BIA Holds That Any Fact That Establishes Or Increases The Permissible Range Of Punishment For A Criminal Offense Is An “Element” For Purposes Of The Categorical Approach, Even If The Term “Element” Is Defined Differently Under State Law. Matter of Laguerre, 28 I&N Dec. 437 (BIA 2022) Followed. Pennsylvania Consolidated Statutes, Title 35, §780-113(a)(30), Which Punishes Possession With Intent To Deliver A Controlled Substance, Is Divisible With Respect To The Identity Of The Controlled Substance Possessed, And The Respondent’s Conviction Under This Statute Is One For A Controlled Substance Violation Under INA §237(a)(2)(B)(i) Under The Modified Categorical Approach.
On May 5, 2022, The Board of Immigration Appeals (BIA or Board) affirmed an order by the Immigration Judge (IJ) denying Respondent’s application for cancellation of removal, finding him removable under §237(a)(2)(B)(i), and dismissed his appeal. Respondent had been convicted in Pennsylvania of possession with intent to deliver a controlled substance per Pennsylvania Consolidated Statutes, Title 35, §780-113(a)(30), after a traffic accident in which his car hit a pedestrian; he was also convicted of 2 counts of driving under the influence of a controlled substance. The IJ denied cancellation as a matter of discretion, finding Respondent did not testify credibly or accept responsibility.
On appeal, Respondent claimed the statute of conviction was overbroad and indivisible and therefore did not categorically define an offense relating to a controlled substance; he relied on a Pennsylvania Superior Court case, Commonwealth v. Beatty, 227 A.3d 1277 (Pa. Super. Ct. 2020), which he claimed superceded precedential decisions of the 3rd Circuit Court of Appeals concluding that “the identity of the controlled substance is an element of the offense such that the statute is divisible by substance”. Respondent contended that under state law, the identity of a controlled substance is merely a “grading factor” in sentencing, not an element of the offense. He also challenged the IJ’s discretionary cancellation denial. The BIA concluded that, regardless of Pennsylvania’s classification, any fact that establishes or increases the permissible range of punishment is an element of the offense for Federal purposes. Here, the identity of the controlled substance established the range of punishment and was therefore an element of the offense; the statute was thus divisible and the IJ’s ruling was affirmed.
Initially, in discussing removability, the Board stated that it first had to determine whether Respondent had been convicted of a controlled substance offense under §237(a)(2)(B)(i), a question of law reviewed de novo. The decision stated that Matter of Laguerre, 28 I&N Dec. 437 (BIA 2022) had recently explained that whether a state statute categorically defines a controlled substance offense under §237(a)(2)(B)(i) is determined by whether the elements of the state law match those of the generic definition of an offense relating to a controlled substance. For a categorical match, “the Pennsylvania statute must include, as an element of the offense, a substance controlled under the [Federal] Controlled Substances Act.” “Elements” must necessarily be found by a jury or necessarily admitted by a defendant, whereas “means” or non-elemental facts are not necessary to support a conviction.
The BIA further found that the state schedules clearly include controlled substances not listed in the federal schedules. Respondent’s removability was therefore dependent “on whether the identity of the controlled substance is an ‘element’ of the offense that must be proven, rendering the statute divisible and susceptible to a modified categorical inquiry, or whether the identity of the substance merely identifies a ‘means’ of violating the statute, in which case the overbroad statute would be indivisible and could not support the charges of removability.” Resultingly, per Laguerre, where the identity of the substance is an element, and the conviction record reflects that substance is Federally controlled via the modified categorical approach, the offense is categorically a controlled substance offense under the INA.
Next, to determine whether a term listed in an alternatively-phrased statute is an element of the offense, the BIA noted that if begins by looking to authoritative sources of the state law. Respondent directed the Board to Beatty, which he claimed had recently clarified that, under state law, the identity of a controlled substance is not an element of his statute of conviction and that “this controlling interpretation” of Pennsylvania law supersedes existing 3rd Circuit precedent to the contrary. Beatty observed that the identity of a controlled substance is not listed at §780-113(a)(30), explaining that the substance’s specific identity is not an element of the offense-that the drug’s identity “is only relevant for gradation and penalties based on the relevant schedule.” And, noted the opinion, the schedules provide for different penalties depending upon the identity of the controlled substance.
The decision explained that Beatty “neither alters existing [Pennsylvania] law nor supercedes the Third Circuit’s construction” of §780-113(a)(30); the question thus boiled down to whether or not the statutory alternatives in Respondent’s statute of conviction are “elements” under Federal law. Additionally, Laguarre noted that state court decisions that do not give the term “element” the meaning and significance the U.S. Supreme Court did “do not control the determination of whether a statutory alternative is an “element” for purpose of the categorical approach.
Accordingly, concluded the BIA, under Pennsylvania law, the imposition of any penalty for a §780-113(a)(30) conviction requires the identification of the controlled substance at issue with sufficient specificity to determine which paragraph of that section applies. Further, because the identity of the substance must be submitted to the jury and proven beyond a reasonable doubt, it is an “element” of the statute under Federal law, regardless of Pennsylvania’s decision to label it a “grading factor,” rendering the statute “divisible by substance under the categorical approach.”
As Respondent’s statute of conviction is divisible with respect to the identity of the controlled substance, the Board applied the modified categorical approach to identify the substance underlying his conviction. It was undisputed that the substance in this case was marijuana, which is Federally controlled under Schedule I. As a result, Respondent committed an offense categorically related to a controlled substance violation; he was therefore removable as charged per §237(a)(2)(B)(i).
Regarding the denial of Respondent’s cancellation application, the BIA discerned no clear error in the IJ’s adverse credibility finding. Respondent did not dispute that his car hit a pedestrian who was transported to a hospital with internal bleeding. The IJ found that Respondent drove through a red light while intoxicated; those findings were not clearly erroneous. The IJ was not required to accept the claim that the victim walked into Respondent’s car while it was stopped in a line of traffic at a red light. The IJ also reasonably determined that the nature, recency and seriousness of Respondent’s criminal conduct, viewed in light of his incredible testimony and failure to accept responsibility, outweighed the favorable factors and considerations presented on his behalf and militated against a favorable exercise of discretion. The cancellation denial was affirmed and the appeal dismissed. Matter of German Santos, 28 I&N Dec.552 (BIA 2022).
