noting that the court’s references to the federal controlled substance schedules concern the “version of the federal drug schedules in effect at the time of Collymore’s conviction”
How later courts described this case
- noting that the court’s references to the federal controlled substance schedules concern the “version of the federal drug schedules in effect at the time of Collymore’s conviction”
- noting that Collymore’s statute of conviction and the CSA Schedule had been amended, but comparing state and federal controlled substances schedules in effect “at the time of Collymore’s conviction” (emphasis added)
Written by the judges who cited it.
The opinion
15‐582
Collymore v. Lynch
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term, 2015
(Argued: June 15, 2016 Decided: July 8, 2016)
Docket No. 15‐582
____________
ROMMEL RICARDO COLLYMORE,
Petitioner,
–v.–
LORETTA E. LYNCH, United States Attorney General,
Respondent.
______________
Before:
STRAUB, WESLEY, and LIVINGSTON, Circuit Judges.
______________
Petitioner Rommel Ricardo Collymore seeks review of a
January 30, 2015 order of the Board of Immigration Appeals
affirming a decision of an immigration judge that found
Collymore removable as an alien pursuant to 8 U.S.C.
§ 1227(a)(2)(B)(i) for a prior conviction under 35 Pa. Stat. Ann.
§ 780‐113(a)(30) (1997), which related to a federal controlled
substance. Applying the categorical approach, we conclude that
Collymore’s conviction under the Pennsylvania statute, as it
stood in 1997, is a controlled substance offense and DISMISS
the petition for review for lack of jurisdiction to review the
removability order.
______________
LEMAY DIAZ and ADINO BARBARITO, Law Students
(Jonathan Romberg, Esq.; Christopher Capitanelli and Angelo
Cerimele, Law Students, on the brief), Seton Hall University
School of Law Center for Social Justice, Newark, NJ, for
Petitioner.1
JASON WISECUP, Trial Attorney, Office of Immigration
Litigation, Civil Division (Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Civil Division, and John W.
Blakeley, Assistant Director, Office of Immigration Litigation, on
the brief), United States Department of Justice, Washington, D.C.,
for Respondent.
1 The law students appeared pursuant to Local Rule 46.1(e). We wish
to express our gratitude to the Seton Hall University School of Law
Center for Social Justice for its pro bono legal representation and able
handling of this matter.
2
______________
WESLEY, Circuit Judge:
Petitioner Rommel Ricardo Collymore, a native and
citizen of Barbados, and lawful permanent resident of the United
States, seeks review of a January 30, 2015 final order of the Board
of Immigration Appeals (“BIA”) affirming a September 23, 2014
decision of an immigration judge (“IJ”), which denied
Collymore’s application for cancellation of removal. See In re
Rommel Ricardo Collymore, No. A041 730 196, 2015 WL 1208086
(B.I.A. Jan. 30, 2015), aff’g No. A041 730 196 (Immig. Ct. N.Y. City
Sept. 23, 2014). Collymore was found deportable under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) on the basis of a prior conviction in 1997
under Title 35 of the Pennsylvania Controlled Substance, Drug,
Device and Cosmetic Act § 780‐113(a)(30) (1997), which was
determined to be a conviction that “relat[ed] to a [federal]
controlled substance.” See 8 U.S.C. § 1182(a)(2)(A)(i)(II).
Collymore’s petition challenges that determination. For the
reasons set forth below, we DISMISS the petition.
BACKGROUND
Collymore received lawful permanent‐resident status in
the United States in April 1989. On December 8, 1997, Collymore
was convicted of a violation of 35 Pa. Stat. Ann. § 780‐113(a)(30)
(1997)2 in the Court of Common Pleas of Northampton County,
Pennsylvania. On August 7, 2008, upon his return from a trip to
Barbados, Collymore applied for admission as a returning lawful
permanent resident. Thereafter, on August 3, 2010, the
2 This statute was amended on January 24, 2000. Each reference
hereinafter to § 780‐113(a)(30) refers to the 1997 version of the statute
under which Collymore was convicted.
3
Department of Homeland Security served Collymore with a
Notice to Appear in immigration proceedings, charging him
with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien
convicted of a crime involving moral turpitude and 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) as an alien convicted of a controlled
substance offense.
During the removal proceeding, Collymore admitted the
factual allegations concerning his criminal conviction but
deferred to the IJ as to removability. On the basis of Collymore’s
admissions, the IJ sustained both charges, and Collymore
immediately sought cancellation of removal as a lawful
permanent resident. The IJ denied Collymore’s application for
relief but afforded him additional time to pursue post‐conviction
relief in Pennsylvania state court related to his 1997 conviction.3
Collymore subsequently moved to terminate the removal
proceedings on the basis that his conviction did not render him
removable because his conviction was not categorically a
controlled substance offense or a crime involving moral
turpitude.
Thereafter, the IJ denied Collymore’s motion to terminate
and ordered him removed to Barbados. Specifically, the IJ
determined that § 780‐113(a)(30)—the statute under which
Collymore was convicted—was not categorically a crime related
to a federal controlled substance because, in the IJ’s view, the
Pennsylvania statute proscribed conduct that would not
necessarily constitute a controlled substance offense under
federal law. The IJ then relied on a Third Circuit decision, United
States v. Abbott, 748 F.3d 154 (3d Cir. 2014), to conclude that the
3 According to Collymore, his motion to vacate his 1997 conviction
remains pending in Pennsylvania state court.
4
Pennsylvania statute was divisible and employed the modified
categorical approach, in which it examined Collymore’s record
of conviction to determine whether his conviction was for a
controlled substance offense recognized by federal law. The IJ
observed, based on a docket transcript certified by the
Pennsylvania state court, that Collymore’s conviction related to
cocaine, which is listed as a controlled substance under the
Controlled Substances Act’s (“CSA”) schedules of controlled
substances. See 21 U.S.C. § 812 (1997).4 Accordingly, the IJ
concluded that Collymore was inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), and further inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) because an offense involving the possession
of a controlled substance necessarily constituted a crime
involving moral turpitude.
Collymore appealed to the BIA, which affirmed the IJ’s
decision and dismissed the appeal. Like the IJ, the BIA
determined that Collymore’s conviction under 35 Pa. Stat. Ann.
§ 780‐113(a)(30) was not a categorical match to 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), but that the Pennsylvania statute was
divisible under Abbott. Like the IJ, the BIA found that the record
reflected that Collymore’s conviction involved cocaine, a federal
controlled substance, and that he was consequently removable
under § 1182(a)(2)(A)(i)(II), but the BIA did not reach the
question of whether Collymore’s conviction also qualified as a
crime involving moral turpitude subject to removability under
§ 1182(a)(2)(A)(i)(I).
4 The federal controlled substances schedules were amended on July 9,
2012. Each reference hereinafter to § 812 refers to the 1997 version of
the federal drug schedules in effect at the time of Collymore’s
conviction.
5
Collymore filed a timely petition for review in this Court,
challenging the determination of the BIA that a conviction under
35 Pa. Stat. Ann. § 780‐113(a)(30) (1997) constitutes a violation of
a law relating to a federal controlled substance for purposes of
removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II). Because we
conclude that it does, we dismiss the petition.
DISCUSSION
“Any alien who at any time after admission has been
convicted of a violation of . . . any law . . . of a State, . . . relating
to a controlled substance . . . is deportable” upon order of the
Attorney General of the United States. 8 U.S.C. § 1227(a)(2)(B)(i).
Although we lack jurisdiction to review “any final order of
removal against an alien who is removable by reason of having
committed a [federal controlled substance] offense,” 8 U.S.C.
§ 1252(a)(2)(C), “[w]e retain jurisdiction . . . to review the legal
question . . . whether a conviction underlying an order of
removal, or the denial of relief from an order of removal,
constitutes a[] [controlled substance offense],” Higgins v. Holder,
677 F.3d 97, 100 (2d Cir. 2012) (per curiam). “The inquiry
determines our jurisdiction: [i]f [Collymore’s] conviction is a[]
[controlled substance offense], we must dismiss the petition for
lack of jurisdiction; if not, we may exercise jurisdiction and
vacate the order of removal.” Oouch v. U.S. Dep’t of Homeland
Sec., 633 F.3d 119, 121 (2d Cir. 2011). Thus, “the jurisdictional
issue merges with the merits, and we are therefore required to
consider [Collymore’s] substantive argument”: that his
Pennsylvania conviction is not a controlled substance offense
under the Immigration and Nationality Act (“INA”). Higgins,
677 F.3d at 100.
6
I. LEGAL FRAMEWORK
In assessing whether a conviction under 35 Pa. Stat. Ann.
§ 780‐113(a)(30) constitutes a controlled substance offense, “we
use a categorical approach that looks to the elements of the penal
statute rather than the particulars of the alien’s conduct.” Oouch,
633 F.3d at 122. In doing so, we must determine “whether ‘every
set of facts violating [the state] statute’ satisfies the criteria for
removability” under the INA, mindful that “only the minimum
criminal conduct necessary for a conviction is relevant.” Id.
(quoting Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir. 2004)). If,
however, the Pennsylvania criminal statute is “divisible” into
qualifying and non‐qualifying removable offenses, we proceed
“under a modified categorical approach to ascertain which class
of criminal act furnished the basis for the defendant’s
conviction.” Id. Where the statute is neither categorical nor
divisible, though, “our inquiry is complete.” Id.
II. COLLYMORE’S CONVICTION IS CATEGORICALLY A
CONVICTION FOR A CONTROLLED SUBSTANCE OFFENSE5
On appeal, the parties maintain, as they did before the
agency below, that Collymore’s 1997 conviction under § 780‐
113(a)(30) does not categorically constitute a controlled
substance offense because the Pennsylvania statute under which
Collymore was convicted is not a categorical match to the
grounds of removability under § 1182(a)(2)(A)(i)(II). That is,
according to the parties, the IJ and BIA properly declined to
apply the categorical approach because, in their view, some of
the substances covered by the Pennsylvania law do not
5 Because “the BIA has no interpretive responsibility over a state
criminal statute, we review de novo its interpretation” of 35 Pa. Stat.
Ann. § 780‐113(a)(30) (1997). See Oouch, 633 F.3d at 122.
7
necessarily appear in the federal schedules of controlled
substances. In their view, this means that the Pennsylvania
statute criminalizes controlled substances that do not qualify as
bases for removability under the INA, thereby precluding
removability under the categorical approach.
We disagree; the crime for which Collymore was
convicted in 1997 under § 780‐113(a)(30) is categorically a federal
controlled substance offense for purposes of the INA, resulting
in Collymore’s removability.
The 1997 version of the Pennsylvania statute in question
prohibits the following acts:
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 noted, the INA treats as
deportable “any alien convicted of . . . a violation of . . . any law
. . . of a State . . . relating to a controlled substance” as defined by
the CSA. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). The CSA makes it
unlawful for any person knowingly or
intentionally—(1) to manufacture,
distribute, or dispense, or possess with
intent to manufacture, distribute, or
dispense, a controlled substance; or (2) to
create, distribute, or dispense, or possess
8
with intent to distribute or dispense, a
counterfeit substance.
21 U.S.C. § 841(a)(1)–(2).
Federal and Pennsylvania law confer similar meaning to
the terms “counterfeit substance” (as used by the CSA) and
“counterfeit controlled substance” (as used in the Pennsylvania
statute). The CSA defines the term “controlled substance” to
mean “a drug or other substance, or immediate precursor,
included in schedule I, II, III, IV, or V” of the federal schedules of
controlled substances, id. § 802(6), and describes a “counterfeit
substance” as
a controlled substance which, or the
container or labeling of which, without
authorization, bears the trademark, trade
name, or other identifying mark, imprint,
number, or device, or any likeness thereof,
of a manufacturer, distributor, or dispenser
other than the person or persons who in fact
manufactured, distributed, or dispensed
such substance and which thereby falsely
purports or is represented to be the product
of, or to have been distributed by, such
other manufacturer, distributor, or
dispenser,
id. § 802(7). Although Pennsylvania law provides no definition
for the term “counterfeit controlled substance,” it does contain
separate definitions for the terms “counterfeit” and “controlled
substance.” It defines the term “controlled substance” to mean
“a drug, substance, or immediate precursor” listed in the
Pennsylvania schedules of controlled substances and defines the
term “counterfeit” to mean
9
a controlled substance, other drug, device or
cosmetic which, or the container or labeling
of which, without authorization, bears the
trademark, trade name, or other identifying
mark, imprint, number, or device, or any
likeness thereof, of a manufacturer,
distributor, or dispenser other than the
person or persons who in fact
manufactured, distributed, or dispensed
such substance and which thereby is falsely
purported or represented to be the product
of, or to have been distributed by, such
other manufacturer, distributor, or
dispenser.
35 Pa. Stat. Ann. § 780‐102. The BIA affirmed the IJ’s conclusion
that, because the Pennsylvania law also covered conduct
involving “other drug[s]” and “cosmetic[s]” that were not
necessarily prohibited federally by the CSA, id., the
Pennsylvania statute was broader than its federal counterpart
and, as such, a conviction under § 780‐113(a)(30) did not
categorically constitute a crime relating to a federal controlled
substance. That interpretation of the statute, however, is at odds
with our duty to consider the most natural reading of the text
and the context of the statute. See Pettus v. Morgenthau, 554 F.3d
293, 297 (2d Cir. 2009).
“[W]hen construing the plain text of a statutory
enactment, we do not construe each phrase literally or in
isolation. Rather, we attempt to ascertain how a reasonable
reader would understand the statutory text, considered as a
whole.” Id. When the terms “counterfeit” and “controlled
substance” are taken in isolation (as advocated by the IJ and
BIA), the Pennsylvania statute’s definition of the term
10
“counterfeit controlled substance” might be read more broadly.
Under the most natural reading of these terms taken together,
however, in the context of § 780‐113(a)(30), the term
“counterfeit” modifies the term “controlled substance,” such that
a “counterfeit controlled substance” encompasses only a
controlled substance that, consistent with the definition, is
mislabeled, such that it falsely purports or represents to be the
product of a manufacturer, distributer, or dispenser other than
the person or persons who in fact manufactured, distributed, or
dispensed such substance. See 35 Pa. Stat. Ann. § 780‐102.
The Superior Court of Pennsylvania has reached the same
conclusion regarding the range of conduct proscribed by § 780‐
113(a)(30). See Commonwealth v. Mohamud, 15 A.3d 80, 89 & n.23
(Pa. Super. Ct. 2010) (“A counterfeit controlled substance is
defined in the Act as a controlled substance that is mislabeled
such that [it] falsely purports to [be] the product of a
manufacturer other than the manufacturer who created it.”
(citing 35 Pa. Stat. Ann. § 780‐102)). This reading makes sense
given that the focus of § 780‐113(a)(30) is on controlled
substances, not on substances that the Pennsylvania legislature
has declined to criminalize under the Pennsylvania controlled
substances schedules. Thus, the text of the Pennsylvania statute
does not suggest that it might cast a wider net than that of the
CSA.
Moreover, a comparison of the Pennsylvania and federal
controlled substances schedules in effect in 1997, at the time of
Collymore’s conviction, cf. Mellouli v. Lynch, 135 S. Ct. 1980,
1987–88 (2015) (explaining that we are to compare the drug
schedules that were enacted “[a]t the time of [the petitioner’s]
conviction”), reveals that the Pennsylvania schedules are not
11
broader than the federal schedules, as they criminalize the same
substances.6 Compare 35 Pa. Stat. Ann. § 780‐104, with 21 U.S.C.
§ 812. That is, the 1997 version of the Pennsylvania statute under
which Collymore was convicted is not categorically broader than
the federal definition because all of the substances proscribed by
the Pennsylvania law are also listed in the federal schedules of
controlled substances in 21 U.S.C. § 802. Indeed, the Third
Circuit has previously observed the same in a similar case under
the INA. See Clarke v. Ashcroft, 100 F. App’x 884, 886 (3d Cir.
2004) (“The BIA found that all the illicit substances covered by
the Pennsylvania statute are listed in the schedule of controlled
substances in 21 U.S.C. § 802. It follows that any substance [the
petitioner] was convicted of delivering under the Pennsylvania
statute necessarily constitutes a violation of the Federal
Controlled Substance Act referenced in INA § 241(a)(2)(B)(i).”).
Notably, neither the IJ nor BIA took note of the Third
Circuit’s decision in Clarke. Rather, they relied instead on a more
recent decision from the Third Circuit in United States v. Abbott,
748 F.3d 154 (3d Cir. 2014), for the proposition that the
categorical approach does not apply to § 780‐113(a)(30). But
Abbott is readily distinguishable from the facts presently before
6 In urging us that the Pennsylvania controlled substance schedules are
broader than the federal schedules, Collymore argues that the
Pennsylvania schedules list substances, such as peyote and salvia
divinorum, that were not listed in the federal schedules. A review of
the 1997 Pennsylvania and federal controlled substances schedules,
however, reveals that neither statute prohibited salvia divinorum,
compare 35 Pa. Stat. Ann. § 780‐104, with 21 U.S.C. § 812, and both
prohibited peyote, compare 35 Pa. Stat. Ann. § 780‐104(iii)(11), with
21 U.S.C. § 812(c)(12). Indeed, in a post‐argument letter to this Court,
Collymore conceded this point.
12
us. Abbott involved a criminal sentencing appeal where the Third
Circuit was tasked with determining whether § 780‐113(a)(30)
was divisible under the modified categorical approach for
purposes of determining whether convictions under the
Pennsylvania statute qualified as predicate offenses under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). See
748 F.3d at 156. Critical to that inquiry was the type of controlled
substance at issue because the prescribed range of penalties
imposed for violations of § 780‐113(a)(30) varied based on its
character. The identity of the drug involved in a defendant’s
conviction under the Pennsylvania statute, the Abbott Court
determined, was therefore an element of the crime that had to be
proven beyond a reasonable doubt. Id. at 159. Accordingly, the
Third Circuit concluded that the statute included several
alternative elements and was therefore divisible.7 Id.
Unlike Abbott, however, the length of sentence in a
criminal defendant’s prior conviction has no bearing on the
inquiry presently before us in an immigration removal
proceeding. Moreover, Abbott concerned an assessment of the
defendant’s prior conviction against the ACCA, and therefore
lends no support to Collymore’s case because it did not involve a
comparison between § 780‐114(a)(30) and the CSA. The relevant
question before us is whether the Pennsylvania and federal
controlled substance and counterfeit controlled substance
definitions categorically proscribe the same controlled
substances. We have no difficulty in concluding that they do.
7 The Supreme Court’s recent decision in Mathis v. United States, No.
15‐6092, 2016 WL 3434400, at *8 (U.S. June 23, 2016), does not purport
to overrule or alter Abbott, nor does it have any bearing on the
Pennsylvania statute at issue in this case.
13
Because we hold that Collymore’s conviction under § 780‐
113(a)(30) was categorically a controlled substance offense under
the INA at the time of his conviction in 1997, we need not reach
the question of divisibility or apply a modified categorical
approach in our analysis. See Costa v. Holder, 611 F.3d 110, 115
(2d Cir. 2010) (per curiam).
CONCLUSION
We have considered the parties’ remaining arguments
and find them to be without merit. Because a conviction under
35 Pa. Stat. Ann. § 780‐113(a)(30) (1997) is categorically a
conviction under a law relating to a federal controlled substance
under 8 U.S.C. § 1227(a)(2)(B)(i), we lack jurisdiction to review
the removability order. See 8 U.S.C. § 1252(a)(2)(C). Accordingly,
the petition for review is DISMISSED.
14