Willy Rosa v. Attorney General United States

Citation: Not availableDocket: 18-1765

Court: Court of Appeals for the Third Circuit; January 28, 2020; Federal Appellate Court

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The case involves Willy de Jesus Rosa's petition for review of a Board of Immigration Appeals (BIA) decision regarding his prior New Jersey convictions for drug-related offenses. The key legal question is whether the categorical approach, used to compare elements of prior convictions with federal law, allows for comparison with any federal crime or only the most analogous one. Rosa, a legal permanent resident since 1992 from the Dominican Republic, was convicted in 2004 for possession and sale of cocaine within 1,000 feet of a school, classified under New Jersey's School Zone Statute. In 2015, the Department of Homeland Security charged him with removability based on this conviction as an aggravated felony due to "drug trafficking." Rosa conceded removability for the controlled substances offense but contested the aggravated felony classification, which would affect his eligibility for cancellation of removal. The court agreed that the BIA incorrectly concluded that Rosa's convictions could be compared to both specific and general federal drug distribution statutes. Consequently, the court granted Rosa's petition and remanded the case for further proceedings.

The Immigration Judge utilized the "categorical approach" as mandated by Supreme Court precedent to evaluate whether Rosa's New Jersey state convictions were classified as aggravated felonies. By comparing the New Jersey School Zone Statute with the Federal School Zone Statute, the Judge determined that the state statute encompassed broader conduct and definitions of "school property." Thus, Rosa's state conviction did not meet the criteria for an aggravated felony under federal law, rendering him eligible for cancellation of removal, which was granted.

The Department of Homeland Security appealed this decision to the Board of Immigration Appeals (BIA). The BIA held that Rosa's conviction could be assessed against the Federal Distribution Statute as a lesser included offense of the Federal School Zone Statute. They concluded that Rosa’s state conviction aligned with the Federal Distribution Statute, qualifying it as an aggravated felony. Consequently, the BIA ruled that Rosa was ineligible for cancellation of removal and ordered his deportation.

On appeal, Rosa argued that the BIA incorrectly compared his convictions to any federal analog rather than the "most similar" one. The Government countered that the Immigration and Nationality Act permitted the selection of any federal analog, including lesser included offenses. The Court sided with Rosa, asserting the BIA's conclusion violated established federal practice. However, it found the existing record inadequate for a proper comparison between the New Jersey and Federal School Zone Statutes and decided to remand the case for further record supplementation.

The BIA's ruling regarding Rosa's prior convictions as aggravated felonies was based on the categorical approach, which evaluates whether the elements of a federal statute can be satisfied by the state statute of conviction. A state crime does not qualify as an aggravated felony if its elements exceed those of a corresponding federal offense. The categorical approach, initially developed in the context of the Armed Career Criminal Act, has been adapted for evaluating aggravated felonies under the Immigration and Nationality Act.

The categorical approach is used to assess whether a drug offense qualifies as an "aggravated felony" under the Act through two potential routes: 1) for "illicit trafficking in a controlled substance," which requires unlawful trading or dealing, and 2) for "a drug trafficking crime," defined as any felony punishable under the Controlled Substances Act (CSA). Section 924(c)(4) integrates the CSA in defining drug trafficking crimes, including all state offenses that punish conduct as a felony under the CSA. 

To determine if a state offense aligns with the federal definition, a court first identifies the specific state offense for which the defendant was convicted. If the state statute is "indivisible," defining a single crime, the analysis is straightforward. Conversely, if the statute is "divisible," listing multiple crimes or elements, a more complex analysis is required. Courts can examine the statute, state court decisions, and the record of prior convictions, including documents like charging papers and plea agreements, to ascertain whether the statute is indivisible or divisible.

An indivisible statute is assessed under the formal categorical approach, while a divisible statute necessitates the use of the modified categorical approach to identify the specific crime and elements for which the defendant was convicted. Elements are defined as the necessary components for conviction. Under the modified categorical approach, courts may refer to a limited set of documents to determine the specifics of the conviction. The final comparison between the identified crime and the relevant federal analog must be made, following the law. 

The Board's decision to compare Rosa’s statute of conviction to multiple federal analogs was incorrect, as federal practice dictates that such comparisons should be limited to the most similar federal analog.

The Board's determination conflicts with established federal practice regarding the treatment of prior convictions, which has consistently recognized only one federal analog per conviction. This principle is supported by the Supreme Court's reasoning in *Taylor v. United States*, where the Court rejected a broad interpretation of "burglary" based on state definitions, asserting that Congress intended for the Armed Career Criminal Act to rely on a uniform definition independent of state law variances. The Court emphasized that various state statutes, such as those addressing "breaking and entering," must align with a single, generic definition of burglary. Subsequent rulings, including *Shepard v. United States*, *Mathis*, and *Descamps v. United States*, reinforced the categorical approach, which compares the statute of conviction to the most similar federal offense, presupposing a singular generic analog. The Court’s language consistently reflects that each conviction should correspond to one recognized federal analog. In *Gerbier v. Holmes*, it was determined that a Delaware cocaine possession conviction did not meet the criteria for an aggravated felony, as the cited section of the Controlled Substances Act was not deemed an appropriate federal analog. The Government's suggestion that multiple federal analogs could apply contradicts this long-standing judicial approach, as the Gerbier decision explicitly rejected such an interpretation. Overall, the established jurisprudence asserts that prior convictions must be matched with a single, uniform federal analog, a position the Government's argument seeks to overturn.

Congress's intent in enacting relevant statutes dictates the application of the categorical approach, which is based on the statutory language and aims to reflect legislative intent in imposing penalties for specific violations. Under the Immigration and Nationality Act (INA), an "aggravated felony" includes felonies punishable under the Controlled Substances Act (CSA), encompassing all substantive felony offenses without narrowing them to lesser included offenses like simple possession. The Supreme Court has asserted that the categorical approach must take into account the actual prior conviction. In *Carachuri-Rosendo v. Holder*, the Court established that only "recidivist simple possession" qualifies as a felony under the CSA, necessitating that a prior conviction be charged and proven. This principle also applies to Rosa, who was convicted of a greater offense—sale of a controlled substance within a school zone—thus the Government cannot overlook the implications of this conviction. 

The Government argues that the term "illicit trafficking in a controlled substance" in 1101(a)(43)(B) serves as the relevant generic analog, which could be satisfied by any felony under the CSA, supported by Supreme Court decisions like *Moncrieffe v. Holder*. However, neither case solely relied on this argument; both recognized that the appropriate federal analog was more specific, rooted in the underlying provisions of the CSA. The courts emphasized the necessity of comparing actual state convictions to their closest federal counterparts, indicating that Congress intended for the categorical approach to reflect the specifics of the conviction rather than a broader interpretation.

The Government argues that the term "any" in defining a "drug trafficking crime" is ambiguous and that the Board of Immigration Appeals (BIA) should receive deference in its interpretation under Chevron. Alternatively, the Government claims that it can select from federal analogs even without Chevron deference. However, the court rejects these arguments, stating that the BIA is not entitled to Chevron deference when interpreting criminal law, particularly under 924(c), as this falls outside its expertise. The court emphasizes that the term "any" does not imply that lesser included offenses serve as the sole federal analogs for felonies under the Controlled Substances Act. Instead, Congress intended for prior convictions to be compared to their most similar federal analogs.

The court outlines that identifying the appropriate federal analog for Rosa's conviction involves analyzing the elements of the relevant statutes. Rosa's conviction under the New Jersey School Zone Statute includes three elements: distribution of a controlled substance, the substance being a controlled dangerous substance, and the act occurring on school property. In contrast, the Federal Distribution Statute lacks the critical location element, making it an improper analog. The Federal School Zone Statute, which includes the necessary location context, is deemed the correct federal analog. Thus, the BIA erred by comparing Rosa's conviction to the Federal Distribution Statute instead of the Federal School Zone Statute.

Finally, the court notes that the record is insufficient to determine whether the New Jersey School Zone Statute is divisible, necessitating further analysis under the categorical approach when comparing it to the relevant generic offense.

The statute in question features disjunctive conduct and location elements, prompting an initial inquiry to establish whether the statute is divisible (defining separate crimes) or indivisible (listing alternative means to commit a single crime). This determination can be made quickly if the statute's language is clear or if prior state court decisions provide a definitive answer. Rosa argues that the conduct element—distributing, dispensing, or possessing with intent to distribute—exceeds what is covered under the Federal School Statute. The Government has not addressed Rosa's claims regarding this conduct element, likely due to a prior non-precedential ruling that a conviction under the New Jersey School Statute does not qualify as an aggravated felony under the categorical approach. Although the Chang-Cruz decision is non-precedential and not binding, it is noted for context.

When the statute and state law do not yield clear answers, courts may reference specific documents (such as indictments or plea agreements) to ascertain whether the statute is divisible. If these documents reiterate the statute’s terms or use a broad term, the statute is likely indivisible. If they reference one term exclusively, it suggests divisibility. The inquiry allows the court to determine which elements were involved in a prior conviction only if the statute is found to list different elements. If deemed indivisible, the court directly compares the elements of the statutes under the categorical approach. However, if the referenced documents do not clearly indicate the nature of the elements, the certainty required to ascertain a defendant’s conviction for a generic offense is lacking.

In this instance, the New Jersey School Zone Statute and relevant case law do not provide a definitive answer regarding the divisibility of its elements, necessitating reliance on limited underlying documents. The existing record, however, lacks clarity and is insufficient to determine whether the conduct elements are means or elements, or which elements influenced Rosa's conviction, as key documents like the plea agreement or charging document are absent. Although some case law indicates that New Jersey treats the conduct element as alternate means of a single element, no decisive ruling exists to confirm this interpretation.

To establish the defendant's guilt, the State must demonstrate that he was aware the substance was cocaine and intended to distribute it. In State v. Wilkinson, the court found sufficient evidence for a guilty verdict concerning possession of marijuana with intent to distribute. There is ambiguity in the jury instructions regarding the New Jersey School Zone Statute, particularly whether distributing and dispensing are treated as interchangeable means or distinct elements that require separate findings by the jury. The existing instructions do not provide clarity, and without additional records from Rosa's criminal case, it remains uncertain whether the statute pertains to means or elements. As a result, the case is remanded for further proceedings to clarify this issue; if the record cannot be substantiated to meet the required standard, Rosa cannot be deemed to have committed an aggravated felony. The petition for review will be granted, and the order of removal will be vacated and remanded for further consideration.