Argued before Merits Panel on October 1, 2012
Reargued En Banc May 29, 3013
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
Craig R. Shagin [ARGUED] The Shagin Law Group The Inns of St. Jude Tracey M. Hubbard TMG Law Offices 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 Attorneys for Respondent
Before: McKEE, Chief Judge, SCIRICA, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, Jr., VANASKIE, SHWARTZ and GREENBERG, Circuit Judges.
FUENTES, Circuit Judge, with whom McKEE, Chief Judge, and SCIRICA, RENDELL, AMBRO, SMITH, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, Jr., VANASKIE, and SHWARTZ, Circuit Judges join:
FUENTES, Circuit Judge
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 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
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.
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 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).
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 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. The parties agree that, at the time of 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.
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 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 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 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"? The Department argues that there is no need to show what substance was involved or whether it was 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 ...