Category Archives: Crimes

BIA Holds That The Offense Of Sponsoring Or Exhibiting An Animal In An Animal Fighting Venture Is A Categorical Crime Invoking Moral Turpitude

BIA Holds That The Offense Of Sponsoring Or Exhibiting An Animal In An Animal Fighting Venture, In Violation of 7 U.S.C § 2156(a)(1), Is A Categorical Crime Invoking Moral Turpitude. An Applicant Who Has Been So Convicted Is Ineligible For Cancellation of Removal Per INA § 240A(b)(1)(C) For Having “Been Convicted Of An Offense Under” INA § 237(a)(2)(A)(i), Irrespective Of Both the General “Admission” Requirement in § 237(a) And The Temporal (Within 5 Years Of Admission) Requirement In § 237(a)(2)(A)(i)(I). Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013) and Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), Reaffirmed.

On August 6, 2018, the Board of Immigration Appeals (BIA or Board) issued a second precedent decision in this matter, having previously dismissed respondent’s appeal in Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013), holding that his conviction for sponsoring or exhibiting an animal in an animal fighting venture per 7 U.S.C § 2156(a)(1) is a categorical crime involving moral turpitude (CIMT), which qualifies as an “offense under” INA § 237(a)(2)(A)(i), rendering him ineligible for cancellation of removal under INA § 240A(b)(1)(C). The case had gone up to the Ninth Circuit Court of Appeals, which remanded it to the BIA for further consideration of whether § 2156(a)(1) qualifies as a CIMT in light of its statement in Nunez v. Holder, 594 F. 3d 1124, 1131 (9th Cir. 2010) that “non-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim.” (The circuit court had noted that the language of § 2156(a)(1) pertaining to “harm to chickens” appeared, at first blush, “outside the normal realm” of a CIMT.) The Board thus used the instant opinion to clarify its rationale for concluding that moral turpitude “necessarily inheres in all violations of this statute.”

In its initial analysis regarding whether a conviction is a CIMT, the decision stated that the BIA employs the “categorical approach,” comparing the elements of an offense to those of the generic definition to determine if there is a categorical match. As a predicate to this determination, the opinion had already stated in a footnote that while respondent’s conviction is not for an “offense under” § 212(a)(2)(A)(i)(I) because it qualifies for § 212(a)(2)(A)(i)(II)’s petty offense exception, he is still ineligible for cancellation as one convicted of an “offense under” § 237(a)(2)(A)(i), per Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). Citing prior precedent, the Board reiterated that to constitute a CIMT, an offense must have two essential elements: 1) a culpable mental state and 2) reprehensible conduct. The decision then explained that the Ninth Circuit defers to the manner in which the BIA applies this definition, through case-by-case adjudication, to assess the “character, gravity, and moral significance” of the conduct in question; however, noted the opinion, such deference “has not been universal” as the Ninth Circuit employs its own definition as well, holding that CIMTs fall into two categories: 1) those involving fraud and 2) those involving grave acts of baseness or depravity. Further, the Ninth Circuit has found that offenses that do not involve fraud but fall into the second category almost always involve “an intent to injure, an injury to person, or an act affecting a protected class of victims.” The instant remand, found the Board, was to consider whether this conviction, which does not involve fraud, involves one of these three circumstances.

In a densely-reasoned explication of this issue, the decision then stated that while “these principles may serve as useful guideposts,” it has never limited the determination of whether an offense is a CIMT to these categories because the definition of moral turpitude is broader; in fact, the Ninth Circuit has found some non-fraud offenses to be CIMTs, even in the absence of one of the three above-enumerated circumstances. And, found the Board, if its understanding in this regard is incorrect, it respectfully disagrees with the federal court’s approach. For example, prostitution and incest are acts “so contrary to the standards of a civilized society as to be morally reprehensible.” Such behavior, held the BIA, is morally repugnant even if relating to “sexual acts committed by consenting adults.” The opinion found the instant offense “to be of a similar nature.” Thus, concluded the Board, in assessing whether an offense that does not include fraud can be a CIMT, the absence of one of the three circumstances is not determinative and reaffirmed its original holding that the crime involves moral turpitude because the conduct involved celebrates animal suffering for human enjoyment, thereby transgressing “the socially accepted rules of morality” and breaching a duty owed society.

Next, in responding to certain concerns of the respondent and amicus, the decision stated that the BIA was not persuaded that one could be convicted under § 2156(a)(1) merely by paying a fee to attend an animal fight or being a vendor at such an event – direct and indirect financial contributions do not fall under the statute. Therefore, concluded the Board, the offense is categorically a CIMT.

Turning to its analysis of the “offense under” § 237(a)(2) language of the INA, the opinion noted that cancellation of removal applicants must prove they have not been convicted of an offense under §§ 212(a)(2), 237(a)(2), or 237 (a)(3) so that the issue here is whether the reference to an “offense under” one of these sections incorporates all or part of those sections or if Congress intended some other interpretation. (Per the Board, the Ninth Circuit had found the statutory text “ambiguous on this point.”) The decision first noted that the removal grounds of INA §§ 237(a)(2) and (3) are generally not applicable to those who entered the U.S. without inspection and have not subsequently been subjected to an act that would constitute an “admission”; they only apply to those “admitted to the United States.” Thus, the question at bar becomes, per the BIA, what aspects of § 237(a)(2) are retained by virtue of the “offense under” language found in § 240A(b)(1)(C).

In explaining its reasoning, the Board expressly disagreed with the Ninth Circuit’s statement that it is plausible to read § 240A(b)(1)(C) as incorporating all of § 237(a)(2)(A)(i) but modifying the “within five years” provision as counting from an applicant’s “entry” instead of “admission,” giving two reasons: 1) one of the overriding purposes of the IIRIRA, the 1996 revision to the INA, was to replace the term “entry” with “admission” so that a person who entered without inspection would be subject to the grounds of inadmissibility, not deportability and Congress intended the two terms to have different meanings and 2) interpreting the cross-reference to an “offense under” 237(a)(2) as modifying the meaning of “admission” throughout that subsection is, in the view of the panel, “outside the scope of any ambiguity that exists in” 240A(b)(1)(C).

The BIA found that the “most reasonable reading” of § 240A(b)(1)(C) is that it cross-references “a selected segment-the ‘offense’-of a collective whole,” e.g., the corresponding removability ground of § 237(a)(2) or (3); in this manner, concluded the decision, the meaning of the two sections “remains constant,” with only the “offense” characteristics in each being operative. Later in the opinion, raising a similar interpretory argument, the Board found it unreasonable to infer that Congress intended to require that a cancellation applicant be “deportable” for purposes of relief, yet not “deportable” in the sense “that the term is normally understood.” In sum, held the BIA, the “language and context” of 240A(b)(1)(C) in its entirety compels the conclusion that the “offense under” language is “a limited cross-reference” that incorporates “only the offense-specific characteristics of the cross-referenced sections.”

As such, Matter of Cortez, which held that the plain language of § 240A(b)(1)(C) provides that only the offense-specific characteristics contained in the cross-referenced sections of the INA are applicable in determining whether one has been convicted of an “offense under” one of those sections, was reaffirmed and the Board continued to conclude that neither the “in and admitted” requirement of § 237(a) nor the temporal “admission” requirements “of the specific deportability grounds” are applicable in determining if § 240A(b)(1)(C) disqualifies an applicant from cancellation relief by virtue of an “offense under” 237(a)(2) or (3). The BIA reaffirmed its prior decision denying respondent cancellation, finding his conviction to be for a CIMT which carried a potential sentence of imprisonment for 1 year and dismissed the appeal. Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018).

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BIA Holds That The Term “Prostitution” Is Not Limited to Crimes Involving Sexual Intercourse

BIA Holds That The Term “Prostitution” As Used In INA §101(a)(43)(K)(i), Which Provides That An Offense Relating To Owning, Controlling, Managing, or Supervising A Prostitution Business Is An Aggravated Felony, Is Not Limited to Crimes Involving Sexual Intercourse But Is Defined As Engaging In, Or Agreeing Or Offering To Engage In, Sexual Conduct For Anything Of Value. Therefore The Offense Of Keeping A Place Of Prostitution In Violation of §944.34(1) Of The Wisconsin Statutes Is Categorically An Aggravated Felony Per §101(a)(43)(K)(i).

On May 21, 2018, the Board of Immigration Appeals (BIA or Board), in a 2-1 precedent decision, upheld a DHS appeal of an Immigration Judge (IJ) order terminating proceedings and finding respondent not removable as an aggravated felon under INA §101(a)(43)(K)(i). Respondent, a lawful permanent resident, had been convicted of violating Wisconsin Statutes §944.34(1), which provides that one who intentionally keeps a place of prostitution is guilty of a felony. The IJ had relied on prior BIA precedent, Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008), which found that for purposes of INA §212(a)(2)(I)(ii), the term “prostitution” means “engaging in promiscuous sexual intercourse for hire,” a definition he found limited the term to acts involving sexual intercourse. Because the Wisconsin law included additional sex acts in its definition of “prostitution,” the IJ concluded it is overbroad relative to §101(a)(43)(K)(i), citing Second Circuit case law.

In its initial analysis, the Board noted that the DHS appeal “pointed out that only a handful of States limited the definition of prostitution to acts involving sexual intercourse” in 1994, when this aggravated felony section was enacted; the majority of States employed a definition including broad terms and/or listed multiple specific sex acts. The decision thus disagreed with the IJ and the case law he relied upon, claiming that the term “prostitution” as used in §101(a)(43)(K)(i) “does not necessarily have the same meaning as it does in the inadmissibility provision” at INA §212(a)(2)(D)(ii). Additionally, noted the BIA, Congress may have intended the term as used in §212(a) to have a “narrower scope” than when used in §101(a)(43)(K)(i), in that the former applies to those potential entrants who engage in prostitution or procure or import prostitutes while the latter applies to those convicted of an offense that relates to the operation of “a prostitution business.”

The Board then held that §101(a)(43)(K)(i) “should not be so narrowly construed as to exclude most States’ statutes proscribing the operation of a prostitution business from serving as predicates for removal.” The opinion went on to announce that “prostitution” is not generally limited to offenses involving sexual intercourse but is now defined as “engaging in, or agreeing or offering to engage in sexual conduct for anything of value.” As §101(a)(43)(K)(i) does not proscribe merely engaging in prostitution, it necessarily reaches “offenses of a commercial nature” relating to the owning, controlling, managing or supervising of a prostitution business. Therefore, concluded the Board, respondent’s conviction is categorically for an aggravated felony and she is removable. The decision of the IJ was vacated and the record remanded for further proceedings and entry of a new decision.

In a dissenting opinion, Board Member Cole agreed with the IJ that respondent’s conviction is not for an aggravated felony “under the existing Federal definition” of prostitution. She noted that Gonzalez-Zoquiapan limits “prostitution” to acts involving sexual intercourse. Where the majority found that the difference between the inadmissibility and aggravated felony removability grounds supported its conclusion that a different definition of prostitution is unwarranted here, Board Member Cole found this distinction to be insufficient to create a different definition for purposes of §101(a)(43)(K)(i). Moreover, she concluded, the IJ properly applied the canon of statutory interpretation employed in the Seventh Circuit (where this case arose), namely, the presumption that identical words used in different parts of the same statute should carry the same meaning – a rule followed by the Second Circuit as well. The dissent agreed with respondent that Congress should provide any new definition of “prostitution” because “neither the legislative history of the term nor the aggravated felony ground” supports the new definition. Matter of Ding, 27 I&N Dec. 295 (BIA 2018).

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BIA Holds That Conviction For Stalking Under California Penal Code §646.9 Is Not “A Crime Of Stalking” Per INA §237(A)(2)(E)(i), Overruling Matter Of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012).

On April 20, 2018, the Board of Immigrations (BIA or Board), in yet another lengthy and densely-reasoned decision, ruling on remand from the Ninth Circuit Court Of Appeals, sustained a respondent’s appeal and terminated removal proceedings over a dissenting opinion.  Respondent had been convicted under California Penal Code (CPC) §646.9 of stalking and placed into removal proceedings by DHS, charged as deportable per INA §237(A)(2)(E)(i). The Immigration Judge (IJ) found respondent removable, a holding upheld by the BIA in a published decision, Matter Of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), which specifically ruled that a conviction under §646.9 qualifies as a “crime of stalking” per the INA.

On initial remand from the Ninth Circuit (based on DHS’ unopposed motion), the Board upheld its previous decision; a second remand (following a second DHS motion) resulted in the instant reconsideration of the prior precedent.  On remand, respondent contended that his §646.9 conviction did not qualify as a stalking offense under the INA.

At the beginning of its analysis, the BIA noted that §237(A)(2)(E)(i) states that one is deportable if “at any time after admission” he or she is convicted of a “crime of stalking”, observing that the first Sanchez-Lopez decision defined “a crime of stalking” under the Act as an offense containing the following elements: 1) conduct engaged in on more than a single occasion 2) directed at a specific individual 3) with the intent to cause that individual or a member of his or her immediate family to be placed in fear of bodily injury or death.  In its second unopposed remand motion, DHS had asked the Board to reconsider “whether there is a ‘realistic probability’ that California would apply section 646.9 to conduct committed with the intent ‘to cause and [which] causes a victim to fear safely in a non-physical cause’”. The BIA thus looked at U.S. Supreme Court jurisprudence, noting that to find that a state statute creates a crime outside the generic definition of the federal offense, there must be “a realistic probability, not a theoretical possibility” that the state would actually prosecute conduct that falls outside the generic definition.

Because no California case was found that could definitively settle whether there is a realistic probability §646.9 would be applied to a stalking offense committed with the intent to cause a victim to fear non-physical injury, the Board examined whether the language of the statute is “overly inclusive”.  On this point, because in 1994 the California Legislature had amended 646.9 to require a victim need only fear for his or her safety or that of his or her family, while deleting the requirement that the threat be against the life of, or threaten great bodily injury to, the victim, the Board concluded that the state had broadened the statute to encompass fear of a non-physical injury and therefore § 646.9’s text now “establishes that there is a ‘realistic probability’ that California would apply the statute to conduct falling outside the definition of the ‘crime of stalking’”.  As such, the appeal was sustained and proceedings ordered terminated.

In dissent, Board Member Malphrus expressed frustration with the majority’s refusal to define the generic definition of stalking to include the California statute at issue here.  He found that the generic definition used by the Board in the 2012 Sanchez-Lopez precedent decision was not substantially different from the “fear for one’s safety” standard incorporated by California, claiming that such a reasonable fear should be read into the generic definition of stalking found at §237(A)(2)(E)(i).  The dissenting opinion concluded by noting that this case illustrates the limitations of the categorical approach as now imposed by U.S. Supreme Court jurisprudence citing to (Descamps and Mathis) which now prevents those convicted of stalking from being removed, a result not intended by Congress.

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Board of Immigration Appeals

On April 6, 2018, the Board of Immigration Appeals (BIA or Board) sustained a respondent’s appeal, wherein DHS and appellant had filed a joint brief in support of the appeal, and remanded the record to the Immigration Judge (IJ).  Respondent had been convicted of a theft offense in Texas but that case had been dismissed upon the state’s request after a motion for new trial. Before the IJ, respondent conceded removability and requested cancellation of removal, counsel and DHS filing a joint brief claiming the conviction had been vacated because of a substantive defect in the underlying criminal proceeding and was therefore no longer a “conviction” for immigration purposes.  However, the IJ found respondent statutorily ineligible for relief and pretermitted the application, finding the conviction still qualified as an offense under INA §212(a)(2)(A)(i)(I), relying on Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) for the conclusion that vacated convictions remain valid for immigration purposes “regardless of the reason for the vacatur.”

The BIA first noted that, subsequent to Renteria-Gonzalez V. INS, it had issued its decision in Matter Of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other grounds, Pickering V. Gonzalez, 465 F.3d 263 (6th Cir. 2006), in which the Board had held that if a court vacates on a conviction because of a procedural or substantive defect, rather than for rehabilitation or immigration hardship purposes, the conviction is deemed eliminated; the BIA quoted its prior holding that where a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings, respondent no longer has a “conviction” within the meaning of INA §101(a)(48)(A).  The Board then pointedly stated that, with the exception of the Fifth Circuit, its interpretation of the term “conviction” and approach to determining whether a vacated conviction remains valid for immigration purposes had been “adopted by every court that has addressed the issue.”

The BIA also noted that in a request for rehearing en banc in Discipio v. Ashcroft, 369 F.3d 472 (5th Cir. 2004), vacated on reh’g, 417 F.3d 448 (5th Cir. 2005), the Government had advised the Court of Appeals that it was prepared to modify its position, apply Pickering and terminate proceedings because the underlying conviction “was undisputedly vacated for procedural and substantive defects.”  Yet, stated the Board, because the Fifth Circuit had not overruled or modified its holding in Renteria-Gonzalez v. INS, the danger of inconsistent decision continues to persist.

Finally, citing to its usual recitation of the requirement that where a statute is silent or ambiguous, the agency’s permissible interpretation should be given deference, as found in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), as later modified to include those situations where a court has previously issued a contrary decision but the administrative interpretation is reasonable (Nat’l Cable & Telecomms. Ass’n. v. Brand X Internet Servs., 545 U.S. 967 (2005)), the BIA held that §101(a)(48)(A) is silent regarding the effect of a vacated conviction and reaffirmed its holding in Pickering.  To promote national uniformity, Pickering will now be applied on a nationwide basis.  The appeal was sustained and the record remanded to the IJ for consideration of respondent’s applications for relief.  Matter of Marquez Conde, 27 I&N. Dec. 251 (BIA 2018).

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BIA Holds That The Offense Of Attempted Voluntary Manslaughter Under California Penal Code Sections 192(A) And 664, Which Requires The Specific Intent To Cause Another Person’s Death, Is Categorically An Aggravated Felony Crime Of Violence Per INA § 101(A)(43)(F), Despite The Fact That The Completed Offense Of Voluntary Manslaughter Itself Is Not Such An Aggravated Felony.

On March 15, 2018 the Board of Immigration Appeals (BIA or Board), sustained the appeal of a decision of the Immigration Judge (IJ) terminating removal proceedings on the ground that the respondent is not deportable under INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony.  Respondent had been convicted of both voluntary manslaughter in violation of California Penal Code (CPC) section 192(a) and attempted voluntary manslaughter under CPC sections 192(a) and 664. The initial Notice to Appear (NTA) charged him with removability under INA § 237(a)(2)(A)(iii) on the basis of her CPC section 192(a) conviction, claiming that offense constitutes an aggravated felony per INA § 101(a)(43)(F).  

However, as the Board explained, “DHS subsequently conceded that voluntary manslaughter under California law is not a crime of violence and lodged an additional charge that the respondent’s conviction for attempted voluntary manslaughter in violation of sections 192(a) and 664 is a conviction for a crime of violence (COV) under sections 101(a)(43)(F) and an attempt to commit an aggravated felony under section 101(a)(43)(U).”

The IJ found section 192(a) indivisible and overbroad relative to 101(a)(43)(F), concluding that attempted manslaughter is not an aggravated felony COV or an attempt offense under 101(a)(43)(U), that respondent was therefore not removable as charged, and terminated proceedings.  On appeal, DHS contended that a conviction under 192(a) and 664 is an aggravated felony COV, even if the completed offense of voluntary manslaughter under § 192(a) is not.

The BIA began its analysis by stating that in determining whether one is removable under § 237(a)(2)(A)(iii), it uses the categorical approach, focusing on the elements of the crime, not the case’ s particular facts; this approach asks whether the state statute of conviction fits within the generic federal definition of a corresponding aggravated felony.  As a result, the Board must compare the elements of CPC 192(a) and 664 with the Federal generic definition of a COV found at § 101(a)(43)(F). If the elements of the state crime are the same or narrower than those of the Federal offense, noted the opinion, “the state crime is a categorical match and every conviction under that statute qualifies as an aggravated felony.”

In finding that California manslaughter is not a categorical COV, the IJ relied on a Ninth Circuit case, Quijado-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015), which held that because one may be convicted under section 192(a) for reckless conduct, a conviction is not a categorical COV under the applicable Federal law, 18 U.S.C. § 16(a), which requires the intentional use of force.

The BIA then found that section 192(a) is not a categorical COV “because it encompasses both intentional and reckless acts”, but concluded that the offense of attempted voluntary manslaughter under the CPC “is not similarly overboard relative to § 16(a)”.  In fact, one who violates sections 192(a) and 664 must act with “the specific intent to kill another person.” The Board thus held that, unlike voluntary manslaughter, the attempted crime under sections 192(a) and 664 requires a specific intent to kill, necessarily involving the volitional “use” of force required by § 16(a).

Finally, held the decision, although counterintuitive, respondent’s conviction for attempted voluntary manslaughter under 192(a) and 664 is categorically a COV under § 16(a), under the completed crime of a voluntary manslaughter, which encompasses reckless conduct and is therefore not a categorical COV under Ninth Circuit law.  The appeal was sustained, the IJ’s decision vacated and removal proceedings reinstated with the record remanded to the Immigration Court. Matter of Cervantez Nunez, 27 I&N Dec.238 (BIA 2018).

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BIA Holds That In Deciding Whether A State Offense Is Punishable As A Felony Under The Federal Controlled Substances Act (CSA) And Is Thus An Aggravated Felony Drug Trafficking Crime Per INA §101(A)(43)(B), IJ’s Need Not Look Solely To The CSA Provision Most Similar To The State Statute Of Conviction.  Respondent’s Conviction Under §2C:35-7 Of The New Jersey Statutes For Possession With Intent To Distribute Cocaine Within 1,000 Feet Of School Property Is An Aggravated Felony Drug Trafficking Crime Because The State Offense Satisfies All Of The Elements Of 21 U.S.C. §841(A)(1) Of The CSA And Would Be Punishable Under That Provision.

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).

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