statute the possession illicit of ... a conviction for to Section explicit [Title reference [8]02 substance which is defined as narcotic n. re- Id. at 1077 5. It therefore 21].” laws can be basis removability order versed BIA’s deportation proceedings.” Id. intro- Department had not BIA completely ignored here Paulus. duced evidence to show what substance reading This has also advocated been possess- Ruiz-Vidal had been convicted of Ruiz-Vidal, itself. 1080; ing. Fung Id. at see also S- Cheuk required that it conceded (9th Holder, Yong v. to show that the conviction at issue was for Cir.2010) to a convic- Ruiz-Vidal (applying possession of a substance “not listed tion under a statute criminaliz- California ... also in the California statute con- but transportation sub- ing tained ... the Controlled Substances stances, Department where the failed to Ruiz-Vidal, 473 1077 n. Act.” F.3d at a federally whether controlled establish involved). Similarly, argued Department has to The Seventh substance was parenthetical this Court that means agreed, de- noting Circuit that the “as that the substance “must be if controlled one parenthetical fined” means that “a state for jelly CSA]” in order [the to of defined under decides outlaw distribution beans, satisfy provi- conviction to the INA’s then it would have no effect on state 19, Br. at v. jelly Resp’t Att’y deal for Gul immigration one’s status to sions.

211 (3d Cir.2009) (No. Gen., virtue of an Fed.Appx. asymmetry between the Fed- 09-2675), And, 2009 WL *19. eral and State ... schedules.” Id. These case, very in this while focused on whether grounds two factually alone legally and “relate to” con- paraphernalia statutes distinguish Espinoza. substances, Department per- trolled But, to Espinoza the extent that intend- unwittingly that haps conceded ed to limit the Department’s obligation to 1227(a)(2)(B)®

reading correct, §of establish a federally controlled substance noting, example, parenthetical for that the only to proceedings those based on restrictive, [and] “is modifies immedi- (or “possessory” to offenses the extent ate antecedent —the term ‘controlled sub- ” that Espinoza reads stance,’ Resp’t’s Br. at and that the way), disagree that we illogical requires law that the “statute of conviction atextual interpretation of substances,” ‘relate to’ controlled 1227(a)(2)(B)® that compels. view added). Thus, at 21 (emphasis id. cannot surmise from the any We text sup- Department’s to the notion resistance that port for the proposition Depart- a controlled substance must be ment’s proof changes burden of depending is, least, say to perplexing. involved type on the of drug offense involved in the Unfazed, Department urges us not and, indeed, removal proceeding, the stat- Paulus, to follow relying Ruiz-Vidal or speaks “any” Moreover, ute of law. com- primarily Espinoza, 25 I. Matter & of mon sense indicates that there should be (BIA 2009), Dec. proposition N. for the square no difference —we cannot the text holding of cases those should be law with world which a a nonciti- limited to convictions that involve actual “l-(3-tri-' zen be for deported using possession of substances. We fluoromethylpheny)piperazine” parapher- persuaded. are not nalia, but not “possessing” for the drug Espinoza involved an individual who was itself. nothing Espinoza, And there is to, subject of, sought but cancellation re- 1227(a)(2)(B)®, let alone in help us moval, granted which upon could be a logically determine offenses are showing that the individual had not been “possessory” are not. Espino- and which any convicted of law to a con- ’s, purported za limitation of Ruiz-Vidal to (as trolled substance in section “possessory” offenses has been under- 21).” Title by subsequent applying mined decisions 1182(a)(2)(A)(i)(II). Despite his convic- crimes, may may that case to not marijuana tion for possessing pipe, Espi- See, require possession drugs. actual argued noza could Holder, e.g., Mielewczyk “support finding inadmissibility (9th Cir.2009) (involving 995-96 the crime unless the was tied offering to transport drugs); S-Yong, specific, federally controlled substance.” (addressing F.3d at convic- 25 I. Espinoza, & N. Dec. 121. The transporting attempting tion for disagreed, BIA noting both the con- substance's). transport controlled' The bet- “possessing marijuana viction was for .parenthetical captures ter view is that the pipe, argument [so] little rele- th[e] ha[d] vance,” all controlled-substances of- and that it was Espinoza’s offenses— involving particular drug (possess- fense prove eligibility adjustment burden to status, it, ing it, using paraphernalia he had the “burden resolve transporting etc.) it, any might by issue that arise in his case in connection with if is-removable comport grammar not and leads plain the federal list.6 drug the is on Congress to could not have intend- results Department’s Alternative 4. The ed. Reading the Parenthetical of essence, Department’s In is proposal last offers one alterna- The say the statute to that remova- re-read tive, that statute urging because a “relating ble convictions are those “relating to a con- speaks of a conviction (or in (relating closely substance controlled (as in defined section 802 trolled substance kind) in to a defined section 802 substance 1227(a)(2)(B)(i) 21),” Title of 21).” reject of We this artificial re- Title added), required all that is (emphasis draft —we will not to” to construe of “relate to” that substance modify more than one clause and will we substance,, or that a federally a controlled - arbitrarily not into the text insert as a whole “re- particular State’s schedules Lopez, to” “in kind.” words “close or differently, late to” the CSA. Stated Cf. (rejecting a U.S. S.Ct. requires establishing this view the statute of a statute from “a rewriting convoluted only that the State schedules and/or are felony involved suffi- under the to “a particular punishable CSA” if ciently “close” to federal substances felony the CSA punishable under whether Resp’t’s not Br. at the match is “exact.” felony”). or a not as (Oct. 20; Arg. see Oral 18:00-18:15 also Moreover, the to” test re- “close would 2012) only that (arguing parenthetical quire immigration agencies and federal requires that the the State substances experts capable courts to become of lab related “in kind” those schedules are any determining whether substance crimi- schedules). theory pre- This federal l-(3- any given State, by nalized such as sumably disposes any requirement of that trifluoromethylphenyl)piperazine, is “close the substance of conviction be established any to” “relates to” of or hundreds when the offense removal listed in substances the CSA schedules. territory crime state our Cir- Yet we are left to our own devices to cuit, that to the extent we believe all of precise ascertain the new contours of this particular jurisdiction’s controlled sub- “close to” test and it turns on stances, whole, whether as a are or its schedules chemical, medicinal, physical, “relate or other as- “close to” or federal lists. of-yet-unknown But this reading properties drugs.7 does rejected contradictory reasoning Espinoza, the BIA also the no- These lines of stand paraphernalia tion that a conviction cannot in stark contrast to the Ninth and Seventh lead to removal there is no internally more views. Circuits' consistent drug-paraphernalia INS, The statute. BIA rea- recognize, per Both Circuits Luu-Le v. as parenthetical soned (9th the "as defined” Cir.2000), 224 F.3d 911 and Escobar (i.e., Barraza, "modifies its immediate antecedent respectively, stat- substance’), whole 'controlled text of not despite utes "relate to” controlled substances impose the section” and does not therefore parentheti- defined” existence the "as requirement that the crime of conviction “re- time, recognize,. per the same cal. At both federally Espinoza, late to” a crime. Desai, conviction must Ruiz-Vidal (citing I. &25 N. Dec. at 122 Escobar Barraza involve because of (7th Cir.2008)). Mukasey, parenthetical. agree, why, given We at a but are loss as to its dissent refer- parenthetical dismisses concern view modifies the im- term, ring jelly product” beans as a "harmless mediate antecedent BIA does agree by noting that if a state included tobacco the controlled substance at issue be included in we must the federal schedules. its definition of controlled substances And the “close to” test would fare no that are commonplace in the United applied totality better if to the a particu- States, poppy such as seeds. Although schedules-ie., lar if import state’s has, Congress occasion, allowed non- argument were to removal permit uniformity by tying immigration conse- showing particular without that a federal quences law, to state here explicit ref- long was involved so aas state’s erence to section 802 of Title 21 shows are, whole, schedules sufficiently as Congress has “pegged the immigration schedules, “close to” the federal or if a statutes to the Congress classifications it- “many” “vast number” or of the state’s self just plausible [I]t chose.... not CSA, appear substances in the see Dissent- Congress meant to authorize a State to ing Op. unexplained just at 225. It is left overrule its judgment about the conse- many how substances a state would have quences of ... offenses to which its immi- to include in its lists that are not in the gration expressly law refers.” Lopez, 549 lists before drug-related its of- 58-59, 625; U.S. at 127 S.Ct. see also longer qualify fenses would no as remova- Desai, 520 F.3d at 766 (reasoning that offenses, ble or whether inclusion of a par- because of parenthetical, states do not (such ticularly odd jelly as beans have “free rein to define their criminal or large sugary beverages) would suffice. laws in a manner that would allow them to Congress specific We doubt included a ref- ... determine' permitted who is to enter erence to the federal schedules and live in country”); Lozano v. of. removability have turn on these unwork- Hazleton, City 314-16, inquiries.8 able 07-3531, (3d No. 2013 WL at *13 Finally, Department’s reading would 2013) July Cir. “the im- (highlighting result in a patchwork removability rules portant national interests that are impli- dependent on the whims of the legislatures governments cated when local attempt fifty effectively permitting states — regulate immigration and the concomitant them may to control who remain regulation need to leave such in the hands country via their controlled-substances of the federal government”).9 schedules—not to mention the laws- of all nations, foreign ban-substances spared having, would be to make these diffi- also at odds and the cult by Supremacy determinations or Com- parenthetical may only BIA's view that challenge problematic merce Clause to the modify the immediate antecedent term "con- Dissenting Op. state statute. See at 227 note "relating trolled substance” but not to.” See jelly 3. But merely beans and tobacco are two supra good goose note 6. What is for the must poignant examples. actuality States have in good gander be for the the clauses of —either criminalized substances various times that modify they the text more than one term or beans, easily jelly are not as dismissed as such reject Department's do We not. view of Paulus, peyote. See I.11 & N. Dec. at 275. shifting powers transitive of the different And, Department, like dissenting our col- 1227(a)(2)(B)(i). clauses of leagues way distinguish offer no doctrinal removing Rojas today, between despite the agree 9. We with the that Con- substance, lack of a gress may choose to remove noncitizens who removing pos- individuals convicted of violate the controlled-substances laws of other sessing non-federally controlled substances states, jurisdic- nations or of the even if those tomorrow. tions choose to criminalize substances differ- 1227(a)(2)(B)(i), proposed reading Congress Arg.

8. This ent than chose. See Oral 29, 2013). But, "relating (May modifies both "controlled 54:54-55:10 if it wishes so, parenthetical, substances” as well as the Congress explicit to do must excise the 214 reasons, contentions some that the text We address these we hold these

For they ignore long-standing 1227(a)(2)(B)® Depart- detail requires §of approaches governing rules when such national’s foreign that a ment to establish a (1) may applied be and reflect fundamental relating law under a is both conviction rules as (2) misunderstanding of those delin- substance, and involved to a controlled by.our and by Supreme eated Court in section a implicated Court. to all effect reading gives of 21. This Title view, and, in our most the statute

words of Categorical and 1. The Formal Mod- intent in draft- Congress’s comports Categorical Approaches ified docu- undisputed the law. Because the ing categorical It is well-established that such show- the IJ contain no ments before is a method often used ascer- approach and the order record is defective ing, the prior a “fits” tain whether conviction invalid. removal is predicate a generic federal definition purposes immigra- offense for of certain Interpretative Mechanisms to B. Other sentencing consequences. tion or The ar- Construe States, Taylor case is v. United chetypical course, the rule last anteced- of the Of past where the issue was whether state construction, ent, canons of is not like most “burgla- burglary conviction constituted Barnhart, 26, 124 absolute. 540 U.S. that term in the ry” as is used Armed But the offers no Department S.Ct. 376. 924(e)(1) Act, Career Criminal 18 U.S.C. text to meaning” from the “other indicia (“ACCA”), thus certain triggering sentenc- Instead, us not follow it. Id. convince the ACCA. 495 ing enhancements under rather following its focus to” 575, 578-79, 2143, 110 S.Ct. U.S. defined” parenthetical, (1990). than the “as Supreme The L.Ed.2d Court posits that the to the answer proper held method answer question whether a drug-paraphernalia question categorical approach, “relates to” substances statute controlled requires a court to determine whether by analytical doctrine provided a conviction under statute the state “neces- categorical ap- as the sarily” known “formal contained all of the elements of the (cit- See, offense, proach.” e.g., “burglary,” by Br. at 13 Resp’t’s federal baseline 144, Ashcroft, ing Singh comparing v. elements state (3d Cir.2004)). Taylor, The contends crimes. 495 U.S. 601- also applying that the cases that doctrine 110 S.Ct. 2143. The Court has ex- paren- performing compari- demonstrate that the defined” plained “as son, consequence thetical is of little the court must assume that state [nojthing a non-federally upon controlled law conviction “rested more result least in removal. than the acts” criminalized the[] counters that known as the state law. v. variant See Johnson United States, 136-37, categorical approach” “modified should 559 U.S. S.Ct. (2010). govern. parties The spar about 176 L.Ed.2d 1 method- also ology may whether cases the words “relat- also be used to determine construing crime ing past statutes such offense “fits” a listed whether 1227(a)(2)(B)® See, e.g., demonstrate in the INA. Dueñas- Gonzales Alvarez, 183, 185-87, parenthetical is irrelevant. 549 U.S. S.Ct. reference to substances from the statute. (2007) (determining relatively 166 L.Ed.2d 683 unitary categorical concepts— past

whether a conviction constitutes a (cid:127)like ‘forgery’ ‘burglary’ ... ...' or ‘crime ” offense”). “theft Singh, violence.’ 383 F.3d at 161.10 It is also a fundamental rule that courts But not one of these cases involves a applying categorical approach may determination of whether a state offense is delve into particular (or the facts a convic- one “relating to” controlled substances if proper tion to ascertain there is a fit. else), and, to” anything needless 599-602, Taylor, See say, U.S. S.Ct. to none interpretation involves an Department urges 2143. The that meaning this parenthet- of the “as defined” disposes any requirement Thus, rule ical. it unsurprising is that despite .a federally controlled in- repeated substance must its invocation of the categorical be. any given volved in conviction for purposes approach analyze 1227(a)(2)(B)®,, determining whether conviction cannot maintain that qualifies as a removable offense under law—-which broadly refers to crimes “re- 1227(a)(2)(B)®. lating to” any controlled substances —lists discrete against offense which Pennsylva- reasoning, Depart- With this line of paraphernalia nia’s statute can be com- imply categorical ment seems to that the pared. Accordingly, assuming even approach proper analysis is the rubric of question presented in this case was every required time we are to determine whether drug-paraphernalia statutes “re- whether a conviction fits into the definition substances, latte] controlled the formal INA, of a crime referenced in the or at the categorical approach apply. would not very least whether fits into 1227(a)(2)(B)®. deeply This view is It is true that the categorical approach Recently, Supreme flawed. permits deviation, Court ex- a slight known as the plained categorical approach ap- categorical modified approach, from the plies when compare one must the defen- baseline rule that an inquiring court or the dant’s noncitizen’s conviction to a not particular look into the circumstances “generic crime” such as “burglary” or of a conviction. When a statute of convic- — Holder, “theft.” alternative, v. U.S. tion lists elements in the some Moncrieffe - n , 1678, 1684-85, 133 S.Ct. 185 L.Ed.2d fit the federal definition and some (2013) Holder, (citing Nijhawan not, v. 557 of which permitted do a court is “to 29, 37, 2294, U.S. 129 S.Ct. 174 L.Ed.2d 22 consult a limited class of documents ... (3d (2009), Cir.2008)). affg 523 F.3d 387 determine which alternative formed We made a similar point years almost ten basis of the defendant’s prior conviction.” — ago, noting generally States, we had applied Descamps U.S.-, v. United element-by-element comparison 2276, 2281, 133 S.Ct. 186 L.Ed.2d 438 (2013).11 categorical approach in interpreting “cases years Singh, In the since example we have consis- 11. The basic when a state defines tently applied categorical approach "burglary” "breaking entering" to see into generic, whether state crime fits into dwelling. only breaking uni- vehicle aor Because tary offenses,” crimes such as dwelling generic "serious into a meets the federal defi- Tucker, nition, United States v. 703 F.3d 208-09 the statute of does not cate- conviction (3d Cir.2012); crime,” crime, "drug trafficking gorically fit within the federal but the Gen., Att’y Thomas v. categorical approach 142-44 may provide modified (cid:127) (3d Cir.2010); See, or the "sexual e.g., Taylor, abuse of a mi- an answer. 495 U.S. at 599- nor,” Gen., Restrepo Att’y (addressing F.3d 110 S.Ct. exam- (3d Cir.2010). admonition, ple). Contrary to the dissent’s Moreover, Pennsylvania’s simply not the case that it is

But disjunctive, fills the categorical approach phrased the modified statute not for void, a blanket invitation provides the federal satisfying with some elements underlying into the facts inquire court and some not —it does baseline offense categorical ap time the every “effectively ‘several different create[ ] an answer. As provide does not proach employ could not crimes’ ” —so one recently explained, the Supreme Court approach categorical modified simply “a mechanism methodology is Id. event. 2285.13 [required making comparison th[e] Thus, categorical approach the modified un approach] a[n when categorical formal Here, we apply does not in this case. multiple, alternative derlying] lists statute the exis- obligation derive establish elements, ‘sever effectively creates and so ” of a tence (last Id. at 2285 ... crimes.’ al different Our simply from the text the law. Nijhawan, (quoting original) alteration in is into holding inquire not an invitation to 2294).12 Indeed, 41, 129 S.Ct. 557 U.S. at relitigate underlying or circumstances the ap categorical modified given that the every drug of a conviction —the existence merély implementing a “tool for proach is federally will be es- controlled substance approach,” id. 2284, at categorical way in the existence tablished the same definition, say then, nothing it has by normally itself is estab- the cate conviction this one — where cases — such as itself irrelevant. lished.14 gorical approach see, 161; Attorney Singh, at 383 Evanson v. General tion issue.” F.3d at our decision in (determin- Nijhawan, e.g., F.3d at support proposition that 392-93 we does ing categorical an of- approach whether a conviction constitutes apply the "could” fraud or in which Op. fense "involves deceit Dissenting this case. See 222-23 F,3d $10,000”) (3d Cir.2008)). (quoting loss ... exceeds (quoting In 1101(a)(43)(M)(i)). Evanson, (and There is no con- categorical applied we removability tention conduct at issue approach categorical) to determine modified 1227(a)(2)(B)(i) implicates §in the rationale generic, fit whether a conviction another uni- Nijhawan. like of cases crime, felony” tary namely, "aggravated an Evanson, F.3d at 291-92. under the INA. fitting question 14.Were we to insist on categorical presented approach, here into the provision Descamps construed odd results would follow. Even if we could ACCA, The BIA has stated its not the INA. subject Pennsylvania's drug-para- somehow categori- may apply the view that modified element-by-element phernalia to an statute approach broadly in the context cal more offense, comparison against we some federal the INA whatever is mandated courts than drug- would be to conclude that the forced construing the ACCA. See Matter of Lanfer- "sweeps broadly” statute more 2012). man, (BIA 25 & N. Dec. I. do, Descamps, 133 than federal statutes rejected any we notion that But have Pennsylvania S.Ct. at criminal- analysis depending on whether the is different illegal izes are not fed- substances that the INA federal statute resides in baseline categorical approach, eral law. Under See, Gen., Att’y e.g., the ACCA. Jean-Louis then, "inquiry over” and no [would be] (3d Cir.2009). 478-80 And the underlying pos- examination of the Supreme decisions Court’s and Moncñeffe improbable sible. Id. 2286. Under Descamps, analyzing interchangeably both categorical many application approach, cases, clear that INA ACCA make Lanfer- Pennsylvania offenses under law could abrogated. man has been offense, unless, never constitute a removable permitted say, they specific an depart are from the contain as element a Courts categorical "relating This approach to” substance that is controlled. cases entirely plainly "when the terms the statute invite incorrect result demonstrates categorical approach red.herring here. inquiry underlying the into the facts convic- Involving “Relating lating 2. Cases to counterfeiting” depends on whether it “seeks to discourage Statutes the act of (citation counterfeiting” and internal alter- apply to cases that the for- addition omitted)).15 ation categorical approach, par- mal/modified sure, line of has allel but distinct cases devel- To be this line of cases would situations in oped address which the provide proper analysis rubric of if the presented relevant federal conduct is not question at issue was whether parapherna- generic, unitary as a crime but as a con- lia statutes “relate to” controlled sub- “relating stances, viction to” other crimes or ob- party neither contests. cases, jects. In these do not courts re- But the extrapolate asks us to quire element-by-element a strict match to” cases to conclude that so between the offense of conviction and the long as a state’s controlled-substances baseline, (and- the hallmark of the cate- schedules “show[ ] substantial obvi- Instead, intentional) gorical inquiry approach. fo- ously overlap” with the federal schedules, cuses on the nature of the defendant’s a drug-paraphernalia conviction conviction, and whether it re- “stand[s] satisfies the removability provision of lation,” “pertain[s],” “bearing has of con- even if the actual sub- n cern,” object or “refer[s]” to the or crime stance involved is not evident from the Desai, of comparison. 520 F.3d at 764 Resp’t’s 28(j) record conviction. Letter Airlines, (quoting v. 1-2, 22; Morales Trans World Aug. at 2012. This we decline to Inc., 374, 384, 504 U.S. 112 S.Ct. 119 proposed do. The “relating use of the to” (1992)). L.Ed.2d 157 merely cases is a repackaged' version of argument “relating to” modifies analysis, used this form of We for exam- both “controlled substance” as well as the in ple, Attorney Denis v. to deter- General parenthetical, “as defined” reading we mine whether state conviction for tam- already rejected. words, have In other pering physical evidence constituted a “relating the invitation to read to” as mod- “relating justice.” crime to obstruction of ifying parenthetical thinly- is but a (3d Cir.2011). 633 F.3d 204 We held suggestion permit veiled that we those did, not because of “precise parenthetical entirely. words excise the degree similarity between the elements IV.A.1, Supra 4. Parts of Denis’s offense and a listed federal crime,” but rather on based the “interrela- 3. in Our Decision Borróme v. Attor- tionship” between the state statute and ney General 212; justice.” “obstruction of Id. at see Gen., Yong Wong Att’y also Park v. 472 The and the dissent also (3d Cir.2006) F.3d (holding rely extensively Attorney Borrome whether a statute of conviction is one “re- General for the idea that the substance Indeed, many deciding object drug paraphernalia cases whether a is not unless it is in Desai, drugs way statute "relates to” drugs”); involve statutes of some linked to F.3d analog, (holding conviction that have no exact federal at 765 that a state statute criminaliz- substances, making impossible comparison ing of ele- sale look-alike categorical approach requires. analog, ments that the law with no to” federal-law ‘.'relates See, Luu-Le, e.g., (concluding compar- at F.3d controlled substances not á based on elements, that a state statute "relates to” ison of but because conviction for controlled substances not on basis of the look-alike substance “would not even (or categorical approach, legal linguistic) concept but rather exist as a without abundantly drugs). "[t]he statute makes clear that an its connection” to Le, irrelevant, (describing at a law that offense is F.3d in

involved not address the effect relates substances one that but that case did to controlled thus and is parenthetical the “as defined” plainly “is intended to criminalize behavior If Bor- anything, here. controlling involving production drugs”). or use of the differ- clearly rome demonstrates most But, because we concluded the FDCA categorical approach ences between “relating was not to” a a law to” line of cases. In that “relating and the substance, we stated that the substance Borrome, sense, “repudiating” far from conviction in underlying the Borrome was 227, we it. Op. at embrace Dissenting words, irrelevant. In other we did not Food, have under the occasion Borrome address the Borrome was convicted (“FDCA”) of en- Drug, meaning parentheti- Act defined” and Cosmetic of the “as in the unauthorized distribution gaging cal.17 drugs, and prescription certain we.had Moreover, concluding that the FDCA conviction determine FDCA whether CSA, not relate to the we did trafficking crime,” “drug was a .and/or prohibits noted Borrome that the FDCA statute

whether the FDCA one “relat- completely “countless activities that are ing controlled substances unconnected to controlled substances” and 1227(a)(2)(B)®. 687 F.3d at In 152-53. also that connection between the sub- question, applied first answering the we stances in the and at listed CSA those approach the categorical to determine issue was “not at the FDCA all evident whether the elements convic- FDCA from face of [the statute] tion to the corresponded elements of a emerges journey through after a other generic trafficking “drug crime.” See id. laws.” reference to answering ques- 155-59. second two simply schedules showed tion, ordinary we relied on “broad one common link between the FDCA meaning” of the words to” and CSA, the in overlap some of the sub- “range of target- focused on the behavior” each, stances at issue under was itself so by ed Bor- the FDCA. Id. 160-62.16 finding rome attenuated that it did not warrant aptly illustrates our application thus offenses, “relate to” question of the first we FDCA CSA of- must ask under 1227(a)(2)(B)®: Thus, fenses. contrary whether a Id. at 161-63. to statute Department “relating conviction criminalizes conduct and the dissent’s admoni- tions, 223-25, 227, to” Dissenting Op. controlled substances. Lvm- See also see in Boirome we also While referenced the offense of conviction with the elements 16. categorical approach analyzing when this sec- aof federal law cannot be the sole test for rejecting ond so in question, we did the IJ's determining whether a crime of conviction particular consideration of the facts offense,” generic 'relates a to' petitioner’s underlying conviction. See 687 concluding tampering that an offense for with way F.3d & n. 7. But at 159-60 in no does evidence "bears a close ... resemblance to support Department’s Borrome contention justice” obstruction of and thus constituted approach categorical proper that the is the "relating justice”). crime to obstruction of analysis in all of In- rubric of these cases. deed, while we also made to the reference Similarly, despite Department’s exten- Denis, categorical approach in that case we Luu-Le, only sive ad- reliance Luu-Le reality engaged "relating in traditional drug dressed whether statute analysis, as indicated earlier IV.B.2. at Part "relating Denis, was a law to” a controlled sub- See (explaining 633 F.3d at 211-12 stance, Congress’s and did not reach "as defined” give ”[t]o effect choice of lan- guage, categorical matching parenthetical. 224 F.3d at 915. of the elements principle by does not stand for' the idea that on its letting Borrome head between the correspondence methodologies the level of different contort the words and a state’s schedules of the statute.18 federal schedules to its laws is outcome- respect Rojas’s Remedy C. determinative.

We now address the proper reme dy to reverse the ruling BIA’s —-whether respect The bottom line with to the fore- or to remand the case to the BIA so that it going analysis is that not one of the cate- may determine the first instance wheth gorical approach cases addresses the effect er to further remand to give the IJ to parenthetical “as defined” Department proverbial second bite at the Department’s on the apple. Instead, proof. they burden dictate that, Department asks if we deter- match an how exact the between un- establishing mine that the involvement of a derlying of conviction a federal statute and. required, we baseline offense to be in order to has remand case so that it make the satisfy federal law. The same is true of a adequate showing under the cat- “modified categorical common theme unites the egorical approach.” Resp’t’s See Br. at 13 approach and the to” cases—the n. 11. But we have already concluded that rule that the existence of a conviction is application of categorical approach by established not reference to the under- would, remand, counseling rather than lying facts of a case but reference-to inquiry mean that “the is over.” Des- underlying Although statute. the De- 2286; camps, 133 S.Ct. at see supra also partment and the dissent seek to import Nevertheless, note because the De- case, merely that rule into this the rule partment purports to be able to make the explains how the must meet required showing way the same it estab- burden, its not what that burden is. lished the existence of the criminal convic- simply There is no doctrinal basis to trans- place, tion in the first we will remand the form of these into a mechanism rules BIA. solely matter to the Our remand is so Department’s to lessen the burden alto- BIA may determine whether it is gether or to use them read a clause appropriate to remand the case to further entirely removability out of the statute. IJ, permit make rules, And the existence these diverse required showing agency. the before that applicable depending on how the INA offense, phrases decision, highlights guide baseline an To the BIA’s we note the First, important point: following. normally proper the text of the law is that always paramount. wording way of the the fact of a conviction is establish always proper rely Taylor-Shepard baseline crime dictates the on the so-called documents, analysis. of ought why method We not turn and we see no reason Holder, dealing 18. precisely We decline to follow Mellouli v. resorted to cases .with (8th Cir.2013), 719 F.3d 995 on which the question to solve the additional of issue relies, wrongly because it as- whether the must establish that a “categorical approach” sumed that the is the issue, federally controlled substance was at proper "relating inquiry. focus of the Id. addressing without' cases like Ruiz-Vidal Moreover, although at 1000-01. the Mellouli burden, actually Department’s deal with the petitioner conceded that stat- see, 997, on, e.g., (relying among id. at generally "relat[e] utes to” controlled sub- others, Barraza). Luu-Le and Escobar stances, id. at the Court nevertheless whether to remand the points deciding in federally controlled sub- existence of similarly established. case to the IJ. cannot be stance States, 544 U.S. v. United Shepard See L.Ed.2d 205 23-24, 26, 125 S.Ct. V. CONCLUSION (2005). guilty plea,” the case of a “[I]n turns on the of this case The outcome plea of “the consist these documents and, 1227(a)(2)(B)(i), in par- plain text of compa- colloquy, or some agreement, plea ticular, language parentheti- of the judicial record of the factual basis rable of Title 21.” cal: “as defined section 802 Moncrieffe, 133 S.Ct. at 1684 plea.” this clause means that We conclude that omitted). (internal But marks quotation that is the controlled-substances conviction police that a crim- recognized also

we have must involve or relate the basis of removal underly- may establish the complaint inal “defined in” federal law. to a substance it a conviction to the extent ing fact of as re- qualify Most convictions will charging instrument with cer- serves as a reading. In- movable offenses under this See, reliability. e.g., Garcia tain indicia of deed, (3d guilty plea jury instructions in Gen., 287, 292 Att’y Cir. 2006) Pennsylvania drug-paraphernalia convic- (so complaint bore holding when the normally drug at tion will list the issue attorney). of the district “imprimatur” however, that a of the statute re- regard, (given In that we reiterate violation reliability police presence criminal com- actual or intended of a quires already grave here is doubt. For plaint drug), Pennsylvania’s and most of specific one, approved by it it states was simply list. It drugs are on the federal attorney phone” “via in a Commonwealth checking of if the sub- will be a matter appears to re- space where document at issue is contained in that list. stance approving from an attor- quire signature Thus, rejection “to the extent that our Moreover, prepared ney. Octo- understanding the Government’s broad months after ber of seven may scope have [this statute] Finally, probable the affidavit of arrest. practical policing effect on our Nation’s complaint inexplica- to the cause attached borders, it is a limited one.” Carachuri- bly narrates the arrest of a woman June Rosendo, And, 130 S.Ct. be driving. of 2009 for drunk sure, Congress may change trigger Second, removability by altering deleting police criminal complaint —or —the Today, parenthetical. contents of the we implicates Supreme here Court’s re- wary attempts simply give cent admonitions to be effect to the statute’s most n relitigate prior convictions based on docu- reading. natural meaning ments often [which] “the will grant Rojas’s petition will for review We uncertain,” or when “the statements of be and remand the case to the BIA for fur- downright wrong.” fact in be them proceedings ther in accordance with this Indeed, Descamps, 133 S.Ct. opinion. charging generally implicate documents Supreme “during concern that Court’s GREENBERG, Judge, Circuit hearings, wish plea the defendant not dissenting. by squab- irk the prosecutor to or court indicated, this mat- majority As the has bling superfluous allegations” about factual Enrique on Ramiro ter is before this Court in a document does not constitute the review of a decision plea. Rojas’s petition for basis of a defendant’s actual Id. We 17, January BIA BIA and order of the dated trust will consider these substance” within the of dismissing appeal meaning his from a decision section (“IJ”) 1227(a)(2)(B)® Sep- Pennsylvania dated because the immigration judge anof of a 2011. The case arises from the definition controlled substance “is tember Pennsylvania expansive” state more than in 21 that a that found circumstance (the §- Rojas, a citizen of the U.S.C. “Controlled court convicted Substances Do- “CSA”) permanent and lawful Act” or and thus his did Republic minican conviction (“LPR”) States, necessarily of the United involve a controlled sub- resident guilty of to state stance as pleas CSAApp. the basis of his defined at 128 (internal omitted). use/possession drug para- quotation of marks charges of possession marijuana. regard, Rojas pointed of out that phernalia of.Homeland state court record of his conviction did not Thereafter Security (“Department”) sought specify to the controlled involved remove Rojas’s Rojas pursuant to . 8 in his offense. The IJ denied mo- 1227(a)(2)(B)® of con- tion by reason those and sustained controlled substance 1227(a)(2)(B)® provides charge removability against Rojas victions. Section a removal BIA that: issued order. The dis- Rojas’s appeal missed from the IJ’s deci- any time after Any alien who at admis- petition sion and then filed a for has convicted of a sion been violation panel review with this Court. After a violate) (or attempt or conspiracy argument this Court heard oral but before State, of a any regulation law or opinion it issued its the Court on its own States, foreign country or a re- United initiative ordered that the matter be heard (as lating to a controlled substance de- by Following argu- the Court en banc. 21), 802 of Title other fined section Court, majori- ment before the en banc involving single posses- than a offense I ty granting petition now is but am grams sion for one’s use of 30 or own dissenting deny petition as I would for marijuana, deportable. less of review.1 (cid:127) . Although the- later con- Ultimately presents single this case Rojas’s posses- conviction for

ceded that straightforward question: was con- marijuana did not render him re- sion guilty plea viction on his under 35 based pass movable because it did not the 30- (West 780-113(a)(32) Pa. Ann. Stat. gram statutory for removable threshold 2003) use/possession drug parapher- marijuana, it continued seek remove ... of a nalia a “violation of law State separate him on the basis of his (as relating ... to a controlled substance involving drug Rojas filed paraphernalia. 21)” section 802 of Title under a notice to terminate the removal proceed- 1227(a)(2)(B)®. 780- section Section him ings pending against before an IJ 113(a)(32)prohibits: arguing use/posses- that his conviction for of, drug paraphernalia Pennsyl- possession sion of The use with intent use, drug paraphernalia purpose vania law did not to a controlled for the “relate[ ] majority any approach 1. The that it not mat- case does not matter for under indicates does legal ter whether it reviews the BIA's conclu- deny petition this Court should for review. de novo or reviews them under sions majority Unlike-the I make scant reference to principles Supreme Court set forth in opinions jurisdictions from other Chevron, U.S.A., Inc. v. Natural Resources De- meaning of section is clear on Council, Inc., 467 U.S. 104 S.Ct. fense simply reaching my I its face and result (1984), agree 81 L.Ed.2d 694 and I rely on the text of the law as written. scope review that the Court uses in this 222 in U.S.C. cultivating, Id. Under CSA Act].” propagating, planting, 802(6) means: § manufacturing, “controlled substance” harvesting,

growing, substance, converting, producing, or immediate compounding, or other analyz- I, II, III, testing, in1 preparing, included schedule processing, precursor, storing, IV, part subchapter. contain- B of this ing, packing, repacking, or V injecting, ingesting, spir- in- not include distilled ing, concealing, -The term does tobacco, its, wine, introducing beverages, into the malt haling or-otherwise or used in subti- in those terms are defined body human a controlled substance Revenue Code of tle E of the Internal of this act. violation held that Pennsylvania courts have conviction does Rojas contends that his possession

sustain conviction 1227(a)(2)(B)® within section be- not fall Pa. Ann. under 35 Stat. not establish cause the did 780-113(a)(32), § “the Commonwealth the unidentified the CSA includes possessed, the items must establish underlying para- his state-law substance to be used with a were used or intended as a controlled sub- phernalia conviction v. controlled substance.” Commonwealth argues that “in Torres, Specifically, stance.' he Pa.Super. 617 A.2d (1992). law, deportability prove [section order Pennsylvania part in 1227(a)(2)(B)®, 780-113(a)(32), Department] must broadly tracking section show that Mr. criminal conviction “drug paraphernalia” means: provides possession Was for of a substance that is equipment, products and materials [A]ll Pennsylvania not listed under the con- used, kind which are intended for schedules, con- trolled substance but also planting, in designed use or for use tained in the federal schedules of the Con- har- propagating, cultivating, growing, trolled Substance Act.” Petitioner’s br. compounding, vesting, manufacturing, Rojás contends that inasmuch as the producing, processing, pre- converting, identify record of his conviction does testing, analyzing, packaging, paring, involved in his offense and substance repackaging, storing, containing, con- Pennsylvania schedules list more sub- cealing, injecting, ingesting, inhaling or counterparts, stances than their federal his human introducing otherwise into the necessarily conviction is not one body a controlled substance violation (as to a of this act. 21).” section 802 of Title 780-102(b) (West Ann. 35 Pa. Stat.

2003). Rojas’s drug par- A “controlled substance” in Penn- To determine whether substance, conviction renders sylvania drug, aphernalia possession is “a or immedi- I him to section precursor pursuant ate included Schedules removable 1227(a)(2)(B)®, “apply a Pennsylvania Controlled the Court could through V [the Substance, Device, Drug, categorical approach.”2 formal Evanson Cosmetic gravated felony” Immigration application under the 2. Such an would be consistent (INA), seq. Supreme holding Nationality Act 1101 et with the Court's recent Holder, U.S.-, explained, "[w]hen 133 S.Ct. As the Court Govern- Moncrieffe (2013), qualifies alleges L.Ed.2d 727 in which the ment state INA, categorical ‘aggravated felony’ applied ap- [it] as an under the Court the formal 'categorical approach’ proach generally employ[s] a determine if a conviction for a is com- Georgia "illicit traf- to determine whether the state offense state offense constituted substance,” ficking parable an in the INA.” 133 in a controlled 8 U.S.C. offense listed (citations omitted). 1101(a)(43)(B), “ag- an S.Ct. at and therefore was omitted). (3d Moreover, particularly sig- Gen., as is Cir. 550 F.3d Att’y v. (citation 2008) quotation nificant here the Borrome also and internal Court in omitted) an of- (discussing whether out pointed marks that: aggra- to an amounts fense of conviction an alien claims that the basis of Unless Immigration and under the felony vated alleged removability single his is ‘a of- Act). approach, Nationality Under involving for one’s own possession fense “must look applied, BIA a court which the marijuana,’ grams use of 30 or less of statutory definitions of to the only not, 1227(a)(2)(B)® does ask to courts offenses, consider other and not prior an indictment and sniff out scour alien’s ... the defendant’s concerning evidence substance, or a controlled otherwise crimes, particular ... facts including an underlying look to the facts of alien’s Borrome v. underlying a conviction.” conviction, to determine whether Cir.2012) (3d Gen., 150, 155 Att’y 687 F.3d inquiry alien is removable. Such an omitted). (citations But alterations important irrelevant. The would be and BIA should Rojas-contends that the IJ statutory phrase ‘relating is to a con- approach categorical a modified have used substance,’ it ‘law trolled and modifies judicially number of in which “a limited ’ regulation. Mielewczyk See v. Hold- be consid- documents [should noticeable (9th er, Cir.2009); 575 F.3d see whether the alien was to determine ered] Gonzales, also Mizrahi removable offense.” in fact convicted of a (2d Cir.2007) (noting that 8 U.S.C. majority, The how- br. at 15. Petitioner’s 1182(a)(2)(A)(i)(II), which is the inad- ever, by applying result does not reach its missibility counterpart to 8 U.S.C. categorical ap- either a formal or modified 1227(a)(2)(B)®, if the ‘applies Rather, that it reaches explains proach. regulation” “law or violated relates “simply from the text of the law.” its result substances’). analysis An Majority at 214-15. But no typescript of conviction is regulations the laws or it should be approach is taken matter what Therefore, our task is to de- required. wrong argument evident whether the FDCA’s wholesale termine deny petition his and that the Court should 21 U.S.C. provisions, distribution for review. 353(e)(2)(A), §§ are laws ‘re- 331(f) and of cases my I limit discussion Though (as lating to a controlled substance’ courts, in Borrome opinion from other our believed) to have whether the IJ. seems for, explain, I will discussion as requires ‘re- Borrome’s conviction the facts of por- a critical majority repudiating to a controlled substance.’ lat[e] Borrome, dealing tion of that case. added). impor- (emphasis at 159 The Id. relationship between the Federal in Bor- foregoing statement tance (“FDCA”) Food, Act Drug, and Cosmetics I and if I could would rome is obvious that “the this Court observed CSA doubly emphasize the last sentence. [‘relating expan- interpreted to’] BIA has drug paraphernalia Pennsylvania sively: ‘relating concept to’ has [t]he relationship to in the same law stands ordinary meaning, namely, to stand broad 1227(a)(2)(B)® provi- as FDCA section relation; bearing or con- in some to have in Borrome the Court considered sions cern; refer; bring into asso- pertain; [or] ... of State “law[s] both are or connection with.” Bor- ciation with Thus, question before rome, States.” United (quoting F.3d at 160 Matter (BIA Pennsylvania now is whether the Court 25 I. & N. Dec. Espinoza, pos- 2009)) (some controlled substances quotation internal marks Borrome, however, recog- was con- In session law under Court that although nized the definition of “con- relating to controlled victed was statute trolled substance” under a state law need § defined in U.S.C. substance as map perfectly “not with the definition question just as Borrome in CSA,” ‘controlled substance’ under the id. violated were whether the FDCA sections (some omitted), quotation internal marks controlled substances relating laws ’ phrase ... ‘relating “the must have 1227(a)(2)(B)(i). On this within section limits, beyond all-logical lest it be bent majority’s point notwithstanding the con- meaning.” Accordingly, Id. at 162. be no doubt. clusion there should phrase Borrome the Court held that “the Borrome, an IJ found an alien re- ‘any relating law ... to a controlled sub- pursuant movable 8 U.S.C. stance’ reaches those laws that do not 1101(a)(43)(B) 1227(a)(2)(A)(iii) require §§ the actual involvement of a con- and be- conviction,” trolled substance for a but aggra- cause he had convicted of an been stated that equally “we are convinced that felony vated of the as violation FDCA automatically a law does not come within 331(t) 353(e). §§ set forth in 21 U.S.C. and phrase the ambit of that simply because a 687 F.3d at 153. The IJ also found a- involve controlled- sub- alien removable under section (emphasis original). stance.” Id. at 161 an as alien convicted of prescription The Court observed that some violating “relating a law to a controlled drugs subject to proscriptions appealed substance.” Id. The alien but 331(f) 353(e) §§ FDCA in 21 U.S.C. and summarily the BIA affirmed and alien were also “controlled substances” as de- then for petition filed review with this including power- fined under the CSA granted Court. Id. 154. This Court some, opiate Oxycontin, ful but such as petition and vacated the order of re- Viagra, were not. The Court thus held moval, concluding provi- the FDCA possibility coincidental that a “[t]he “relating sions were not laws to a con- might controlled substance be involved trolled substance” defined U.S.C. with the violation of a regulation law or 1101(a)(43)(B), §§ 802 under 8 U.S.C. enough regulation make law or 1227(a)(2)(A)(iii) 1227(a)(2)(B)(i). ‘relating one to a controlled substance’ for Nevertheless, F.3d at 162-63. the Court deportability purposes noted that BIA and several other 1227(a)(2)(B)(i).” 687 F.3d at 161-62. appeals courts of “have held that a law In reaching its conclusion in Borrome prohibiting possession or use of respect CSA, with to the limits paraphernalia is a law ‘relating to a con- Court observed that the connection under ” substance,’ “[parapher- trolled because 331(f) §§ the FDCA between 21 U.S.C. nalia statutes relate to controlled sub- 353(e) and controlled substance of- stances, though they even prohibit attenuated, although fenses was and that possession of instruments rather than con- prescription there is a “nexus” between themselves, trolled substances because the substances, drugs and controlled see “[t]o possession an intentionally item used ...[,] rummage the connection we must manufacturing, for using, testing, or en- through 400-plus ‘Prescription page [a] hancing the effect of a controlled sub- Drug ... Product List’ and then hunt for a necessarily pertains stance to a controlled match in roughly pages of sched- (some Id. at 160 internal quo- substance.” ules of controlled substances in the Code omitted). tation marks Regulations.” of Federal Id. at 162. The comparison a strict one-to-one performing that those statutes recognized also Court and state lists. Con- between the federal of conduct swath substantial “criminalize moreover, slight varia- provided gress, substances as to controlled no nexus id., “any regulation law or 802,” by referencing tion utilizing and then the broad whether a of State” are blind to “statutes those concerning con- language ad- highly involves prosecution particular in federal trolled substances as defined or relative- painkillers, prescription dictive See, Mukasey, v. e.g., law. Desai shampoos, topical prescription ly benign (7th Cir.2008) (“If Thus, Congress want- 766 creams, Id. the eye drops.” between correspondence 21 ed a one-to-one classifying of the view was Court CSA, 331(t) 353(e) it the state laws and the as laws “‘re- §§ U.S.C. ‘involving’ have used a word like would would controlled substance’ lating to a ”). to,’.... ‘relating phrase instead far the bounds of too stretch ” ‘relating to.’ Id. event, though there were a even that at the number of substances Here, however, a close nexus minute there is Rojas’s paraphernalia conviction time of use/possession crime of the state between Pennsyl- substances under Rojas were controlled to which drug paraphernalia CSA, under the section 21 vania law but not the CSA under guilty and pleaded here. After applicable only an infinitesimal § U.S.C. 802 that, all, Rojas although, it is clear as controlled drugs listed as portion of contends, Pennsylvania definition Pennsylvania schedules in the substances beyond fed- goes substances schedules. controlled on the federal appear do not substances, the definition of controlled parties eral majority points out As the law as Pennsylvania drug paraphernalia Rojas’s conviction that at the time of agree in Pa.' 780- set forth 35 Stat. substances Pennsylvania controlled .Ann. 113(a)(32) convict- was only three narcotics contained schedules used in connec- applies paraphernalia controlled sub- ed on the federal not listed of controlled sub- to a vast number Majority typescript at tion stances schedules. 21 in Indeed, con- stances as defined Rojas does not even 205-06: Therefore, a viola- Rojas pleaded guilty to his tend that .many law that related fraction. tion of one of this minute state case related to 21 substances as defined vein, Department argues In this § 802. categorically falls U.S.C. Rojas’s state conviction 1227(a)(2)(B)(i) because within section section interpretation closely .-.. schedules “Pennsylvania’s drug (B)(i) 1227(a)(2) I is consistent advance ones,” and “the offense mirror the federal reading of that section with Court’s closely linked to paraphernalia is by the “rule of supported Borrome and Respon- drugs.” possessing the offense of rule, accept- That an last antecedent.” dent’s br. at 19-20. statutory interpretation, principle of ed phrase clause or limiting that “a teaches Department’s assertion Certainly modifying as ordinarily be read ... should overlap of controlled respect to the with that it immediate- Pennsyl- phrase the noun or though the is correct substances Thomas, 540 U.S. ly Barnhart sub- follows.” lists of controlled vania and federal 376, 380, 20, 26, L.Ed.2d 333 In con- S.Ct. precisely identical. stances are not (2003) (citation omitted); Disabled see also in the schedules the sidering this deviation SEPTA, 539 F.3d Pa. v. trees in in Action the forest for the majority misses Cir.2008). (3d State, States, Although the rule tion of a 210 n. 13 the United or a negated “by foreign country” and can be and not is not absolute “convicted of a all, meaning,” Supreme violation.” simply other indicia of After cannot be reasonably interpreting plain Court has said that statutes denied that the statute’s “ conformity ‘quite language phrase the rule is sensible makes clear that the “re- ” Barnhart, grammar.’ lating as a to a controlled matter of substance” does not (quoting at 380 Nobel- follow the words U.S. at S.Ct. “convicted of a violation.” Bank, 324, 330, Therefore, regardless underly- man v. Am: Sav. 508 U.S. of the facts 2106, 2111, conviction, ing 124 L.Ed.2d 228 if an alien is S.Ct. convicted of (1993)). Moreover, in violation of a relating Barnhart Su- state law to a con- substance, fail- preme surely Court reversed this Court for trolled case ing to this common of En- here given guilty plea adhere rule for use/pos- id., glish grammar. session of drug paraphernalia See S.Ct. 380- under 35 780-113(a)(32), Pa. Stat. Ann. he is re- Nothing movable. could be clearer. Though majority the believes that the In reaching majority rule the its result the supports last antecedent its is result, rejecting the majority making plain meaning in fact the is the of section 1227(a)(2)(B)® says for it grammatical same error that this Court that “the De- above, partment made in Barnhart. As must show that stated the the conviction 1227(a)(2)(B)® for statutory deport text in which it seeks to foreign section a national federally- issue reads: involved or related ato Majority substance.” typescript Any any alien who at time after admis- 1227(a)(2)(B)® at 205. But section says no sion has been convicted of a violation of such thing says for what it is that an alien (or violate) conspiracy or attempt to to deported be must be convicted of a any regulation State, law or of a the violation of a law to a controlled States, or a foreign country United re- (as substance defined in section 802 of (as lating to a controlled substance de- 21).” Title It is the law that the alien 21), fined in section 802 of Title other violated not the violation of which the alien single than a involving posses- offense was- convicted that must be related “to a sion for own grams one’s use of 30 or -(as controlled substance defined in section marijuana, less of is deportable. 21).” of Title It is obvious that re- majority seems to believe that gardless of the substance involved Ro- rule of the supports last antecedent its jas’s case he violating was convicted of result paren- because it indicates that the law relating to a controlled substance as thetical, “as defined in section 802 of Title defined in section 802 of Title 21 and 21,” “affects its immediate antecedent ” therefore deny the Court should peti- his term, ‘a controlled Majority substance.’ tion for review. typescript at 209. But problem majority’s analysis is that it is consid- I significant think that it is that in its ering the last antecedent to “as in opinion majority indicates that for an section 802 of Title 21.” But the fact is deported, individual to be that the rule of the last antecedent comes must establish “that the individual it seeks (1) (2) play into in this case when a court consid- to remove is an alien who at any- ers the last antecedent to phrase “re- entering country time after violated or substance,” lating to a controlled attempted and that relating violate law to a (3) certainly antecedent “any regula- is law or controlled substance and that the con- substance” to “law by that relates “controlled is defined as such trolled substance majority at 209. therefore the Majority typescript regulation” or law.” Depart- is clear mistake the immi- regard, making In this is the same Rojas an alien establish judge ment did made in Borrome. gration a controlled relating a law who violated point out that Finally, important it is by feder- as that term is defined not concerned with a in this case we are if involved particular law even al might in- state law the which violation not come within the defini- in his case did in an attenu- volve a controlled substance In effect of Title tion of section 802 n way.' Quite to the happenstance ated or rewriting section majority Pennsylvania law under contrary, adding emphasized convicted was aimed at as fol- that the section reads language so al- regulation of controlled substances lows: most all of which were controlled sub- any time after admis- An alien who at Pennsylvania and fed- stances under both of a violation of has been convicted sion Thus, Rojas’s law. state case did eral violate) (or attempt conspiracy State, of a regulation law or impacting a statute on con- not involve States, foreign country re- or a United as a matter of chance as trolled substances (as de- lating to a controlled substance be, general shoplift- example, would 21), Title other in section 802 of fined shoplifting ing precluded statute which involving posses- offense single than a specific and without any merchandise grams or for one’s own use sion controlled substances.3 reference included marijuana deportable, provided is less of had prosecution If an conviction was offense it such a. statute would be been under as a controlled substance that involved say that he had been con- unreasonable to § 802. in 21 U.S.C. relating to a controlled victed under law respect to what the My conclusion in 21 802. as defined substance doing surprise should majority actually Borrome, F.3d at 162.' See “relating to a explains, for Borrome no one I I have set forth dis- For the reasons ... modifies ‘law or ” majority opinion as it is sent from of the offense. regulation,’ not the facts deny Rojas’s clear that’ the Court should Though majority at 159. Borrome, stay and vacate the for review petition “embracing]” indicates that it is January fact, granted removal it is majority typescript at joins opinion. in this Judge 2012. Fisher critical statement that case’s repudiating Majority typescript at 208. Nev- theory there could be a schedules.” ertheless, recognize that in 3. I possibility there nonsensically the remote added problem if a state in a state con- an inclusion jelly to its could be such product such as beans harmless control schedule should not trolled substances schedules but I decline controlled substances certain case for we can be the result in this my that chance as reach result on attempts posses- to outlaw the product that if a state any contend that such does not industry tobacco of tobacco the sion or use I no reason to believe involved here and see action file a district court will not be slow to an irrational would act in such that a state under, regulation challenging the state law or way addition would survive if it did the alia, that, Supremacy and Commerce inter judicial I further realize review. event, out, long experience has might Clauses. points in what majority a state taught to decide cases to avoid me not regarded act could "in- as a nonsensical be parade of horribles. fictional substances] [controlled clude tobacco in its FUENTES, Judge, Circuit with whom

McKEE, SCIRICA, Judge, and Chief

RENDELL, AMBRO, SMITH, JORDAN,

CHAGARES, HARDIMAN,

GREENAWAY, Jr., VANASKIE, and

SHWARTZ, Judges join. Circuit

UNITED of America STATES ZIZIC,

ex rel. Thomas M.

M.D., Appellant

Q2ADMINISTRATORS, LLC and Solutions,

Rivertrust Inc.

No. 12-2215. Appeals,

United States Court of

Third Circuit.

Argued Jan.

Opinion Aug. Filed:

Case Details

Case Name: Ramiro Enrique Rojas v. Attorney General United States

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 23, 2013

Citation: 728 F.3d 203

Docket Number: 12-1227

Court Abbreviation: 3rd Cir.