On March 14, 2018, the Board of Immigration Appeals (BIA or Board) sustained the DHS appeal of an Immigration Judge (IJ) finding that respondent was not removable per INA §237(a)(2)(A)(ii) as one convicted of an aggravated felony drug trafficking crime under INA §101(a)(43)(B), granting his application for cancellation of removal. DHS argued that the IJ erroneously granted the application as respondent’s violation of New Jersey Statutes §2C:35-7 constitutes an aggravated felony per (a)(43)(B). Whether a state drug offense qualifies as an aggravated felony is a question of law reviewed de novo, held the opinion.
The BIA’s analysis began with the decision noting that, as an “aggravated felony” under §101(a)(43)(B) encompasses illicit trafficking in a controlled substance and the term “drug trafficking crime” means any felony punishable under the CSA, a state drug conviction constitutes an aggravated felony drug trafficking crime if it would be punishable under the CSA. Further, stated that the Board, because an offense can be an aggravated felony if it is punishable as a felony under any provision of the CSA, DHS correctly argued on appeal that the crime defined by §2C:35-7 “is punishable as a felony under 21 U.S.C. §841(a)(1)(2012), which is also an appropriate Federal analogue to the State statute”.
In turn, the decision agreed with DHS that this approach is allowable and that §884(a)(1) is “an appropriate Federal analogue” to §2C:35-7, finding that the IJ’s conclusion that respondent’s state offense was not an aggravated felony drug trafficking crime because it would not be punished as a felony under 21 U.S.C. §860(2012) was “unreasonably limited”. The Board further concluded that the only difference between §2C:35-7 and §841 is that the New Jersey offense criminalizes a narrower subset of controlled substance offenses within the border universe of those encompassed by §841.
Clearly, held the Board, finding that §860 is the only appropriate analogue to §2C:35-7 would lead to absurd results, i.e., a holding that possession of cocaine with the intent to dispense it is a §101(a)(43)(B) aggravated felony but the same crime committed within proximity to a school is not. The BIA therefore concluded that respondent’s conviction for possession with intent to distribute cocaine within 1,000 feet of school property is an aggravated felony drug trafficking crime because it satisfies all the elements of §841(a)(1) and would be punishable as a felony under that provision. The Government’s appeal was sustained and the IJ’s cancellation grant vacated; respondent was ordered removed.
In a concurring opinion, Board Member O’Connor noted what he termed “the absurdity of the legal manipulations we must go through to reach this common sense conclusion, which seems to be a reoccurring sentiment expressed by adjudicators everywhere”. He found that the “proper inquiry” was whether all violations of §2C:35-7 are punished as felonies under the CSA as a whole. By looking at the law in its entirety, he wrote, “we see that all violations of section 2C:35-7 would be punished as felonies under that Federal law”. Matter of Rosa, 27 I&N Dec. 228 (BIA 2018).