Garcia v. Atty Gen USA

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

9-5-2006

Garcia v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 05-2786

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-2786

BELITO GARCIA,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A25 303 663)

Immigration Judge Donald Vincent Ferlise

Argued June 15, 2006

Before: FISHER, CHAGARES

and REAVLEY,* Circuit Judges.

*

The Honorable Thomas M. Reavley, United States

Circuit Judge for the Fifth Circuit, sitting by designation.

(Filed September 5, 2006)

Steven A. Morley

Thomas M. Griffin (Argued)

Morley, Surin & Griffin

325 Chestnut Street, Suite 1305-P

Philadelphia, PA 19106

Attorneys for Petitioner

Kathleen Meriwether (Argued)

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Attorney for Respondent

OPINION OF THE COURT

FISHER, Circuit Judge.

Belito Garcia petitions for review from the Board of

Immigrations Appeals’ final order of removal. Garcia’s petition

requires us to determine whether his conviction under section

13(a)(30) of the Pennsylvania Controlled Substance, Drug,

Device and Cosmetic Act (“the Act”), 35 Pa. Stat. Ann. § 780-

113(a)(30), constitutes an “aggravated felony” under relevant

provisions of the Immigration and Nationality Act (“INA”).

2

We have previously held that violations of similar

Delaware and New Jersey statutes do not qualify as aggravated

felonies. See Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002);

Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003). For the reasons

that follow, we conclude that the Pennsylvania Act is

distinguishable from both the Delaware and New Jersey statutes,

and that Garcia’s conviction qualifies as an aggravated felony.

We will therefore deny his petition for review.

I.

Garcia, a resident alien, was arrested in Philadelphia in

April 1996. According to the criminal complaint, which is part

of the administrative record, Garcia sold an amount of marijuana

to an undercover police officer, and later, on the same date,

possessed an amount of marijuana with the intent to deliver. On

September 26, 1996, Garcia pled nolo contendere1 before the

Philadelphia Municipal Court to two counts of manufacturing,

delivering, or possessing with the intent to deliver a controlled

substance, in violation of section 13(a)(30) of the Act, 35 Pa.

Stat. Ann. § 780-113(a)(30), and two counts of knowingly

possessing a controlled substance, in violation of section

13(a)(16) of the Act, 35 Pa. Stat. Ann. § 780-113(a)(16).

1

A plea of nolo contendere is a conviction for

immigration purposes. Acosta v. Ashcroft, 341 F.3d 218 (3d Cir.

2003).

3

On December 11, 1996, the Immigration and

Naturalization Service (“INS”)2 issued an order to show cause,

advising Garcia that he was removable from the United States

pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), based on his

conviction of an “aggravated felony.”3 An Immigration Judge

(“IJ”) subsequently found that Garcia’s conviction qualified as

an aggravated felony, and that, as a result, he was deemed to

have committed a “particularly serious crime.” Based on that

finding, the IJ denied Garcia’s application for asylum and

withholding of removal, and ordered him removed from the

United States. Garcia appealed the IJ’s order to the Board of

Immigration Appeals (“BIA”).

In a decision dated October 28, 1999, the BIA held that

Garcia’s aggravated felony conviction created a rebuttable

presumption that he had committed a “particularly serious

2

On March 1, 2003, the INS ceased to exist and its

functions were transferred to the newly formed Bureau of

Immigration and Customs Enforcement, within the United States

Department of Homeland Security. See Knapik v. Ashcroft, 384

F.3d 84, 86 n.2 (3d Cir. 2004) (citing Homeland Security Act of

2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116 Stat. 2135).

3

The order to show cause also charged Garcia with being

removable based upon his conviction for violating a law relating

to a controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i). The

IJ found Garcia removable based on this section, but that finding

is not challenged in Garcia’s petition for review, which only

concerns whether Garcia has been convicted of an aggravated

felony.

4

crime,” so as to render him ineligible for asylum and

withholding of removal under relevant provisions of the INA.

The BIA remanded the case for further proceedings as to

whether Garcia could “overcome the presumption that he had

been convicted of a particularly serious crime,” because the IJ

incorrectly believed that he did not have the discretion to hold

that the aggravated felony was not a particularly serious crime.

In an oral decision dated July 25, 2001, the IJ again held

that Garcia was removable based on his conviction of an

aggravated felony.4 The IJ also determined that Garcia had

failed to overcome the rebuttable presumption that his

conviction was for a particularly serious crime. Thus, the IJ

4

The IJ issued his decision after conducting two

additional hearings. At the first, the IJ questioned Garcia

regarding the nature of his offense. During this questioning,

Garcia purportedly admitted that his conviction was for an

aggravated felony. However, the IJ, noting Garcia’s status as a

layman and the technical nature of the term “aggravated felony,”

expressly found that Garcia had denied that his conviction was

for an aggravated felony. The IJ instead determined, as a matter

of law, that the conviction qualified as an aggravated felony. At

the second hearing, the IJ heard testimony regarding whether

Garcia’s conviction was for a particularly serious crime and

whether Garcia was entitled to deferral of removal under the

United Nations Convention Against Torture (“CAT”).

5

held that Garcia was ineligible for asylum and withholding of

removal.5

The BIA affirmed on March 12, 2003. In response to

Garcia’s argument that his conviction was not for an aggravated

felony, the BIA first noted that it had found Garcia’s conviction

to be an aggravated felony in its decision dated October 28,

1999. The BIA added that the conviction records established the

specific provision of Pennsylvania law under which Garcia was

convicted, and supported a finding that he was convicted of an

aggravated felony.6 The BIA also affirmed on other matters not

relevant to the current petition for review.

On August 11, 2004, Garcia filed a petition for a writ of

habeas corpus in the United States District Court for the Eastern

District of Pennsylvania, seeking a determination that his

Pennsylvania drug conviction was not an aggravated felony, and

5

The IJ also denied Garcia’s petition for deferral of

removal under the CAT on factual grounds.

6

In addition, the BIA noted that “at the remanded hearing,

[Garcia] admitted that he was convicted of an aggravated

felony, [ ] and his attorney, at the second hearing, did not contest

this issue.” However, the legal classification of prior

convictions is not a factual proposition susceptible of admission

by a litigant. It is a legal proposition that must be determined by

a court in accordance with legal authority. See Gov’t Employees

Ins. Co. v. Benton, 859 F.2d 1147, 1153 n.11 (3d Cir. 1988)

(date of issue of insurance policy was a legal question which

could not be admitted by the parties).

6

requesting that his case be remanded for further consideration of

his withholding of removal, cancellation of removal, asylum,

and CAT claims. The District Court then transferred the habeas

petition to this Court pursuant to section 106(c) of the REAL ID

Act. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.

2005) (noting that, pursuant to section 106(c), “all habeas

petitions brought by aliens that were pending in the district

courts on the date the REAL ID Act became effective (May 11,

2005) are to be converted to petitions for review and transferred

to the appropriate court of appeals”).

We have jurisdiction over Garcia’s petition for review

pursuant to 8 U.S.C. § 1252(a)(2)(D). See Ng v. Att’y Gen., 436

F.3d 392, 394 (3d Cir. 2006) (stating that our jurisdiction

extends to “questions of law raised upon a petition for review,”

including petitions for review of removal orders based on

aggravated felony convictions). We exercise plenary review

over Garcia’s legal argument that he was not convicted of an

aggravated felony and his constitutional argument that the IJ and

BIA deprived him of due process of law. See Tran v. Gonzales,

414 F.3d 464, 467 (3d Cir. 2005).

II.

An alien who has been convicted of an aggravated felony

is ineligible for most types of relief provided by the INA, such

as cancellation of removal, see 8 U.S.C. § 1229(a)(3), asylum,

see id. § 1158(b)(2)(A)(ii), (b)(2)(B)(i), and withholding of

7

removal, see id. § 1231(b)(3)(B)(ii), (iv); 8 C.F.R. § 208.16.7 In

addition, a finding that an alien has committed an aggravated

felony also limits our review to constitutional and legal

questions. 8 U.S.C. § 1252(a)(2)(C), (D).

For purposes of drug-related offenses, an “aggravated

felony” means “illicit trafficking in a controlled substance (as

defined in section 802 of Title 21), including a drug trafficking

crime (as defined in section 924(c) of Title 18).” Id.

§ 1101(a)(43)(B). The question in this case is whether Garcia’s

conviction qualifies as an aggravated felony under this

provision.

We set forth the framework for making this determination

in Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002). In Gerbier,

we adopted the BIA’s two-route approach, pursuant to which a

state drug conviction may qualify as an aggravated felony under

either of two distinct routes. Id. at 313. Under the first, known

as the “illicit trafficking” route, a felony state drug conviction is

an aggravated felony if it contains a “trafficking element.” Id.

Under the second, the “hypothetical federal felony” route, a state

drug conviction, regardless of its classification, is an aggravated

7

Under the provisions relating to asylum and withholding

of removal, the alien is only ineligible for relief upon a

secondary finding that the aggravated felony constitutes a

“particularly serious crime.” Garcia does not challenge the IJ’s

determination that he was convicted of a particularly serious

crime, but rather only the underlying finding that his conviction

was for an aggravated felony.

8

felony if it would be punishable as a felony under the Federal

Controlled Substances Act. Id. at 299.

In applying the Gerbier approach, and in making

aggravated felony determinations in general, we presumptively

apply the “formal categorical approach.” Singh v. Ashcroft, 383

F.3d 144, 147 (3d Cir. 2004) (citing Taylor v. United States, 495

U.S. 575 (1990)). Under the categorical approach, we “‘must

look only to the statutory definitions of the prior offenses,’ and

may not ‘consider other evidence concerning the defendant’s

prior crimes,’ including, ‘the particular facts underlying [a]

conviction[ ].’” Id. at 147-48 (quoting Taylor, 495 U.S. at 600).

Certain circumstances, however, permit a departure from

the formal categorical approach. See id. at 148. In Singh, we

engaged in a detailed analysis of when such departure is

appropriate. In our analysis, we noted that aggravated felony

determinations always involve consideration of two statutes: the

federal statute enumerating particular categories of offenses that

constitute aggravated felonies (the “enumerating statute”), and

the criminal statute of conviction (the “statute of conviction”).

Id. at 161.

In certain circumstances, the enumerating statute itself

invites inquiry into the facts underlying the conviction at issue.

Id. The majority of provisions, however, involve relatively

unitary concepts, like forgery, burglary, and “crime of

violence,” and therefore do not invite inquiry into the underlying

facts. Id. at 161. For example, we have noted that “illicit

trafficking in a controlled substance” is similar to “crime of

9

violence” in that neither phrase invites departure from the

categorical approach. Id. at 156 n.4.

The language of the statute of conviction may also invite

departure from the formal categorical approach. Id. at 162.

Statutes phrased in the disjunctive may invite inquiry into the

record of conviction if it is unclear from the face of the statute

whether the conviction qualifies as an aggravated felony. See

id. Thus, “[w]here some variations meet the aggravated-felony

requisites and others do not, we have . . . allowed further inquiry

to see which variation was actually committed.” Id.

Based on these observations, we concluded that “[w]hile

the formal categorical approach of Taylor presumptively applies

in assessing whether an alien has been convicted of an

aggravated felony, in some cases the language of the particular

subsection of 8 U.S.C. § 1101(a)(43) at issue will invite inquiry

into the underlying facts of the case, and in some cases the

disjunctive phrasing of the statute of conviction will similarly

invite inquiry into the specifics of the conviction.” Id. at 148.

III.

Having discussed the relevant legal standards for

determining whether a conviction is for an aggravated felony,

we now turn to Garcia’s offense. Section 13(a)(30) of the

Pennsylvania Act provides as follows:

(a) The following acts and the causing thereof

within the Commonwealth are hereby prohibited:

10

....

(30) Except as authorized by this act, the

manufacture, delivery, or possession with intent

to manufacture or deliver, a controlled substance

by a person not registered under this act, or a

practitioner not registered or licensed by the

appropriate State board, or knowingly creating,

delivering or possessing with intent to deliver, a

counterfeit controlled substance.

35 Pa. Stat. Ann. § 780-113(a)(30).

As an initial matter, we address Garcia’s argument that

it is improper to consider the complaint issued in his

Pennsylvania criminal proceeding in determining whether the

statute of conviction permits departure from the formal

categorical approach under Singh. We disagree. In

Pennsylvania, a criminal complaint is not merely a police report.

It is the charging instrument, and in this case bears the

imprimatur of the district attorney. The filing of a criminal

complaint is sufficient to initiate criminal proceedings in the

Commonwealth and Pennsylvania law does not require the

subsequent filing of either an information or an indictment if a

plea of guilty or nolo contendere is entered. See Pa. R. Crim. P.

502; Commonwealth v. Mitchell, 372 A.2d 826, 829 (Pa. 1977)

(stating that criminal proceedings begin with presentation of the

complaint to the court). Since the record of conviction includes

the charging instrument, see, e.g., Singh, 383 F.3d at 163, and

the criminal complaint in Garcia’s case is the relevant charging

11

instrument, we may appropriately examine that complaint if

departure from the formal categorical approach is appropriate.

Turning to the merits, we must now determine whether

Garcia’s conviction pursuant to section 13(a)(30) of the Act is

an aggravated felony under either the illicit trafficking route or

the hypothetical federal felony route set forth in Gerbier. For

the reasons that follow, we conclude that Garcia’s state drug

conviction qualifies as an aggravated felony under the illicit

trafficking route.8

In order to qualify as an aggravated felony under the

illicit trafficking route, a drug conviction must satisfy two

requirements: (1) the offense must be a felony under the law of

the convicting sovereign, and (2) the offense must contain a

“trafficking element.” Gerbier, 280 F.3d at 313 (citing In re

Davis, 20 I. & N. Dec. 536 (BIA 1992)). A violation of section

13(a)(30) of the Act is a felony pursuant to 35 Pa. Stat. Ann. §

780-113(f). Therefore, the first requirement of the illicit

trafficking route is clearly satisfied.

The more interesting question is whether the state crime

contains a “trafficking element.” See Gerbier, 280 F.3d at 313.

In order for a state drug conviction to contain a trafficking

element, it must involve “the unlawful trading or dealing of a

controlled substance.” Id. at 305 (citing Davis, 20 I. & N. Dec.

at 541).

8

We therefore do not need to address the hypothetical

federal felony route.

12

The Pennsylvania statute under which Garcia was

convicted is disjunctive, and therefore departure from the formal

categorical approach is appropriate.9 See Singh, 383 F.3d at

162. Thus, we may examine the charging instrument to

determine whether Garcia’s conviction contains a trafficking

element. See id. at 163. The criminal complaint states: “the

defendant unlawfully sold and delivered a controlled substance,

to wit, marijuana to an undercover police officer, and at a latter

time on the same date the [defendant] possessed an additional 38

packets of marijuana (PNW: 2.0 grams) in a quantity and under

circumstances indicating intent to deliver . . . .” (App. at 43.)

9

As we stated in Singh, a statute need not be formally

divided into separate subsections in order to be considered

disjunctive for these purposes. Singh, 383 F.3d at 163. Rather,

the key is whether the provision is disjunctive in a relevant

sense. Here, the Pennsylvania statute describes three distinct

offenses: manufacture, delivery, and possession with the intent

to deliver or manufacture. Based on the broad scope of section

13(a)(30), it appears that the section may encompass conduct

that does not involve trading or dealing. In particular, it is not

clear that every violation of the manufacturing provision

involves trading or dealing. For example, there may be

circumstances in which a defendant simply manufactured drugs

for his own personal use. As a result, it is unclear from the face

of the statute whether a conviction under the section

automatically qualifies as an aggravated felony. Therefore, the

statute is disjunctive in a relevant sense and departure from the

categorical approach is appropriate under Singh. 383 F.3d at

162.

13

Thus, it is clear from the criminal complaint that Garcia pled

guilty to delivery and possession with the intent to deliver.

In Gerbier, we noted that “distribution, solicitation, [and]

possession with intent to distribute” suggest trading or dealing

in a controlled substance. 280 F.3d at 313. Since Garcia pled

guilty to delivery and possession with the intent to deliver, the

Pennsylvania equivalent of distribution and possession with the

intent to distribute, his conviction indicates that he was trading

or dealing in a controlled substance. See id. Moreover, the

criminal complaint clearly establishes that Garcia did in fact sell

drugs to an undercover officer. For these reasons, we conclude

that Garcia’s Pennsylvania drug conviction is an aggravated

felony under the illicit trafficking route of Gerbier.

IV.

Garcia’s Pennsylvania drug conviction is an aggravated

felony under the illicit trafficking route as enunciated in

Gerbier. Accordingly, we will deny the petition for review.10

10

Garcia also raises two due process arguments, which are

without merit. The first is that the IJ violated Garcia’s due

process rights by bullying him into admitting that he had been

convicted of an aggravated felony. This argument is not

supported by the record. The IJ did not badger Garcia into

admitting that he had been convicted of an aggravated felony –

instead he properly recognized that a layperson cannot fully

understand legal terms of art, found that Garcia had denied that

he had been convicted of an aggravated felony, and made the

determination as a matter of law. Moreover, the Attorney

14

General does not in any way seek to bind Garcia to his

purported admission. Therefore, this argument must fail.

The second due process argument raised by Garcia is that

the BIA violated his due process rights by failing to apply

relevant law relating to the aggravated felony determination.

Although the BIA’s discussion of the relevant law was terse, we

find no error in it, nor do we find a due process violation.

Therefore, this argument must fail as well.

15