Ramiro Enrique Rojas v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-1227

_____________

RAMIRO ENRIQUE ROJAS,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

_____________

On Petition for Review of a Decision

and Order of the Board of Immigration Appeals

BIA No. A056 123 018

Immigration Judge: Hon. Walter Durling

_____________

Argued before Merits Panel on October 1, 2012

Reargued En Banc May 29, 3013

Before: McKEE, Chief Judge, SCIRICA, RENDELL,

AMBRO, FUENTES, SMITH, FISHER, CHAGARES,

JORDAN, HARDIMAN, GREENAWAY, Jr., VANASKIE,

SHWARTZ and GREENBERG, Circuit Judges.

1

(Opinion Filed: August 23, 2013)

Craig R. Shagin [ARGUED]

The Shagin Law Group

The Inns of St. Jude

120 South Street

Harrisburg, PA 17701

Tracey M. Hubbard

TMG Law Offices

321 Spruce Street, Suite 509

Bank Towers Building

Scranton, PA 18503

Attorneys for Petitioner

Eric H. Holder, Jr., Attorney General

Stuart F. Delery, Acting Assistant Attorney General, Civil

Division

Cindy S. Ferrier, Assistant Director

Thomas W. Hussey

Andrew J. Oliveira

Carol Federighi [ARGUED]

Timothy G. Hayes

Office of Immigration Litigation, Civil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

2

_____________

OPINION OF THE COURT

_____________

FUENTES, Circuit Judge, with whom McKEE, Chief Judge,

and SCIRICA, RENDELL, AMBRO, SMITH, CHAGARES,

JORDAN, HARDIMAN, GREENAWAY, Jr., VANASKIE,

and SHWARTZ, Circuit Judges join:

Petitioner Ramiro Rojas entered the United States as a

lawful permanent resident in 2003 when he was 12 years old.

Six years later, Rojas pled guilty to possessing drug

paraphernalia in violation of Pennsylvania law and was

ordered to pay a fine and court costs. The Department of

Homeland Security (the “Department”) then initiated removal

proceedings against Rojas, contending that he was removable

for having violated a law “relating to a controlled substance

(as defined in section 802 of Title 21).” 8 U.S.C.

§ 1227(a)(2)(B)(i). Rojas sought to terminate the proceedings

on the theory that the offense that constitutes the basis of

removal must involve a substance defined in section 802 of

Title 21, i.e., a federally controlled substance, but that the

Department had failed to meet such a burden in this particular

case. The immigration agencies disagreed that

§ 1227(a)(2)(B)(i) imposes that requirement and ordered

Rojas removed.

After consideration of Rojas‟s petition for review by a

three-judge panel of our Court, we sua sponte ordered that the

case be heard en banc. See Third Cir. I.O.P. 9.4 (2010). We

now grant Rojas‟s petition for review and conclude that, in a

removal proceeding under § 1227(a)(2)(B)(i), the Department

3

must show that the conviction for which it seeks to remove a

foreign national involved or was related to a federally

controlled substance. The record here was silent as to the

drug involved. Accordingly, we conclude that the

Department failed to meet its burden and remand the case for

the agency to determine whether the Department may have

another opportunity to demonstrate that Rojas‟s conviction

involved a federally controlled substance.

I. FACTUAL AND PROCEDURAL BACKGROUND

A.

Rojas is a 22-year old citizen of the Dominican

Republic who entered the United States in 2003 as a lawful

permanent resident and has resided in the country ever since.

In December 2009, Rojas pled guilty to possessing drug

paraphernalia and was assessed a fine and court costs by the

Court of Common Pleas of Lackawanna County,

Pennsylvania.1

Contending that this conviction rendered Rojas

removable under Section 237 of the Immigration and

Naturalization Act (“INA”), the Department instituted

removal proceedings against him in York, Pennsylvania.

This statute provides:

Any alien who at any time after admission has

been convicted of a violation of (or a conspiracy

or attempt to violate) any law or regulation of a

1

The charges were brought pursuant to 35 Pa. Stat.

Ann. § 780-113(a)(32).

4

State, the United States, or a foreign country

relating to a controlled substance (as defined in

section 802 of Title 21), other than a single

offense involving possession for one‟s own use

of 30 grams or less of marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).2

B.

In the proceeding before the Immigration Judge (“IJ”),

the Department submitted Rojas‟s guilty plea and colloquy

and a police criminal complaint pertaining to the drug

paraphernalia case. The guilty plea and colloquy state only

that Rojas pled to “Drug Para [sic] 1 yr, 2,500 fine,” App.

185a (guilty plea); 186a (plea colloquy), but do not indicate

what paraphernalia or what substance was involved in the

crime of conviction. The police criminal complaint, on the

other hand, states that the paraphernalia consisted of “loose

cigar paper and [a] plastic baggie” with marijuana. App.

190a. However, due to serious issues regarding the reliability

of this document, see infra Part IV.C, and because the

Department argued that the fact of conviction alone rendered

Rojas removable, neither the immigration agencies nor the

2

Initially, the Department also charged Rojas as

removable on the basis of a March 31, 2009 guilty plea to one

count of possession of a small amount of marijuana (less than

30 grams) in violation of 35 Pa. Stat. Ann. § 780-113(a)(31).

Subsequently, however, the Department conceded that this

conviction did not render Rojas removable because it fell

within the less-than-30-grams escape clause of

§ 1227(a)(2)(B)(i). Accordingly, only the drug-paraphernalia

conviction is at issue.

5

parties ultimately relied on the police criminal complaint.

The record of uncontested materials before the agencies was

thus silent as to the substance involved in Rojas‟s

paraphernalia conviction.

Rojas moved to terminate the proceedings, arguing

that “[t]he plain language of [§ 1227(a)(2)(B)(i)(a)] requires

[the Department] to prove that the substance underlying an

alien‟s state-law conviction for a possessory offense is one

that is defined in Section 102 of the Controlled Substance[s]

Act [(“CSA”)].” App. 129a-30a. In this regard, Rojas noted

that Pennsylvania‟s controlled-substances schedules list drugs

that are not in the federal schedules and contended that the

official record of his conviction is silent with respect to the

substance involved.3 The parties agree that, at the time of

3

The Commonwealth includes many objects in its

definition of drug paraphernalia, including typically

innocuous items such as blenders, bowls, and balloons, see 35

Pa. Stat. Ann. § 780-102(b), but a defendant cannot be found

guilty of violating the paraphernalia law unless he used or

intended to use an object in connection with a substance

criminalized by Pennsylvania law, id. § 780-113(a)(32); see

also Commonwealth v. Torres, 617 A.2d 812, 815 (Pa. Super.

Ct. 1992) (explaining that to obtain a conviction for

possession of drug paraphernalia “the Commonwealth must

establish that the items possessed[] were used or intended to

be used with a controlled substance”). Pennsylvania law

further defines a “controlled substance” as “a drug, substance,

or immediate precursor included in Schedules I through V of

[the Pennsylvania Controlled Substance, Drug, Device, and

Cosmetic Act].” 35 Pa. Stat. Ann. § 780-102(b). Federal

law, by contrast, defines “controlled substance” in the CSA as

6

Rojas‟s conviction, Pennsylvania‟s controlled-substances

schedules contained three narcotics that were not then in the

federal schedules—“dextrorphan,” “1-(3-

trifluoromethylphenyl)piperazine,” and “propylhexedrine.”

See Resp‟t‟s Resp. to Letter Br. at 1-3, Oct. 12, 2012.

C.

The IJ denied Rojas‟s motion to terminate the

proceedings and ordered him removed to the Dominican

Republic, concluding that “a state‟s drug statute need not

align perfectly with the CSA” in order for a drug-

paraphernalia conviction to serve as the basis for removal.

App. 53a. Although the IJ reasoned that “[t]his only makes

sense” because “[i]t‟s highly doubtful Congress would intend

for an alien to escape the immigration consequences for being

convicted under a State or foreign controlled substance law

simply because the drug was not listed in the CSA,” id., he

did not address the import of his ruling on the words “as

defined in section 802 of Title 21.”

On appeal to the Board of Immigration Appeals

(“BIA”), Rojas reiterated the argument that “[t]he plain

language of Section 237(a)(2)(B)(i) of the INA requires that

in order for a conviction to make an alien removable on the

basis of a controlled substance offense, [the Department]

must prove by clear and convincing evidence that the

substance underlying an alien‟s state law conviction is one

a “drug or other substance, or immediate precursor, included

in schedule I, II, III, IV, or V of part B of this subchapter,”

but “does not include distilled spirits, wine, malt beverages,

or tobacco.” 21 U.S.C. § 802(6).

7

covered by” the CSA. App. 7a. The BIA, however, also

disagreed. The BIA did not squarely confront the issue of

whether a noncitizen could be removed for a conviction

involving a substance that is not federally controlled. Instead,

it focused on the statute‟s use of the words “relating to” and

concluded that drug-paraphernalia statutes “relate to”

controlled substances despite the lack of equivalence between

the drug schedules of a particular State and the federal

schedules. Accordingly, the BIA affirmed the order of

removal.

Rojas then filed a motion for stay of removal in this

Court, which we granted, and this petition for review of the

BIA‟s decision.

II. JURISDICTION AND STANDARD OF REVIEW

The IJ had jurisdiction over Rojas‟s removal

proceedings under 8 U.S.C. § 1229a. The BIA had

jurisdiction to review the IJ‟s order of removal and its

underlying denial of Rojas‟s motion to terminate under 8

C.F.R. §§ 1003.1(b)(3) and 1240.15.

We generally have jurisdiction under 8 U.S.C. § 1252

to review final orders of removal. However, 8 U.S.C.

§ 1252(a)(2)(C) provides that “no court shall have jurisdiction

to review any final order of removal against an alien who is

removable” for having been convicted of violating a law

“relating to a controlled substance” under 8 U.S.C.

§ 1227(a)(2)(B)(i). Although the BIA‟s order falls within this

jurisdiction-stripping provision, we retain jurisdiction to

ascertain our jurisdiction, i.e., to determine “(1) whether the

petitioner is an alien and (2) whether he has been convicted of

8

one of the enumerated offenses.” Borrome v. Att’y Gen., 687

F.3d 150, 154 (3d Cir. 2012); see also 8 U.S.C.

§ 1252(a)(2)(D) (“Nothing in subparagraph (B) or (C), or in

any other provision of this chapter . . . which limits or

eliminates judicial review, shall be construed as precluding

review of . . . questions of law raised upon a petition for

review filed with an appropriate court of appeals in accordance

with this section.”).

We need not decide the standard of review applicable

to the BIA‟s unpublished decision in this case. See De Leon-

Ochoa v. Att’y Gen., 622 F.3d 341, 348-51 & n.5 (3d Cir.

2010). We reach the same conclusion regardless of whether

we review the BIA‟s decision de novo, see, e.g., Denis v.

Att’y Gen., 633 F.3d 201, 208-09 (3d Cir. 2011) (suggesting

de novo review is proper in a case, such as this, involving a

pure legal issue as to removability), or whether we review it

under the deferential Chevron standard, see id. (recognizing

that deference to an agency‟s reasonable interpretation of

ambiguous statutory language would be appropriate).

III. THE PARTIES’ ARGUMENTS

A. Rojas’s Contentions

In his petition for review, Rojas reiterates the simple

argument he has advanced throughout these proceedings: that

the INA “quite unambiguously requires” that, “in order to

prove deportability under [section 1227(a)(2)(B)(i), the

Department] must show that Mr. Rojas‟s criminal conviction

was for possession of a substance that is . . . contained in the

federal schedules of the [CSA].” Pet‟r‟s Br. at 12, 14. He

further argues that his particular conviction does not meet this

9

requirement given that Pennsylvania criminalizes substances

that are not illegal under federal law and that the Department

did not identify the substance underlying his state-law

conviction as a federally controlled substance.

B. The Department’s View

The Department instead frames the question as

“whether a (generic) conviction under [Pennsylvania‟s

paraphernalia law] . . . constitutes „a violation of . . . any law

. . . of a State . . . relating to a controlled substance (as defined

in section 802 of Title 21).‟” Resp‟t‟s Br. at 13. The

Department contends that the answer to this question lies in

the application of the “formal categorical approach,” under

which the issue “becomes whether a generic conviction for

drug paraphernalia . . . is a close enough „fit‟ to federal

controlled substances.” Id. at 17-18. The Department further

posits that generic paraphernalia offenses do “fit,” regardless

of the controlled substance involved.

But, even if we assume that the Department is correct

that drug-paraphernalia statutes “relate to” controlled

substances, a point which Rojas concedes, see, e.g., Oral Arg.

at 9:30-9:35 (May 29, 2013), that does not address the

straightforward question of statutory interpretation we must

tackle on the effect of the parenthetical “(as defined in section

802 of Title 21)” on the Department‟s burden of proof. Does

it require the Department to show that the noncitizen‟s

conviction involved a substance that is “defined in section

802 of Title 21”?4 The Department argues that there is no

need to show what substance was involved or whether it was

4

We refer to this language as the “„as defined‟

parenthetical,” or sometimes simply as “the parenthetical.”

10

listed in the federal schedules so long as there is a “close” fit

between those schedules and Pennsylvania‟s. Resp‟t‟s Br. at

19. In other words, the Department contends that a

noncitizen may be removed for a drug offense involving a

substance that only a state criminalizes, so long as that state‟s

schedules approximate the CSA schedules.

IV. ANALYSIS

A. The Language of § 1227(a)(2)(B)(i)

1. Textual Canons of Statutory Interpretation

In cases of statutory interpretation, “we begin by

looking at the terms of the provisions [at issue] and the

„commonsense conception‟ of those terms.” Carachuri-

Rosendo v. Holder, 130 S. Ct. 2577, 2585 (2010) (citing

Lopez v. Gonzales, 549 U.S. 47, 53 (2006)). As the Supreme

Court has repeatedly emphasized, in “all” cases “[t]he inquiry

ceases if the statutory language is unambiguous.” Barnhart v.

Sigmon Coal Co., 534 U.S. 438, 450 (2002) (internal

quotation mark omitted). Thus, to determine whether

§ 237(a)(2)(B)(i) of the INA requires that a federally

controlled substance underlie a state-law drug conviction, we

turn first to the text of the law itself, which, as noted earlier,

provides that:

Any alien who at any time after admission has

been convicted of a violation of (or a conspiracy

or attempt to violate) any law or regulation of a

State, the United States, or a foreign country

relating to a controlled substance (as defined in

section 802 of Title 21), other than a single

11

offense involving possession for one‟s own use

of 30 grams or less of marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).

Reading the statute as written, it is clear that the

parenthetical “(as defined in section 802 of Title 21)” is a

restrictive modifier that affects only its immediate antecedent

term, “a controlled substance.” As the Seventh Circuit has

explained, the parenthetical “can only be read to modify

„controlled substance,‟ its immediate antecedent,” and thus

“bridges the state law crimes with federal definitions of what

counts as a controlled substance.” Desai v. Mukasey, 520

F.3d 762, 766 (7th Cir. 2008); see also Disabled in Action v.

SEPTA, 539 F.3d 199, 201 n.13 (3d Cir. 2008) (explaining

that under the “„rule of the last antecedent‟ . . . [,] „a limiting

clause or phrase . . . should ordinarily be read as modifying

only the noun or phrase that it immediately follows‟” (quoting

Barnhart v. Thomas, 540 U.S. 20, 26 (2003))).5

Thus, the most straightforward reading of

§ 1227(a)(2)(B)(i) is that to establish removability the

Department must show that “a controlled substance” included

in the definition of substances in section 802 of Title 21 was

involved in the crime of conviction at issue. Parsing the

different clauses with the aid of the “last antecedent” canon

reveals that, as a whole, § 1227(a)(2)(B)(i) requires the

5

Desai interpreted 8 U.S.C. § 1182(a)(2)(A)(i)(II),

whose language is identical to § 1227(a)(2)(B)(i) in all

material respects. We analyze interchangeably provisions of

the INA containing identical language. See IBP, Inc. v.

Alvarez, 546 U.S. 21, 34 (2005).

12

Department to establish that the individual it seeks to remove

(1) is an alien (2) who at any time after entering the country

violated or attempted to violate a law relating to a controlled

substance and (3) that the controlled substance is defined as

such by federal law. Points (1) and (2) are not at issue in this

case.

A simple example further illustrates why this reading

of the statute is correct. Section 802(6) of Title 21 states that

“[t]he term „controlled substance‟ means a drug or other

substance, or immediate precursor, included in schedule I, II,

III, IV, or V of part B of this subchapter. The term does not

include distilled spirits, wine, malt beverages, or tobacco . . .

.” Putting the two provisions together, the INA effectively

renders removable noncitizens convicted under laws “relating

to a controlled substance („a drug or other substance . . .

included in schedule I, II, III, IV, or V . . . [,] not includ[ing]

spirits, wine, malt beverages, or tobacco‟).” Suppose, then,

that Pennsylvania—which has its own controlled-substances

schedules to which it is free to add substances not in the

federal lists—chose to include tobacco in its schedules, and

that Rojas was convicted of possessing tobacco paraphernalia.

Given the express exclusion of tobacco from the federal list

of controlled substances, it would be a complete anomaly to

then place Rojas in removal proceedings for possessing

tobacco paraphernalia. Indeed, such a result would violate

the cardinal principle that we do not cripple statutes by

rendering words therein superfluous, as the Department‟s

reading would have us do to the “as defined” parenthetical.

See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001) (“It is

our duty to give effect, if possible, to every clause and word

of a statute.” (quoting United States v. Menasche, 348 U.S.

528, 538-39 (1955) (internal quotation marks omitted));

13

Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir.

1997) (“We strive to avoid a result that would render

statutory language superfluous, meaningless, or irrelevant.”).

2. Relevant Case Law

We find further support for this construction in the

decision of the Ninth Circuit—the first Court of Appeals to

have squarely addressed the meaning of the “as defined”

parenthetical—which concluded as we do that the language

means that the Department must establish that a state-law

drug conviction involved a federally controlled substance.

Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007)

abrogation on other grounds recognized by Cardozo-Arias v.

Holder, 495 F. App‟x 790, 792 n.1 (9th Cir. 2012). In that

case, the Ninth Circuit reasoned that to hold otherwise would

“read out of the statute the explicit reference to Section [8]02

of [Title 21].” Id. at 1077 n.5. It therefore reversed the BIA‟s

order of removability because the Department had not

introduced evidence to show what substance Ruiz-Vidal had

been convicted of possessing. Id. at 1080; see also Cheuk

Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010)

(applying Ruiz-Vidal to a conviction under a California

statute criminalizing transportation of controlled substances,

where the Department failed to establish whether a federally

controlled substance was involved). The Seventh Circuit

agreed, noting that the “as defined” parenthetical means that

if “a state decides to outlaw the distribution of jelly beans,

then it would have no effect on one‟s immigration status to

deal jelly beans, because it is not related to a controlled

substance listed in the federal CSA.” Desai, 520 F.3d at 766.

This case follows from the holdings in Ruiz-Vidal and S-Yong

and from the reasoning in Desai.

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3. The Views of the Department and the BIA in

Other Contexts

In addition to being supported by the statute‟s plain

text and persuasive case law, our proposed reading of the

statute has been accepted by the BIA. Almost fifty years ago,

the BIA terminated removal proceedings against an alien

convicted under California law of selling a “narcotic” because

although the “California law relate[d] to a narcotic or

marihuana violation[,] . . . the record being silent as to the

narcotic involved . . . [,] it [was] possible that the conviction

involved a substance (such as peyote) which is a narcotic

under California law but [wa]s not defined as a narcotic drug

under federal law.” Matter of Paulus, 11 I. & N. Dec. 274,

275 (BIA 1965). Analyzing a predecessor to

§ 1227(a)(2)(B)(i), the BIA held that “only a conviction for

illicit possession of . . . a substance which is defined as a

narcotic drug under federal laws can be the basis for

deportation proceedings.” Id. at 276. The BIA here

completely ignored Paulus.

This reading has also been advocated by the

Department itself. In Ruiz-Vidal, the Department conceded

that it was required to show that the conviction at issue was

for possession of a substance “not only listed in the California

statute . . . but also contained in . . . the Controlled Substances

Act.” Ruiz-Vidal, 473 F.3d at 1077 n.3. Similarly, the

Department has argued to this Court that the parenthetical

means that the controlled substance “must be one defined

under [the CSA]” in order for the state conviction to satisfy

the INA‟s provisions. Br. for Resp‟t at 19, Gul v. Att’y Gen.,

385 F. App‟x 241 (3d Cir. 2009) (No. 09-2675), 2009 WL

8584678, at *19. And, in this very case, while focused on

15

whether paraphernalia statutes “relate to” controlled

substances, the Department perhaps unwittingly conceded

that Rojas‟s reading of § 1227(a)(2)(B)(i) is correct, noting,

for example, that the parenthetical “is restrictive, [and]

modifies the immediate antecedent—the term „controlled

substance,‟” Resp‟t‟s Br. at 16, and that the law requires that

the “statute of conviction „relate to‟ federal controlled

substances,” id. at 21 (emphasis added). Thus, the

Department‟s resistance to the notion that a federally

controlled substance must be involved is, to say the least,

perplexing.

Unfazed, the Department urges us not to follow Ruiz-

Vidal or Paulus, relying primarily on Matter of Espinoza, 25

I. & N. Dec. 118 (BIA 2009), for the proposition that the

holding of those cases should be limited to convictions that

involve actual possession of controlled substances. We are

not persuaded.

Espinoza involved an individual who was subject to,

but sought cancellation of, removal, which could be granted

upon a showing that the individual had not been convicted of

any law “relating to a controlled substance (as defined in

section 802 of Title 21).” 8 U.S.C. § 1182(a)(2)(A)(i)(II).

Despite his conviction for possessing a marijuana pipe,

Espinoza argued that the Department could not “support a

finding of inadmissibility unless the paraphernalia was tied to

a specific, federally controlled substance.” Espinoza, 25 I. &

N. Dec. at 121. The BIA disagreed, noting both that the

conviction was for “possessing a marijuana pipe, [so] th[e]

argument ha[d] little relevance,” and that because it was

Espinoza‟s burden to prove eligibility for adjustment of

status, he had the “burden to resolve any issue that might

16

arise in his case by virtue of an asymmetry between the

Federal and State . . . schedules.” Id. These two grounds

alone factually and legally distinguish Espinoza.

But, to the extent that Espinoza intended to limit the

Department‟s obligation to establish a federally controlled

substance only to those proceedings based on drug

“possessory” offenses (or to the extent that the Department

reads Espinoza in that way), we disagree with the illogical

and atextual interpretation of § 1227(a)(2)(B)(i) that this view

compels. We cannot surmise from the text any support for

the proposition that the Department‟s burden of proof

changes depending on the type of drug offense involved in

the removal proceeding, and, indeed, the statute speaks of

“any” law. Moreover, common sense indicates that there

should be no difference—we cannot square the text of the law

with a world in which a noncitizen may be deported for using

“1-(3-trifluoromethylpheny)piperazine” paraphernalia, but

not for “possessing” the drug itself. And there is nothing in

Espinoza, let alone in § 1227(a)(2)(B)(i), to help us logically

determine which offenses are “possessory” and which are not.

Espinoza‟s purported limitation of Ruiz-Vidal to “possessory”

offenses has been undermined by subsequent decisions

applying that case to crimes that may or may not require

actual possession of drugs. See, e.g., Mielewczyk v. Holder,

575 F.3d 992, 995-96 (9th Cir. 2009) (involving the crime of

offering to transport drugs); S-Yong, 600 F.3d at 1031, 1034

(addressing conviction for transporting and attempting to

transport controlled substances). The better view is that the

parenthetical captures all controlled-substances offenses—

any offense involving a particular drug (possessing it,

17

transporting it, using paraphernalia in connection with it, etc.)

is removable if the drug is on the federal list.6

4. The Department’s Alternative Reading of the

Parenthetical

The Department offers one last alternative, urging that

because the statute speaks of a conviction “relating to a

controlled substance (as defined in section 802 of Title 21),”

8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added), all that is

6

In Espinoza, the BIA also rejected the notion that a

paraphernalia conviction cannot lead to removal because

there is no federal drug-paraphernalia statute. The BIA

reasoned that the “as defined” parenthetical “modifies only its

immediate antecedent (i.e., „controlled substance‟), not the

whole text of the section” and therefore does not impose a

requirement that the crime of conviction “relate to” a

federally defined crime. Espinoza, 25 I. & N. Dec. at 122

(citing Escobar Barraza v. Mukasey, 519 F.3d 388, 390 (7th

Cir. 2008)). We agree, but are at a loss as to why, given its

view that the parenthetical modifies the immediate antecedent

term, the BIA does not agree that the controlled substance at

issue must be included in the federal schedules. These

contradictory lines of reasoning stand in stark contrast to the

Ninth and Seventh Circuits‟ more internally consistent views.

Both Circuits recognize, as per Luu-Le v. INS, 224 F.3d 911

(9th Cir. 2000), and Escobar Barraza, respectively, that

paraphernalia statutes “relate to” controlled substances

despite the existence of the “as defined” parenthetical. At the

same time, both recognize, as per Ruiz-Vidal and Desai, that a

conviction must involve a federally controlled drug because

of the parenthetical.

18

required is that the substance of conviction “relate to” a

federally controlled substance, or that a particular State‟s

schedules as a whole “relate to” the CSA. Stated differently,

under this view the statute requires establishing only that the

State schedules and/or the particular substance involved are

sufficiently “close” to the federal substances if the match is

not “exact.” Resp‟t‟s Br. at 20; see also Oral Arg. 18:00-

18:15 (Oct. 5, 2012) (arguing that the parenthetical only

requires that the substances in the State schedules are related

“in kind” to those in the federal schedules). This theory

presumably disposes of any requirement that the substance of

conviction be established when the offense of removal is a

drug crime of any state or territory in our Circuit, to the extent

we believe that all of a particular jurisdiction‟s controlled

substances, or its schedules as a whole, are “close to” or

“relate to” the federal lists. But this reading of

§ 1227(a)(2)(B)(i) does not comport with plain grammar and

leads to results Congress could not have intended.

In essence, the Department‟s proposal is to re-read the

statute to say that removable convictions are those “relating to

a controlled substance (relating closely (or in kind) to a

substance defined in section 802 of Title 21).” We reject this

artificial redraft—we will not construe “relating to” to modify

more than one clause and we will not arbitrarily insert into the

text the words “close to” or “in kind.” Cf. Lopez, 549 U.S. at

56 (rejecting a convoluted rewriting of a statute from “a

felony punishable under the CSA” to “a felony punishable

under the CSA whether or not as a felony”).

Moreover, the “close to” test would require

immigration agencies and federal courts to become lab

experts capable of determining whether any substance

19

criminalized by any given State, such as 1-(3-

trifluoromethylphenyl)piperazine, is “close to” or “relates to”

any of the hundreds of substances listed in the CSA

schedules. Yet we are left to our own devices to ascertain

the precise contours of this new “close to” test and whether it

turns on chemical, medicinal, physical, or other as-of-yet-

unknown properties of drugs.7

And the “close to” test would fare no better if applied

to the totality of a particular state‟s schedules—i.e., if the

import of the argument were to permit removal without

showing that a particular federal drug was involved so long as

a state‟s schedules are, as a whole, sufficiently “close to” the

federal schedules, or if a “vast number” or “many” of the

state‟s substances appear in the CSA, see Dissenting Op. at

11. It is left unexplained just how many substances a state

7

The dissent dismisses this concern by referring to jelly

beans as a “harmless product” and by noting that if a state

included tobacco in its definition of controlled substances we

would be spared having to make these difficult

determinations by a Supremacy or Commerce Clause

challenge to the problematic state statute. See Dissenting Op.

at 15 note 3. But jelly beans and tobacco are merely two

poignant examples. States have in actuality criminalized

substances at various times that are not as easily dismissed as

jelly beans, such as peyote. See Paulus 11 I. & N. Dec. at

275. And, like the Department, our dissenting colleagues

offer no doctrinal way to distinguish between removing Rojas

today, despite the lack of a federally controlled substance, and

not removing individuals convicted of possessing non-

federally controlled substances tomorrow.

20

would have to include in its lists that are not in the federal

lists before its drug-related offenses would no longer qualify

as removable offenses, or whether inclusion of a particularly

odd substance (such as jelly beans or large sugary beverages)

would suffice. We doubt Congress included a specific

reference to the federal schedules only to have removability

turn on these unworkable inquiries.8

Finally, the Department‟s reading would result in a

patchwork of removability rules dependent on the whims of

the legislatures of the fifty states—effectively permitting

them to control who may remain in the country via their

controlled-substances schedules—not to mention the laws of

all foreign nations, which may ban substances that are

commonplace in the United States, such as poppy seeds.

Although Congress has, on occasion, allowed non-uniformity

by tying immigration consequences to state law, here the

explicit reference to section 802 of Title 21 shows that

Congress has “pegged the immigration statutes to the

classifications Congress itself chose. . . . [I]t is just not

plausible that Congress meant to authorize a State to overrule

8

This proposed reading of § 1227(a)(2)(B)(i), that

“relating to” modifies both “controlled substances” as well as

the parenthetical, is also at odds with the Department and the

BIA‟s view that the parenthetical may only modify the

immediate antecedent term “controlled substance” but not

“relating to.” See supra note 6. What is good for the goose

must be good for the gander—either the clauses of the text

modify more than one term or they do not. We reject the

Department‟s view of the shifting transitive powers of the

different clauses of § 1227(a)(2)(B)(i).

21

its judgment about the consequences of . . . offenses to which

its immigration law expressly refers.” Lopez, 549 U.S. at 58-

59; see also Desai, 520 F.3d at 766 (reasoning that because of

the parenthetical, states do not have “free rein to define their

criminal laws in a manner that would allow them to . . .

determine who is permitted to enter and live in the country”);

cf. Lozano v. City of Hazelton, __ F.3d __, No. 07-3531, 2013

WL 3855549, at *13 (3d Cir. July 26, 2013) (highlighting

“the important national interests that are implicated when

local governments attempt to regulate immigration and the

concomitant need to leave such regulation in the hands of the

federal government”).9

***

For these reasons, we hold that the text of

§ 1227(a)(2)(B)(i) requires the Department to establish that a

foreign national‟s conviction is both (1) under a law relating

to a controlled substance, and (2) involved or implicated a

drug defined in section 802 of Title 21. This reading gives

effect to all words of the statute and, in our view, most

comports with Congress‟s intent in drafting the law. Because

the undisputed documents before the IJ contain no such

9

We agree with the Department that Congress may

choose to remove noncitizens who violate the controlled-

substances laws of other nations or of the states, even if those

jurisdictions choose to criminalize substances different than

Congress chose. See Oral Arg. at 54:54-55:10 (May 29,

2013). But, if it wishes to do so, Congress must excise the

explicit reference to federally controlled substances from the

statute.

22

showing, the record is defective and the order of removal is

invalid.

B. Other Interpretative Mechanisms to Construe

§ 1227(a)(2)(B)(i)

Of course, the rule of the last antecedent, like most

canons of construction, is not absolute. Barnhart, 540 U.S. at

26. But the Department offers no “other indicia of meaning”

from the text to convince us not to follow it. Id. Instead,

following its focus on “relating to” rather than the “as

defined” parenthetical, the Department posits that the answer

to the question of whether a drug-paraphernalia statute

“relates to” controlled substances is provided by the

analytical doctrine known as the “formal categorical

approach.” See, e.g., Resp‟t‟s Br. at 13 (citing Singh v.

Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004)). The Department

contends that the cases applying that doctrine also

demonstrate that the “as defined” parenthetical is of little

consequence and that a conviction for a non-federally

controlled substance may result in removal. Rojas counters

that a variant known as the “modified categorical approach”

should govern. The parties also spar about whether cases

construing the words “relating to” in statutes such as

§ 1227(a)(2)(B)(i) demonstrate that the parenthetical is

irrelevant.

We address these contentions in some detail because

they ignore long-standing rules governing when such

approaches may be applied and reflect a fundamental

misunderstanding of those rules as delineated by the Supreme

Court and by our Court.

23

1. The Formal Categorical and Modified

Categorical Approaches

It is well-established that the categorical approach is a

method often used to ascertain whether a prior conviction

“fits” the definition of a generic federal predicate offense for

purposes of certain immigration or sentencing consequences.

The archetypical case is Taylor v. United States, where the

issue was whether a past state burglary conviction constituted

a “burglary” as that term is used in the Armed Career

Criminal Act, 18 U.S.C. § 924(e)(1) (“ACCA”), thus

triggering certain sentencing enhancements under the ACCA.

495 U.S. 575, 578-79 (1990). The Supreme Court held that

the proper method to answer the question is the categorical

approach, which requires a court to determine only whether a

conviction under the state statute “necessarily” contained all

of the elements of the federal baseline offense, “burglary,” by

comparing the elements of the state and federal crimes.

Taylor, 495 U.S. at 601-02. The Court has explained that in

performing that comparison, the court must assume that the

state law conviction “rested upon [no]thing more than the

least of the[] acts” criminalized by state law. See Johnson v.

United States, 559 U.S. 133, 136-37 (2010). The

methodology may also be used to determine whether a past

offense “fits” a crime listed in the INA. See, e.g., Gonzales v.

Dueñas-Alvarez, 549 U.S. 183, 185-87 (2007) (determining

whether a past conviction constitutes a “theft offense”).

It is also a fundamental rule that courts applying the

categorical approach may not delve into the particular facts of

a conviction to ascertain if there is a proper fit. See Taylor,

495 U.S. at 599-602. The Department urges that this rule

disposes of any requirement that a federally controlled

24

substance must be involved in any given conviction for

purposes of determining whether that conviction qualifies as a

removable offense under § 1227(a)(2)(B)(i).

With this line of reasoning, the Department seems to

imply that the categorical approach is the proper rubric of

analysis every time we are required to determine whether a

conviction fits into the definition of a crime referenced in the

INA, or at the very least whether it fits into

§ 1227(a)(2)(B)(i). This view is deeply flawed. Recently, the

Supreme Court explained that the categorical approach

applies when one must compare the defendant‟s or the

noncitizen‟s conviction to a “generic crime” such as

“burglary” or “theft.” Moncrieffe v. Holder, 133 S. Ct. 1678,

1684-85 (2013) (citing Nijhawan v. Holder, 557 U.S. 29, 37

(2009), aff’g 523 F.3d 387 (3d Cir. 2008)). We made a

similar point almost ten years ago, noting that we had

generally applied the element-by-element comparison of the

categorical approach in “cases interpreting relatively unitary

categorical concepts—like „forgery‟ . . . „burglary‟ . . . or

„crime of violence.‟” Singh, 383 F.3d at 161.10

But not one of these cases involves a determination of

whether a state offense is one “relating to” controlled

10

In the years since Singh, we have consistently applied

the categorical approach to see whether a state crime fits into

generic, unitary crimes such as “serious drug offenses,”

United States v. Tucker, 703 F.3d 205, 208-09 (3d Cir. 2012);

a “drug trafficking crime,” Thomas v. Att’y Gen., 625 F.3d

134, 142-44 (3d Cir. 2010); or the “sexual abuse of a minor,”

Restrepo v. Att’y Gen., 617 F.3d 787, 791 (3d Cir. 2010).

25

substances (or “relating to” anything else), and, needless to

say, none involves an interpretation of the meaning of the “as

defined” parenthetical. Thus, it is unsurprising that despite its

repeated invocation of the categorical approach to analyze

§ 1227(a)(2)(B)(i), the Department cannot maintain that the

law—which refers broadly to crimes “relating to” controlled

substances—lists any discrete offense against which

Pennsylvania‟s paraphernalia statute can be compared.

Accordingly, even assuming that the question presented in

this case was whether drug-paraphernalia statutes “relat[e] to”

controlled substances, the formal categorical approach would

not apply.

It is true that the categorical approach permits a slight

deviation, known as the modified categorical approach, from

the baseline rule that an inquiring court may not look into the

particular circumstances of a conviction. When a statute of

conviction lists elements in the alternative, some of which fit

the federal definition and some of which do not, a court is

permitted “to consult a limited class of documents . . . to

determine which alternative formed the basis of the

defendant‟s prior conviction.” Descamps v. United States,

133 S. Ct. 2276, 2281 (2013).11

11

The basic example is when a state defines “burglary”

as “breaking and entering” into a vehicle or a dwelling.

Because only breaking into a dwelling meets the generic

federal definition, the statute of conviction does not

categorically fit within the federal crime, but the modified

categorical approach may provide an answer. See, e.g.,

Taylor, 495 U.S. at 599-602 (addressing this example).

Contrary to the dissent‟s admonition, our decision in Evanson

v. Attorney General does not support the proposition that we

26

But it is simply not the case that the modified

categorical approach fills the void, or provides a blanket

invitation for a court to inquire into the facts underlying a

conviction every time the categorical approach does not

provide an answer. As the Supreme Court recently explained,

the methodology is simply “a mechanism for making th[e]

comparison [required by the formal categorical approach]

when a[n underlying] statute lists multiple, alternative

elements, and so effectively creates „several different . . .

crimes.‟” Id. at 2285 (last alteration in original) (quoting

Nijhawan, 557 U.S. at 41).12 Indeed, given that the modified

categorical approach is merely a “tool for implementing the

“could” apply the categorical approach in this case. See

Dissenting Op. at 5 (quoting 550 F.3d 284, 290 (3d Cir.

2008)). In Evanson, we applied the categorical (and modified

categorical) approach to determine whether a conviction fit

another generic, unitary crime, namely, an “aggravated

felony” under the INA. Evanson, 550 F.3d at 291-92.

12

Descamps construed a provision of the ACCA, not the

INA. The BIA has stated its view that it may apply the

modified categorical approach more broadly in the context of

the INA than whatever is mandated by courts construing the

ACCA. See Matter of Lanferman, 25 I. & N. Dec. 721, 728

(BIA 2012). But we have rejected any notion that the

analysis is different depending on whether the federal

baseline statute resides in the INA or the ACCA. See, e.g.,

Jean-Louis v. Att’y Gen., 582 F.3d 462, 478-80 (3d Cir.

2009). And the Supreme Court‟s decisions in Moncrieffe and

Descamps, both analyzing interchangeably INA and ACCA

cases, make clear that Lanferman has been abrogated.

27

categorical approach,” id. at 2284, then, by definition, it has

nothing to say in cases—such as this one—where the

categorical approach itself is irrelevant. Moreover,

Pennsylvania‟s paraphernalia statute is not phrased in the

disjunctive, with some elements satisfying the federal

baseline offense and some not—it does not “effectively

create[] „several different crimes‟”—so one could not employ

the modified categorical approach in any event. Id. at 2285.13

Thus, the modified categorical approach does not

apply in this case. Here, we derive the obligation to establish

the existence of a federally controlled substance simply from

the text of the law. Our holding is not an invitation to inquire

into or relitigate the circumstances underlying every drug

conviction—the existence of a federally controlled substance

will be established in the same way as the existence of the

conviction itself is normally established.14

13

Courts are permitted to depart from the categorical

approach and “relating to” cases entirely “when the terms of

the statute invite inquiry into the facts underlying the

conviction at issue.” Singh, 383 F.3d at 161; see, e.g.,

Nijhawan, 523 F.3d at 392-93 (determining whether a

conviction constitutes an offense that “involves fraud or

deceit in which the loss . . . exceeds $10,000” (quoting 8

U.S.C. § 1101(a)(43)(M)(i)). There is no contention that the

removability conduct at issue in § 1227(a)(2)(B)(i) implicates

the rationale of cases like Nijhawan.

14

Were we to insist on fitting the question presented here

into the categorical approach, odd results would follow. Even

if we could somehow subject Pennsylvania‟s drug-

paraphernalia statute to an element-by-element comparison

28

2. Cases Involving “Relating to” Statutes

In addition to cases that apply the formal/modified

categorical approach, a parallel but distinct line of cases has

developed to address situations in which the relevant federal

conduct is presented not as a generic, unitary crime but as a

conviction “relating to” other crimes or objects. In these

cases, courts do not require a strict element-by-element match

between the offense of conviction and the federal baseline,

the hallmark of the categorical approach. Instead, the inquiry

focuses on the nature of the defendant‟s conviction, and

whether it “stand[s] in relation,” “pertain[s],” has “bearing of

concern,” or “refer[s]” to the object or crime of comparison.

Desai, 520 F.3d at 764 (quoting Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 384 (1992)).

We used this form of analysis, for example, in Denis v.

Attorney General to determine whether a state conviction for

tampering with physical evidence constituted a crime

against some federal offense, we would be forced to conclude

that the drug-paraphernalia statute “sweeps more broadly”

than federal drug statutes do, Descamps, 133 S. Ct. at 2283,

because Pennsylvania criminalizes substances that are not

illegal under federal law. Under the categorical approach,

then, the “inquiry [would be] over” and no examination of the

underlying conviction possible. Id. at 2286. Under this

improbable application of the categorical approach, many

drug offenses under Pennsylvania law could never constitute

a removable offense, unless, say, they contain as an element a

specific substance that is federally controlled. This plainly

incorrect result demonstrates that the categorical approach is

a red herring here.

29

“relating to obstruction of justice.” 633 F.3d 201, 204 (3d

Cir. 2011). We held that it did, not because of any “precise

degree of similarity between the elements of Denis‟s offense

and a listed federal crime,” but rather based on the

“interrelationship” between the state statute and “obstruction

of justice.” Id. at 212; see also Yong Wong Park v. Att’y

Gen., 472 F.3d 66, 72 (3d Cir. 2006) (holding that whether a

statute of conviction is one “relating to counterfeiting”

depends on whether it “seeks to discourage the act of

counterfeiting” (citation and internal alteration omitted)).15

To be sure, this line of cases would provide the proper

rubric of analysis if the question at issue was whether

paraphernalia statutes “relate to” controlled substances, which

neither party contests. But the Department asks us to

15

Indeed, many cases deciding whether a statute “relates

to” drugs involve statutes of conviction that have no exact

federal analog, making impossible the comparison of

elements that the categorical approach requires. See, e.g.,

Luu-Le, 224 F.3d at 915 (concluding that a state paraphernalia

statute “relates to” controlled substances not on the basis of

the categorical approach, but rather because “[t]he statute

makes abundantly clear that an object is not drug

paraphernalia unless it is in some way linked to drugs”);

Desai, 520 F.3d at 765 (holding that a state statute

criminalizing the sale of drug look-alike substances, a law

with no federal-law analog, “relates to” controlled substances

not based on a comparison of elements, but because a

conviction for a drug look-alike substance “would not even

exist as a legal (or linguistic) concept without its connection”

to drugs).

30

extrapolate the “relating to” cases to conclude that so long as

a state‟s controlled-substances schedules “show[] substantial

(and obviously intentional) overlap” with the federal

schedules, a drug-paraphernalia conviction satisfies the

removability provision of § 1227(a)(2)(B)(i) even if the actual

substance involved is not evident from the record of

conviction. Resp‟t‟s 28(j) Letter at 1-2, Aug. 22, 2012. This

we decline to do. The proposed use of the “relating to” cases

is merely a repackaged version of the argument that “relating

to” modifies both “controlled substance” as well as the “as

defined” parenthetical, a reading we have already rejected. In

other words, the invitation to read “relating to” as modifying

the parenthetical is but a thinly-veiled suggestion that we

permit those words to excise the parenthetical entirely. Supra

Parts IV.A.1, 4.

3. Our Decision in Borrome v. Attorney General

The Department and the dissent also rely extensively

on Borrome v. Attorney General for the idea that the

substance involved in Rojas‟s offense is irrelevant, but that

case did not address the effect of the “as defined”

parenthetical and is thus not controlling here. If anything,

Borrome most clearly demonstrates the differences between

the categorical approach and the “relating to” line of cases.

In that sense, far from “repudiating” Borrome, Dissenting Op.

at 15, we embrace it.

Borrome was convicted under the Food, Drug, and

Cosmetic Act (“FDCA”) of engaging in the unauthorized

distribution of certain prescription drugs, and we had to

determine whether the FDCA conviction was a “drug

trafficking crime,” and/or whether the FDCA statute was one

31

“relating to” controlled substances under § 1227(a)(2)(B)(i).

687 F.3d at 152-53. In answering the first question, we

applied the categorical approach to determine whether the

elements of the FDCA conviction corresponded to the

elements of a generic “drug trafficking crime.” See id. at

155-59. In answering the second question, we relied on the

“broad ordinary meaning” of the words “relating to” and

focused on the “range of behavior” targeted by the FDCA.

Id. at 160-62.16 Borrome thus aptly illustrates our application

of the first question we must ask under § 1227(a)(2)(B)(i):

whether a statute of conviction criminalizes conduct “relating

to” controlled substances. See also Luu-Le, 224 F.3d at 915

(describing a law that relates to controlled substances as one

16

While in Borrome we also referenced the categorical

approach when analyzing this second question, we did so in

rejecting the IJ‟s consideration of the particular facts of the

petitioner‟s underlying conviction. See 687 F.3d at 159-60 &

n.7. But in no way does Borrome support the Department‟s

contention that the categorical approach is the proper rubric

of analysis in all of these cases. Indeed, while we also made

reference to the categorical approach in Denis, in that case we

in reality engaged in traditional “relating to” analysis, as

indicated earlier at Part IV.B.2. See Denis, 633 F.3d at 211-

12 (explaining that “[t]o give effect to Congress‟s choice of

language, a categorical matching of the elements of the

offense of conviction with the elements of a federal law

cannot be the sole test for determining whether a crime of

conviction „relates to‟ a generic federal offense,” and

concluding that an offense for tampering with evidence

“bears a close resemblance to . . . obstruction of justice” and

thus constituted a crime “relating to obstruction of justice”).

32

that “is plainly intended to criminalize behavior involving the

production or use of drugs”). But, because we concluded that

the FDCA was not a law “relating to” a controlled substance,

we stated that the substance underlying the conviction in

Borrome was irrelevant. In other words, we did not have

occasion in Borrome to address the meaning of the “as

defined” parenthetical.17

Moreover, in concluding that the FDCA conviction did

not relate to the CSA, we noted in Borrome that the FDCA

prohibits “countless activities that are completely

unconnected to controlled substances” and also that the

connection between the substances listed in the CSA and

those at issue in the FDCA was “not at all evident from the

face of [the statute] and only emerges after a journey through

other laws.” 687 F.3d at 162. The reference to the two

schedules showed simply that the one common link between

the FDCA and the CSA, the overlap in some of the

substances at issue under each, was itself so attenuated that it

did not warrant finding that FDCA offenses “relate to” CSA

offenses. Id. at 161-63. Thus, contrary to the Department

and the dissent‟s admonitions, see Dissenting Op. at 6-11, 15-

16, Borrome does not stand for the idea that the level of

correspondence between the federal schedules and a state‟s

schedules with respect to its drug laws is outcome-

determinative.

17

Similarly, despite the Department‟s extensive reliance

on Luu-Le, Luu-Le only addressed whether a drug

paraphernalia statute was a law “relating to” a controlled

substance, and did not reach the “as defined” parenthetical.

224 F.3d at 915.

33

***

The bottom line with respect to the foregoing analysis

is that not one of the categorical approach cases addresses the

effect of the “as defined” parenthetical of § 1227(a)(2)(B)(i)

on the Department‟s burden of proof. Instead, they dictate

only how exact the match between an underlying statute of

conviction and a federal baseline offense has to be in order to

satisfy federal law. The same is true of a common theme that

unites the categorical approach and the “relating to” cases—

the rule that the existence of a conviction is established not by

reference to the underlying facts of a case but by reference to

the underlying statute. Although the Department and the

dissent seek to import that rule into this case, the rule merely

explains how the Department must meet its burden, not what

that burden is. There is simply no doctrinal basis to transform

any of these rules into a mechanism to lessen the

Department‟s burden altogether or to use them to read a

clause entirely out of the removability statute. And the

existence of these diverse rules, applicable depending on how

the INA phrases the baseline offense, highlights an important

point: the text of the law is always paramount. The wording

of the baseline crime always dictates the proper method of

analysis. We ought not turn that principle on its head by

letting the different methodologies contort the words of the

statute.18

18

We decline to follow Mellouli v. Holder, 719 F.3d 995

(8th Cir. 2013), on which the Department relies, because it

wrongly assumed that the “categorical approach” is the

proper focus of the “relating to” inquiry. Id. at 1000-01.

Moreover, although the Mellouli petitioner conceded that

34

C. Rojas’s Remedy

We now address the proper remedy—whether to

reverse the BIA‟s ruling or to remand the case to the BIA so

that it may determine in the first instance whether to further

remand to the IJ to give the Department a proverbial second

bite at the apple.

The Department asks that, if we determine that

establishing the involvement of a federally controlled drug

was required, we remand the case so that it may make the

adequate showing under the “modified categorical approach.”

See Resp‟t‟s Br. at 13 n.11. But we have already concluded

that application of the categorical approach would, rather than

counseling a remand, mean that “the inquiry is over.”

Descamps, 133 S. Ct. at 2286; see also supra note 14.

Nevertheless, because the Department purports to be able to

make the required showing in the same way it established the

existence of the criminal conviction in the first place, we will

remand the matter to the BIA. Our remand is solely so that

the BIA may determine whether it is appropriate to further

remand the case to the IJ, to permit the Department to make

the required showing before that agency.

paraphernalia statutes generally “relat[e] to” controlled

substances, id. at 999, the Court nevertheless resorted to cases

dealing precisely with that question to solve the additional

issue of whether the Department must establish that a

federally controlled substance was at issue, without

addressing cases like Ruiz-Vidal that actually deal with the

Department‟s burden, see, e.g., id. at 997, 1000 (relying on,

among others, Luu-Le and Escobar Barraza).

35

To guide the BIA‟s decision, we note the following.

First, that normally the proper way to establish the fact of a

conviction is to rely on the so-called Taylor-Shepard

documents, and we see no reason why the existence of a

federally controlled substance cannot be similarly established.

See Shepard v. United States, 544 U.S. 13, 23-24, 26 (2005).

“[I]n the case of a guilty plea,” these documents consist of

“the plea agreement, plea colloquy, or some comparable

judicial record of the factual basis for the plea.” Moncrieffe,

133 S. Ct. at 1684 (internal quotation marks omitted). But we

have also recognized that a police criminal complaint may

establish the underlying fact of a conviction to the extent it

serves as a charging instrument with certain indicia of

reliability. See, e.g., Garcia v. Att’y Gen., 462 F.3d 287, 292

(3d Cir. 2006) (so holding when the complaint bore the

“imprimatur” of the district attorney). In that regard,

however, we reiterate that the reliability of the police criminal

complaint here is already in grave doubt. For one, it states

that it was approved by a Commonwealth attorney “via

phone” in a space where the document appears to require a

signature from an approving attorney. Moreover, it was

prepared in October of 2009, seven months after Rojas‟s

arrest. Finally, the affidavit of probable cause attached to the

complaint inexplicably narrates the arrest of a woman in June

of 2009 for drunk driving.

Second, the police criminal complaint here implicates

the Supreme Court‟s recent admonitions to be wary of

attempts to relitigate prior convictions based on documents

“the meaning of [which] will often be uncertain,” or when

“the statements of fact in them may be downright wrong.”

Descamps, 133 S. Ct. at 2289. Indeed, charging documents

36

generally implicate the Supreme Court‟s concern that “during

plea hearings, the defendant may not wish to irk the

prosecutor or court by squabbling about superfluous factual

allegations” in a document that does not constitute the basis

of a defendant‟s actual plea. Id. We trust that the BIA will

consider these points in deciding whether to remand the case

to the IJ.

V. CONCLUSION

The outcome of this case turns on the plain text of

§ 1227(a)(2)(B)(i), and, in particular, on the language of the

parenthetical: “as defined in section 802 of Title 21.” We

conclude that this clause means that the controlled-

substances conviction that is the basis of removal must

involve or relate to a substance “defined in” federal law.

Most drug convictions will qualify as removable offenses

under this reading. Indeed, the guilty plea or jury

instructions in a Pennsylvania drug-paraphernalia conviction

will normally list the drug at issue (given that a violation of

the statute requires the actual or intended presence of a

specific drug), and most of Pennsylvania‟s drugs are on the

federal list. It simply will be a matter of checking if the

substance at issue is contained in that list. Thus, “to the

extent that our rejection of the Government‟s broad

understanding of the scope of [this statute] may have any

practical effect on policing our Nation‟s borders, it is a

limited one.” Carachuri-Rosendo, 130 S. Ct. at 2589. And,

to be sure, Congress may change the trigger of removability

by altering—or deleting—the contents of the parenthetical.

Today, we simply give effect to the statute‟s most natural

reading.

37

We will grant Rojas‟s petition for review and remand

the case to the BIA for further proceedings in accordance

with this opinion.

38

GREENBERG, Circuit Judge, dissenting

As the majority has indicated, this matter is before this

Court on Ramiro Enrique Rojas‟s petition for review of a

decision and order of the BIA dated January 17, 2012,

dismissing his appeal from a decision of an immigration judge

(“IJ”) dated September 22, 2011. The case arises from the

circumstance that a Pennsylvania state court convicted Rojas, a

citizen of the Dominican Republic and lawful permanent

resident (“LPR”) of the United States, on the basis of his pleas

of guilty to state charges of use/possession of drug paraphernalia

and possession of marijuana. Thereafter the Department of

Homeland Security (“Department”) sought to remove Rojas

pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) by reason of those

convictions. Section 1227(a)(2)(B)(i) provides that:

Any alien who at any time after admission has

been convicted of a violation of (or a conspiracy

or attempt to violate) any law or regulation of a

State, the United States, or a foreign country

relating to a controlled substance (as defined in

section 802 of Title 21), other than a single

offense involving possession for one's own use of

30 grams or less of marijuana, is deportable.

Although the Department later conceded that Rojas‟s

conviction for possession of marijuana did not render him

removable because it did not pass the 30-gram statutory

removable threshold for marijuana, it continued to seek to

remove him on the basis of his separate conviction involving

drug paraphernalia. Rojas filed a notice to terminate the

1

removal proceedings pending against him before an IJ arguing

that his conviction for use/possession of drug paraphernalia

under Pennsylvania law did not “relate[] to a controlled

substance” within the meaning of section 1227(a)(2)(B)(i)

because the Pennsylvania definition of a controlled substance “is

more expansive” than that found in 21 U.S.C. § 802 (the

“Controlled Substances Act” or “CSA”) and thus his conviction

did not necessarily involve a controlled substance as defined in

the CSA. App. at 128 (internal quotation marks omitted). In

this regard, Rojas pointed out that the state court record of his

conviction did not specify the controlled substance involved in

his offense. The IJ denied Rojas‟s motion and sustained the

controlled substance charge of removability against Rojas and

issued a removal order. The BIA dismissed Rojas‟s appeal from

the IJ‟s decision and Rojas then filed a petition for review with

this Court. After a panel of this Court heard oral argument but

before it issued its opinion the Court on its own initiative

ordered that the matter be heard by the Court en banc.

Following argument before the en banc Court, the majority now

is granting the petition but I am dissenting as I would deny the

petition for review.1

1

The majority indicates that it does not matter whether it

reviews the BIA‟s legal conclusions de novo or reviews them

under the principles that the Supreme Court set forth in

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 104 S.Ct. 2778 (1984), and I agree that the

scope of review that the Court uses in this case does not matter

for under any approach this Court should deny the petition for

review. Unlike the majority I make scant reference to opinions

2

Ultimately this case presents a single straightforward

question: was Rojas‟s conviction based on his guilty plea under

35 Pa. Stat. Ann. § 780-113(a)(32) (West 2003) for

use/possession of drug paraphernalia a “violation of . . . any law

of a State . . . relating to a controlled substance (as defined by

section 802 of Title 21)” under section 1227(a)(2)(B)(i).

Section 780-113(a)(32) prohibits:

The use of, or possession with intent to use, drug

paraphernalia for the purpose of planting,

propagating, cultivating, growing, harvesting,

manufacturing, compounding, converting,

producing, processing, preparing, testing,

analyzing, packing, repacking, storing,

containing, concealing, injecting, ingesting,

inhaling or otherwise introducing into the human

body a controlled substance in violation of this

act.

Pennsylvania courts have held that to sustain a conviction

for possession of drug paraphernalia under 35 Pa. Stat. Ann. §

780-113(a)(32), “the Commonwealth must establish that the

items possessed, were used or intended to be used with a

controlled substance.” Commonwealth v. Torres, 617 A.2d 812,

815 (Pa. Super. Ct. 1992). Pennsylvania law, in part tracking

section 780-113(a)(32), broadly provides that “drug

paraphernalia” means:

from other jurisdictions because the meaning of section

1227(a)(2)(B)(i) is clear on its face and in reaching my result I

simply rely on the text of the law as written.

3

[A]ll equipment, products and materials of any

kind which are used, intended for use or designed

for use in planting, propagating, cultivating,

growing, harvesting, manufacturing,

compounding, converting, producing, processing,

preparing, testing, analyzing, packaging,

repackaging, storing, containing, concealing,

injecting, ingesting, inhaling or otherwise

introducing into the human body a controlled

substance in violation of this act.

35 Pa. Stat. Ann. § 780-102(b) (West 2003). A “controlled

substance” in Pennsylvania is “a drug, substance, or immediate

precursor included in Schedules I through V of [the

Pennsylvania Controlled Substance, Drug, Device, and

Cosmetic Act].” Id. Under the CSA in 21 U.S.C. § 802(6)

“controlled substance” means:

a drug or other substance, or immediate precursor,

included in schedule I, II, III, IV, or V of part B

of this subchapter. The term does not include

distilled spirits, wine, malt beverages, or tobacco,

as those terms are defined or used in subtitle E of

the Internal Revenue Code of 1986.

Rojas contends that his conviction does not fall within

section 1227(a)(2)(B)(i) because the Department did not

establish that the CSA includes the unidentified substance

underlying his state-law paraphernalia conviction as a controlled

substance. Specifically, he argues that “in order to prove

deportability under [section 1227(a)(2)(B)(i), the Department]

4

must show that Mr. Rojas‟s criminal conviction was for

possession of a substance that is not only listed under the

Pennsylvania controlled substance schedules, but also contained

in the federal schedules of the Controlled Substance Act.”

Petitioner‟s br. at 14. Rojas contends that inasmuch as the

record of his conviction does not identify the substance involved

in his offense and the Pennsylvania schedules list more

substances than their federal counterparts, his conviction is not

necessarily one “relating to a controlled substance (as defined in

section 802 of Title 21).”

To determine whether Rojas‟s drug paraphernalia

possession conviction renders him removable pursuant to

section 1227(a)(2)(B)(i), the Court could “apply a formal

categorical approach.”2 Evanson v. Att‟y Gen., 550 F.3d 284,

290 (3d Cir. 2008) (citation and internal quotation marks

2

Such an application would be consistent with the Supreme

Court‟s recent holding in Moncrieffe v. Holder, 569 U.S. __,

133 S.Ct. 1678 (2013), in which the Court applied the formal

categorical approach to determine if a conviction for a Georgia

state offense constituted “illicit trafficking in a controlled

substance,” 8 U.S.C. § 1101(a)(43)(B), and therefore was an

“aggravated felony” under the Immigration and Nationality Act

(INA), 8 U.S.C. § 1101 et seq. As the Court explained, “[w]hen

the Government alleges that a state conviction qualifies as an

„aggravated felony‟ under the INA, [it] generally employ[s] a

„categorical approach‟ to determine whether the state offense is

comparable to an offense listed in the INA.” 133 S.Ct. at 1684

(citations omitted).

5

omitted) (discussing whether an offense of conviction amounts

to an aggravated felony under the Immigration and Nationality

Act). Under this approach, which the BIA applied, a court

“must look only to the statutory definitions of the prior offenses,

and may not consider other evidence concerning the defendant‟s

. . . crimes, including . . . the particular facts underlying a

conviction.” Borrome v. Att‟y Gen., 687 F.3d 150, 155 (3d Cir.

2012) (citations and alterations omitted). But Rojas contends

that the IJ and BIA should have used a modified categorical

approach in which “a limited number of judicially noticeable

documents [should be considered] to determine whether the

alien was in fact convicted of a removable offense.” Petitioner‟s

br. at 15. The majority, however, does not reach its result by

applying either a formal or modified categorical approach.

Rather, it explains that it reaches its result “simply from the text

of the law.” Majority typescript at 24. But no matter what

approach is taken it should be evident that Rojas‟s argument is

wrong and that the Court should deny his petition for review.

Though I limit my discussion of cases from other courts,

our opinion in Borrome requires discussion for, as I will explain,

the majority is repudiating a critical portion of that case. In

Borrome, in dealing with the relationship between the Federal

Food, Drug, and Cosmetics Act (“FDCA”) and the CSA this

Court observed that “the BIA has interpreted [„relating to‟]

expansively: [t]he „relating to‟ concept has a broad ordinary

meaning, namely, to stand in some relation; to have bearing or

concern; to pertain; refer; to bring into association with or

connection with.” Borrome, 687 F.3d at 160 (quoting Matter of

Espinoza, 25 I. & N. Dec. 118, 120 (BIA 2009)) (some internal

quotation marks omitted). Moreover, as is particularly

6

significant here the Court in Borrome also pointed out that:

Unless an alien claims that the basis of his alleged

removability is „a single offense involving

possession for one‟s own use of 30 grams or less

of marijuana,‟ § 1227(a)(2)(B)(i) does not ask

courts to scour an alien‟s indictment and sniff out

a controlled substance, or otherwise to look to the

underlying facts of an alien‟s conviction, to

determine whether the alien is removable. Such

an inquiry would be irrelevant. The important

statutory phrase is „relating to a controlled

substance,‟ and it modifies „law or regulation.‟

See Mielewczyk v. Holder, 575 F.3d 992, 994

(9th Cir. 2009); see also Mizrahi v. Gonzales, 492

F.3d 156, 159 (2d Cir. 2007) (noting that 8 U.S.C.

§ 1182(a)(2)(A)(i)(II), which is the inadmissibility

counterpart to 8 U.S.C. § 1227(a)(2)(B)(i),

„applies only if the “law or regulation” violated

relates to controlled substances‟). An analysis of

the laws or regulations of conviction is required.

Therefore, our task is to determine whether the

FDCA‟s wholesale distribution provisions, 21

U.S.C. §§ 331(t) and 353(e)(2)(A), are laws

„relating to a controlled substance‟ not (as the IJ

seems to have believed) whether the facts of

Borrome‟s conviction „relat[e] to a controlled

substance.‟

Id. at 159 (emphasis added). The importance of the foregoing

statement in Borrome is obvious and if I could I would doubly

7

emphasize the last sentence.

The Pennsylvania drug paraphernalia law stands in the

same relationship to section 1227(a)(2)(B)(i) as the FDCA

provisions the Court considered in Borrome as both are “law[s]

. . . of a State [or] the United States.” Thus, the question before

the Court now is whether the Pennsylvania controlled substances

paraphernalia possession law under which Rojas was convicted

was a statute relating to a controlled substance as defined in 21

U.S.C. § 802 just as in Borrome the question was whether the

FDCA sections violated were laws relating to controlled

substances within section 1227(a)(2)(B)(i). On this point

notwithstanding the majority‟s conclusion there should be no

doubt.

In Borrome, an IJ found an alien removable pursuant to 8

U.S.C. §§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii) because he had

been convicted of an aggravated felony in violation of the

FDCA as set forth in 21 U.S.C. §§ 331(t) and 353(e). 687 F.3d

at 153. The IJ also found the alien removable under section

1227(a)(2)(B)(i) as an alien convicted of violating a law

“relating to a controlled substance.” Id. The alien appealed but

the BIA summarily affirmed and the alien then filed a petition

for review with this Court. Id. at 154. This Court granted the

petition and vacated the order of removal, concluding that the

FDCA provisions were not laws “relating to a controlled

substance” as defined by 21 U.S.C. § 802 under 8 U.S.C. §§

1101(a)(43)(B), 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i). 687

F.3d at 162-63. Nevertheless, the Court noted that the BIA and

several other courts of appeals “have held that a law prohibiting

the possession or use of drug paraphernalia is a law „relating to a

8

controlled substance,‟” because “[p]araphernalia statutes relate

to controlled substances, even though they prohibit the

possession of instruments rather than controlled substances

themselves, because the possession of an item intentionally used

for manufacturing, using, testing, or enhancing the effect of a

controlled substance necessarily pertains to a controlled

substance.” Id. at 160 (some internal quotation marks omitted).

In Borrome, however, the Court recognized that although

the definition of “controlled substance” under a state law need

“not map perfectly with the definition of „controlled substance‟

under the CSA,” id. (some internal quotation marks omitted),

“the phrase „relating to . . .‟ must have limits, lest it be bent

beyond all logical meaning.” Id. at 162. Accordingly, in

Borrome the Court held that “the phrase „any law . . . relating to

a controlled substance‟ reaches those laws that do not require

the actual involvement of a controlled substance for a

conviction,” but stated that “we are equally convinced that a law

does not automatically come within the ambit of that phrase

simply because a conviction may involve a controlled

substance.” Id. at 161 (emphasis in original). The Court

observed that some prescription drugs subject to the

proscriptions of the FDCA in 21 U.S.C. §§ 331(t) and 353(e)

were also “controlled substances” as defined under the CSA

including the powerful opiate Oxycontin, but some, such as

Viagra, were not. The Court thus held that “[t]he coincidental

possibility that a controlled substance might be involved with

the violation of a law or regulation is not enough to make that

law or regulation one „relating to a controlled substance‟ for

deportability purposes under § 1227(a)(2)(B)(i).” 687 F.3d at

161-62.

9

In reaching its conclusion in Borrome with respect to the

limits of the CSA, the Court observed that the connection under

the FDCA between 21 U.S.C. §§ 331(t) and 353(e) and

controlled substance offenses was attenuated, and that although

there is a “nexus” between prescription drugs and controlled

substances, “[t]o see the connection . . . [,] we must rummage

through [a] 400-plus page „Prescription Drug Product List‟ . . .

and then hunt for a match in the roughly 100 pages of schedules

of controlled substances in the Code of Federal Regulations.”

Id. at 162. The Court also recognized that those statutes

“criminalize a substantial swath of conduct with no nexus to

controlled substances as defined in 21 U.S.C. § 802,” id.,

because those “statutes are blind to whether a particular

prosecution involves highly addictive prescription painkillers, or

relatively benign prescription shampoos, topical creams, or eye

drops.” Id. Thus, the Court was of the view that classifying 21

U.S.C. §§ 331(t) and 353(e) as laws “„relating to a controlled

substance‟ would stretch too far the bounds of the phrase

„relating to.‟” Id.

Here, however, there is a close nexus between the state

crime of use/possession of drug paraphernalia to which Rojas

pleaded guilty and the CSA under 21 U.S.C. § 802 because only

an infinitesimal portion of the drugs listed as controlled

substances in the Pennsylvania schedules do not appear on the

federal schedules. As the majority points out the parties agree

that at the time of Rojas‟s conviction the Pennsylvania

controlled substances schedules contained only three narcotics

not listed on the federal controlled substances schedules.

Majority typescript at 5. Indeed, Rojas does not even contend

that the drug paraphernalia in his case related to one of this

10

minute fraction. In this vein, the Department argues that Rojas‟s

state conviction categorically falls within section

1227(a)(2)(B)(i) because “Pennsylvania‟s drug schedules . . .

closely mirror the federal ones,” and “the offense of drug

paraphernalia is closely linked to the offense of possessing

drugs.” Respondent‟s br. at 19-20.

Certainly the Department‟s assertion with respect to the

overlap of controlled substances is correct though the

Pennsylvania and federal lists of controlled substances are not

precisely identical. In considering this deviation in the

schedules the majority misses the forest for the trees in

performing a strict one-to-one comparison between the federal

and state lists. Congress, moreover, provided for slight variation

by referencing “any law or regulation of a State” and then

utilizing the broad language of “relating to” concerning

controlled substances as defined in federal law. See, e.g., Desai

v. Mukasey, 520 F.3d 762, 766 (7th Cir. 2008) (“If Congress

wanted a one-to-one correspondence between the state laws and

the federal CSA, it would have used a word like „involving‟

instead of „relating to,‟ . . . .”).

In any event, even though there were a minute number of

substances that at the time of Rojas‟s paraphernalia conviction

were controlled substances under Pennsylvania law but not

under the CSA, section 1227(a)(2)(B)(i) is applicable here.

After all, it is clear that, although, as Rojas contends, the

Pennsylvania definition of controlled substances goes beyond

the federal definition of controlled substances, the Pennsylvania

drug paraphernalia law as set forth in 35 Pa. Stat. Ann. § 780-

113(a)(32) under which Rojas was convicted applies to

11

paraphernalia used in connection to a vast number of controlled

substances as defined in 21 U.S.C. § 802. Therefore, Rojas

pleaded guilty to a violation of a state law that related to many

controlled substances as defined in 21 U.S.C. § 802.

The interpretation of section 1227(a)(2)(B)(i) that I

advance is consistent with the Court‟s reading of that section in

Borrome and is supported by the “rule of the last antecedent.”

That rule, an accepted principle of statutory interpretation,

teaches that “a limiting clause or phrase . . . should ordinarily be

read as modifying only the noun or phrase that it immediately

follows.” Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376,

380 (2003) (citation omitted); see also Disabled in Action of Pa.

v. SEPTA, 539 F.3d 199, 210 n.13 (3d Cir. 2008). Although the

rule is not absolute and can be negated “by other indicia of

meaning,” the Supreme Court has said that interpreting statutes

in conformity with the rule is „“quite sensible as a matter of

grammar.”‟ Barnhart, 540 U.S. at 26, 124 S.Ct. at 380 (quoting

Nobelman v. Am. Sav. Bank, 508 U.S. 324, 330, 113 S.Ct.

2106, 2111 (1993)). Moreover, in Barnhart the Supreme Court

reversed this Court for failing to adhere to this common rule of

English grammar. See id., 124 S.Ct. at 380-81.

Though the majority believes that the rule of the last

antecedent supports its result, in fact the majority is making the

same grammatical error that this Court made in Barnhart. As

stated above, the statutory text in section 1227(a)(2)(B)(i) at

issue reads:

Any alien who at any time after admission has

been convicted of a violation of (or a conspiracy

12

or attempt to violate) any law or regulation of a

State, the United States, or a foreign country

relating to a controlled substance (as defined in

section 802 of Title 21), other than a single

offense involving possession for one's own use of

30 grams or less of marijuana, is deportable.

The majority seems to believe that the rule of the last antecedent

supports its result because it indicates that the parenthetical, “as

defined in section 802 of Title 21,” “affects only its immediate

antecedent term, „a controlled substance.‟” Majority typescript

at 10. But the problem with the majority‟s analysis is that it is

considering the last antecedent to “as defined in section 802 of

Title 21.” But the fact is that the rule of the last antecedent

comes into play in this case when a court considers the last

antecedent to the phrase “relating to a controlled substance,” and

that antecedent certainly is “any law or regulation of a State, the

United States, or a foreign country” and not “convicted of a

violation.” After all, it simply cannot be reasonably denied that

the statute‟s plain language makes clear that the phrase “relating

to a controlled substance” does not follow the words “convicted

of a violation.” Therefore, regardless of the facts underlying a

conviction, if an alien is convicted of a violation of a state law

relating to a controlled substance, as surely was the case here

given Rojas‟s guilty plea for use/possession of drug

paraphernalia under 35 Pa. Stat. Ann. § 780-113(a)(32), he is

removable. Nothing could be clearer.

In reaching its result the majority is rejecting the plain

meaning of section 1227(a)(2)(B)(i) for it says that “the

Department must show that the conviction for which it seeks to

13

deport a foreign national involved or related to a federally-

controlled substance.” Majority typescript at 3. But section

1227(a)(2)(B)(i) says no such thing for what it says is that an

alien to be deported must be convicted of a violation of a law

“relating to a controlled substance (as defined in section 802 of

Title 21).” It is the law that the alien violated not the violation

of which the alien was convicted that must be related “to a

controlled substance (as defined in section 802 of Title 21).” It

is obvious that regardless of the substance involved in Rojas‟s

case he was convicted of violating a law relating to a controlled

substance as defined in section 802 of Title 21 and therefore the

Court should deny his petition for review.

I think that it is significant that in its opinion the majority

indicates that for an individual to be deported, the Department

must establish “that the individual it seeks to remove (1) is an

alien (2) who at anytime after entering the country violated or

attempted to violate a law relating to a controlled substance and

(3) that the controlled substance is defined as such by federal

law.” Majority typescript at 11. In this regard, it is clear that the

Department did establish that Rojas is an alien who violated a

law relating to a controlled substance as that term is defined by

federal law even if the particular drug involved in his case did

not come within the definition of section 802 of Title 21. In

effect the majority is rewriting section 1227(a)(2)(B)(i) by

adding the emphasized language so that the section reads as

follows:

An alien who at any time after admission has been

convicted of a violation of (or a conspiracy or

attempt to violate) any law or regulation of a

14

State, the United States, or a foreign country

relating to a controlled substance (as defined in

section 802 of Title 21), other than a single

offense involving possession for one‟s own use of

30 grams or less of marijuana is deportable,

provided that the conviction was for an offense

that involved a controlled substance as defined in

21 U.S.C. § 802.

My conclusion with respect to what the majority is

actually doing should surprise no one for Borrome explains,

“relating to a controlled substance . . . modifies „law or

regulation,‟” not the facts of the offense. 687 F.3d at 159.

Though the majority indicates that it is “embrac[ing]” Borrome,

majority typescript at 27, in fact, it is repudiating that case‟s

critical statement that relates “controlled substance” to “law or

regulation” and therefore the majority is making the same

mistake that the immigration judge made in Borrome.

Finally, it is important to point out that in this case we are

not concerned with a state law the violation of which might

involve a controlled substance in an attenuated or happenstance

way. Quite to the contrary, the Pennsylvania law under which

Rojas was convicted was aimed at the regulation of controlled

substances almost all of which were controlled substances under

both Pennsylvania and federal law. Thus, Rojas‟s state case did

not involve a statute impacting on controlled substances

as a matter of chance as would be, for example, a general

shoplifting statute which precluded the shoplifting of any

merchandise and without specific reference included controlled

15

substances.3 If Rojas‟s prosecution and conviction had been

under such a statute it would be unreasonable to say that he had

been convicted under a law relating to a controlled substance as

defined in 21 U.S.C. § 802. See Borrome, 687 F.3d at 162.

For the reasons I have set forth I dissent from the

majority opinion as it is clear that the Court should deny Rojas‟s

petition for review and vacate the stay of removal that it granted

on January 31, 2012. Judge Fisher joins in this opinion.

3

I recognize that in theory there could be a problem if a state

nonsensically added a harmless product such as jelly beans to its

controlled substances schedules but I decline to reach my result

on that chance as Rojas does not contend that any such product

is involved here and I see no reason to believe that a state would

act in such an irrational way or if it did the addition would

survive judicial review. I further realize that, as the majority

points out, a state in what might not be regarded as a nonsensical

act could “include tobacco in its [controlled substances]

schedules.” Majority typescript at 11. Nevertheless, the remote

possibility that there could be such an inclusion in a state

controlled substances schedule should not control the result in

this case for we can be certain that if a state attempts to outlaw

the possession or use of tobacco the tobacco industry will not be

slow to file a district court action challenging the state law or

regulation under, inter alia, the Supremacy and Commerce

Clauses. In any event, long experience has taught me not to

decide cases to avoid a fictional parade of horribles.

16