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Evanson v. Attorney General of the United States

December 19, 2008

WISTER EVANSON PETITIONER
v.
ATTORNEY GENERAL OF THE UNITED STATES



Petition for Review of an Order of the Board of Immigration Appeals (No. A 37-592-428).

The opinion of the court was delivered by: Fuentes, Circuit Judge

PRECEDENTIAL

Argued September 11, 2008

Before: SLOVITER, FUENTES, and ALDISERT, Circuit Judges.

OPINION OF THE COURT

Wister Evanson, a native and citizen of Trinidad and Tobago, pled guilty to possession of marijuana with intent to deliver and criminal conspiracy in violation of Pennsylvania law. After the state judge sentenced him to probation and community service, the Department of Homeland Security ("DHS") commenced removal proceedings. The Immigration Judge ("IJ") found that Evanson's offense did not constitute an aggravated felony and granted cancellation of removal. However, based on information found only in a sentencing document, the Board of Immigration Appeals ("BIA") found that the offense constituted an aggravated felony and ordered removal. For the reasons that follow, we conclude that the BIA erred in failing to apply the modified categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), and therefore erred when it considered Evanson's sentencing document to determine whether he had been convicted of an aggravated felony. We will thus grant the Petition and remand for further proceedings.

I.

Wister Evanson, 42, was admitted to the United States as a permanent resident in December of 1981. In March 2005, Evanson was a passenger in a car owned and driven by Stephanie Ofori, his girlfriend, when they were hit by a drunk driver.*fn1 Police responding to the accident found marijuana in the car and arrested Evanson. According to the Affidavit of Probable Cause attached to the Police Criminal Complaint, the marijuana was in a large black trash bag found on the back seat of the car and was divided into one large zip-lock bag, two medium-sized zip-lock bags, and one-hundred small zip-lock bags. The Criminal Complaint also alleged that a marijuana cigarette was found in Evanson's pocket.

Evanson pled guilty in Pennsylvania state court to a criminal information charging him with committing a controlled substance offense in violation of 35 Pa. Stat. Ann. § 780-113(a)(30), and criminal conspiracy to commit that offense in violation of 18 Pa. Stat. Ann. § 903. 35 Pa. Stat. Ann. § 780-113 states:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:

(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.

Mirroring the language of the statute, the information alleged that Evanson "did manufacture, deliver, or possess with an intent to manufacture or deliver a controlled substance(s), to wit: MARIJUANA." (Administrative Record (A.R.) 238.) These counts of the information did not contain any additional detail about the offenses.

Evanson was sentenced to thirty-six months' probation and community service. The judgment of sentence stated that Evanson was charged with "intent to deliver or manufacture marijuana .4841 lbs drug schedule I." (A.R. 252.)

Following his sentencing, DHS commenced removal proceedings against Evanson. Specifically, DHS charged Evanson with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that "[an] alien who is convicted of an aggravated felony at any time after admission is deportable," and under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that 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 State, the United States, or a foreign country relating to a controlled substance (as ...


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