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THAXTER, PATRICK URIAH
A078-494-561
YORK COUNTY
3400 CONCORD ROAD
YORK, PA 17402
Name: THAXTER, PATRICK URIAH
U.S. Department of Justice
Executive Ofice for Immigration Review
Board of Immigration Appeals
Ofce of the Chief Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 20530
OHS LIT.Nork Co. PrisonNOR
3400 Concord Road
York, PA 17402
A078-494-561
Date of this Notice: 5/2/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Greer, Anne J.
Guendelsberger, John
. Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
Cite as: Patrick Uriah Thaxter, A078 494 561 (BIA May 2, 2014)
For more unpublished BIA decisions, visit www.irac.net/unpublished
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U.S. Department of Justice
Executive Ofce for Innigration Review
Falls Chqch, Virginia 20530
M
File: A078 494 561 - York, Pennsylvaia
I re: PATRICK U THAXTER
IN REMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF DHS: Maureen C. Gaffuey
Assistant Chief Counsel
CHARGE:
Decision of the Board oflnnigration Appeals
Date:
MAY 2 2014
Notice: Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)]
-
Convicted of controlled substance violation
Lodged: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1 227(a)(2)(A)(iii)] -
Convicted of aggravate flony
APPLICATION: Remand, cancellation ofremoval
The respondent, a native and citizen of Jamaica, and a lawfl peranent resident since
August 2002, has filed a timely appeal of an Imigation Judge's December 4, 2013, decision.
In that decision, the Imigration Judge found the respondent removable as charged (Exhs. l ,
IA), based on his 2013 Pennsylvania conviction fr a controlled substance violation, 1which the
Innnigation Judge also fund to be for a "drug-tafficking" aggavated felony as de fined in
section 101(a)(43)() of the Innigation and Nationality Act, 8 U.S.C. 1101(a)(43)(B) (Exh.
2). In addition, the Innigation Judge found the respondent statutorily ineligible fr
cance)!ation of removal pursuant to section 240A(a)(3) of the Act, 8 U.S.C. 1229b(a)(3), and
ordered him removed to Jamaica. The appeal will be sustained ad the record will be remaded
to the Innigration Court for fther proceedings consistent with this opinion and the entry of a
new decision.
The Board reviews an I mmigation Judge's findings of fct, including findings as to the
credibility of testimony, under the "clearly eroneous" standard. See 8 C.F.R. 1003. l (d)(3)(i);
Mater of R-S-H-, 23 I&N Dec. 629 (BIA 2003); Mater of S-H-, 23 I&N Dec. 462 (BIA 2002).
We review questions of law, discretion, and judgment and all other issues in an Im igration
Judge's decision de novo. See 8 C.F.R. 1003.l (d)(3)(ii).
1 The record reflects that on Jauary 11, 2013, the respondent was convicted, upon a plea of
guilty, in the Court of Common Pleas, First Judicial Distict, Philadelphia, Commonwealth of
Pennsylvania, fr the offense of Manufacture, Delivery, or Possession with Itent to
Manufcture or Deliver, a Controlled Substance, to wit: marijuana, in violation of35 PA. STAT.
ANN. 780-113(a)(30), ad sentenced to a ter of probation of 5 yeas (Exh. 2).
Cite as: Patrick Uriah Thaxter, A078 494 561 (BIA May 2, 2014)
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A078 494 561 -1 . +
},':
On appeal, the respondent does not challenge the Immigration Judge's finding that he is
subjec to removal as having been convicted of a controlled substance violation. Rather, he
contends the Immigration Judge erred in also fnding his 2013 Pennsylvania controlled substance
violation constituted a "drug-traficking" aggravated flony under section 101(a)(43)(B) of the
Act, so as to preclude him fom establishing his eligibility for cancellation of removal fr lawfl
permanent residents under section 240A(a) of the Act, 8 U.S.C. 1229b(a).
Section 10l (a)(43)(B) of the Act defnes an aggravated flony as "illicit traficking in a
controlled substance (as defned in section 102 of the Controlled Substance Act ("CSA")),
including a drug trafficking crime (as defned in section 924(c) of title 18, United States Code)."
The Supreme Court, in Lopez v. Gonzales, 549 U.S. 47 (2006), concluded that a state drug
offense qualifies as a drug traficking crime under 18 U.S.C.
.
924(c) and, by extension, an
aggravated felony under section 10l(a)(43)(B) of the Act, if the ofense would have been
punishable as a flony under the CSA, 21 U.S.C. 802 et seq. See also Evanson v. Att' Gen.,
550 F.3d 284, 288 (3d Cir. 2008) (a state drug conviction constitutes an aggravated flony if"(a)
it would be punishable as a felony under the federal Controlled Substances Act, or (b) it is a
felony under state law and includes an illicit trafcking element.).
To determine whether an alien is removable on the basis of an alleged aggravated flony
,, ... :
"conviction, " Immigration Judges m:t ordinarily lmploy the "categorical approach," which
requires a necessary correspondence be'ween, 'on the one hand, the minimum conduct that has a
realistic probability of being prosecuted under the alien's statute of conviction and, on the other
hand, the "elements " of one or more of the "generic" aggravated flonies enumerated in
section 101(a)(43) of the Act. See, e.g., Moncriefe v. Holder, 133 S. Ct. 1678, 1684-85 (2013).
If the minimum conduct that has a realistic probability of being prosecuted under the alien's
statute of conviction does not necessfiiy correspond to the elements of an offense enumerated in
section 101(a)(43) of the Act, then an. aggravated flony removal charge cannot be sustained,
regardless of the nature of the conduct underlying the alien's conviction. Id.
However, the lack of a categorical correspondence between an alien's statute of conviction
and an enumerated aggravated felony is not necessarily determinative of the removability issue.
If the DHS establishes that the statute of conviction is "divisible " vis-a-vis the generic
aggravated felony category in question, adjudicators are permitted to conduct a "modifed
catego
.
rical " inquiry, which involves consideration of a narrow class of conviction documents
such as jury instructions, a charging document, a plea agreement, or a plea colloquy transcript-to
determine whether the respondent's particular offense of conviction had all the elements of a
generic aggravated flony. See Shepard v. United States, 544 U.S. 13, 26 (2005).
Under the Supreme Court decisi .fp Descamps v. United States, 133 S. Ct. 2276 (2013), the
modified categorical approach applies nly if:' (1) the statute of conviction is "divisible" in the
sense that it lists multiple discrete ofenses as enumerated alteratives or defines a single offense
by refrence to disjunctive sets of elements, more than one combination of which could support a
conviction, and (2) some (but not all) of those listed offenses or combinations of disjunctive
elements are a categorical match to he relevant generic standard. Id. at 2281, 2283
The United States Court of Appeals fr the Third Circuit, wherein this case arises, has fund
that 35 PA. STAT. AN. 780-113(a)(30), is phrased in the "disjunctive" and is divisible, in
that it "describes three distinct offenses: manufcture, delivery, and possession with the intent to
2
Cite as: Patrick Uriah Thaxter, A078 494 561 (BIA May 2, 2014)
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A078 494 561
deliver or manufcture." See Evanson v, Att' Gen., supra, at 292 (citing Garcia v, Att' Gen.,
462 F}d 287, 293 n, 9 (3d Cir, 2006)). Therefore, even though we may apply the modified
categorical approach, we can only look beyond the statutory definition to a limited extent and for
a limited purpose, i.e., to determine what necessary elements formed the basis for a respondent's
underlying conviction. See Rojas v. Att orey General of US., 728 F.3d 203, 215 (3d Cir. 2013)
(citing Descamps v. United States,. supra, at 2281, and finding application of modified
categorical approach appropriate whie[tatute .6f conviction "lists elements in the alterative."),
Thus, applying the modified categorical approach under Descamps to the respondent's record
of conviction (Exhs. 2, 3), we are able to determine that the respondent's conviction in violation
of 35 PA. STAT. AN. 780-l 13(a)(30), was for possession with intent to deliver marijuana.
However, the court has found the Pennsylvania statute, although analogous to 21 U.S.C.
841(a)(I), is not a categorical match to the federal statute, as a person could be prosecuted
under the Pennsylvania statute fr "distributing a small amount of marijuana for no
remuneration," which would not be a categorical equivalent to a federal drug felony. See
Catwell v. Att' Gen., 623 F.3d 199, 207 (3d Cir. 2010) (citing Jeune v. Att' Gen., 476 F.3d 199,
204-05 (3d Cir. 2007)). Therefore, there is "a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that flls outside the generic definition of [the
federal] crime." See Moncriefe v. Holder, supra, at 1685 (quoting Gonzales v. Duenas-Al varez,
549 U.S. 183, 193 (2007)).
As the Court noted in Moncriefe v. Holder, "[h]ere, the facts giving rise to 21 U.S.C.
841(a)(l ) (the CSA offense) establish a crime that may be either a flony or a misdemeanor,
depending upon the presence or absence of certain factors that are not themselves elements of the
crime . . . [a]nd so to qualif as a aggravated felony, a conviction for the predicate [state]
ofense must necessarily establih t q fctors, as well." Id. at 1687. In addition, the Court in
Moncriefe stated that "[b ]ecause"we inin what the state conviction necessarily involved, not
the fcts underlying the case, 2 we must' presume that the conviction 'rested upon [nothing] more
than the least of th[e] acts." Id. The Court concluded that "[i]f a noncitizen's conviction for a
marijuana distribution offense fils to establish that the offense involved either remuneration or
2 Although a carefl examination of the respondent's plea colloquy reveals the quantity of
,marijuana involved in his conviction, under Descamps v. United States, this is not a noticeable
fact for purposes of the aggravated felony analysis, as it is not a necessary element of the
offense. Specifically, the Descamps Court disapproved of what it termed the "modified factual "
approach, which "turns an elements-based inquiry into an evidence-based one," as "[i]t asks not
whether 'statutory definitions' necessarily require an adjudicator to find the generic offense, but
instead whether the prosecutor's case realistically led the adjudicator to make that
determination," and "it makes examination of extra-statutory documents not a tool used in a
'narrow range of cases' to identif the relevant element from a statute with multiple alteratives,
but rather a device employed in every case to evaluate the facts that the judge or jury fund." Id
at 2287. The only information-beyond the statutory definition-properly gleaned fom the record
is that the respondent's Pennsylvania offense involved possession with intent to deliver
marijuana. As the Court noted in Descamps, "the modified [categorical] approach merely helps
implement the categorical approacJi1'
.
\.:!id th\t,''[t]he modified [categorical] approach thus acts
not as an exception, but instead as'' ,pol," iS'."[i]t retains the categorical approach's central
feature: a focus on the elements, rather than the facts, of a crime . . . preserv[ing]' the categorical
approach's basic method: comparing those elements with the generic offense's." Id at 2285.
3
Cite as: Patrick Uriah Thaxter, A078 494 561 (BIA May 2, 2014)
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A078 494 561
more than a small amount of marijuana, the conviction is not for an aggravated felony under the
INA.", Id at I693-94. Thus, the actual language of the offense fr which the respondent was
convicted must indicate that the offense involved either remuneration or more than a small
amount of marijuana.
As was the case with the Georgia statute considered by the Court in Moncriefe, neither
remuneration nor the amount of marijuana involved is a necessary element to obtain a conviction
for the Pennsylvania offense at issue here. Id. at 1686-87. Consequently, the respondent's 2013
conviction under the Pennsylvania statute, when considered in light of the controlling precedent
decisions in Moncriefe and Descamps, does not reveal whether either remuneration or more than
a small amount of marijuana was involved and did not 'necessarily' involve facts that correspond
to an ofense punishable as a flony .he CSA, and is not an aggravated felony under section
10l (a)(43)(B) of the Act. Thus, ,,:'de noyo review, the Immigration Judge's finding of
removability on that basis cannot be sus'airied. `
Therefore, as the respondent remains subject to removal on account of his 2013 Pennsylvania
controlled substance violation, and a the respondent is no longer precluded by an aggravated
flony conviction from establishing his eligibility fr cancellation of removal under
section 240A(a) of the Act, 8 U.S.C. 1229b(a), the record will be remanded to the Immigration
Court for further proceedings in accordance with this opinion and the entry of a new decision.
On remand, the respondent will be affcrded the opportunity to apply for cancellation of removal
fr lawfl permaent residents of the United States, and any other relief or protection fom
removal to which he may be entitled.
Accordingly, the following order will entered,
ORDER: The appeal is sustained and the record is remanded to the Immigration Court for
further proceedings consistent with this opinion and the entry of a new decision.
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Cite as: Patrick Uriah Thaxter, A078 494 561 (BIA May 2, 2014)
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