Stankiewicz v. Garland

103 F.4th 119

Aleksandra Malgorzata STANKIEWICZ, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.

Docket No. 21-6265(L)

Docket No. 22-6121(Con)

August Term, 2022

United States Court of Appeals, Second Circuit

Argued: February 21, 2023

Decided: May 31, 2024

Joshua E. Bardavid, Bardavid Law, P.C., New York, NY (Thomas V. Massucci, Law Office of Thomas V. Massucci, New York, NY, on the brief), for Petitioner.

Alexander J. Lutz, Trial Attorney, Office of Immigration Litigation (Craig A. Newell, Jr. Senior Litigation Counsel, on the brief), for Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC, for Respondent.

Before: Walker, Lynch, and Robinson, Circuit Judges.

Robinson, Circuit Judge:

Under the Immigration and Nationality Act (INA), immigration officials can remove a noncitizen who has been "convicted of an aggravated felony at any time after admission" to the United States. 8 U.S.C. § 1227(a)(2)(A)(iii). Usually, an otherwise-removable permanent resident who has lived in the United States for a certain amount of time can apply to the Attorney General for "[c]ancellation of removal." 8 U.S.C. § 1229b(a). However, a permanent resident who has been convicted of an "aggravated felony" is not eligible for cancellation of removal. Id. § 1229b(a)(3). Therefore, a permanent resident who has been convicted of an aggravated felony is both removable and statutorily ineligible to apply for cancellation of removal.

The issue in this case is whether Petitioner Aleksandra Malgorzata Stankiewicz's conviction for distributing a controlled substance on or near school property, in violation of N.J. Stat. § 2C:35-7, is an aggravated felony that makes her ineligible for cancellation of removal. We hold that it is not. The "categorical approach" requires us to compare § 2C:35-7 to any federal controlled substance offense that is a felony subject to a prison sentence greater than one year. We conclude that neither of the parties' proposed federal analogs categorically matches § 2C:35-7, which is not divisible.

Accordingly, we GRANT Stankiewicz's petition for review, VACATE the agency's ruling, and REMAND this case to the Board of Immigration Appeals (BIA) for further proceedings consistent with this opinion.

BACKGROUND

Stankiewicz was born in Poland in 1980. She was admitted to lawful permanent residence in the United States in 1992, when she was 11.

In April 2003, Stankiewicz was convicted in New Jersey of distributing a controlled substance on or near school property, in violation of N.J. Stat. § 2C:35-7. She was convicted on the basis of a guilty plea to a third-degree offense, and the substance involved was cocaine.

Fifteen years later, in May 2018, the Department of Homeland Security (DHS) initiated removal proceedings against Stankiewicz. According to DHS, Stankiewicz's April 2003 conviction made her removable for two independent reasons: (1) the conviction relates to a federally controlled substance, thus rendering her removable under 8 U.S.C. § 1227(a)(2)(B)(i); and (2) the conviction constitutes an aggravated felony that followed her admission to the United States, thereby making her removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

Represented by counsel before an Immigration Court in New York, Stankiewicz admitted all of DHS's factual allegations and conceded removability under the first charge. She initially denied removability under the second charge because she did not believe her New Jersey conviction constituted an aggravated felony. However, she later conceded that her New Jersey conviction was an aggravated felony, so she also was removable under the second charge. Based on that concession, Stankiewicz became both removable and statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3) ("The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien . . . has not been convicted of any aggravated felony.").

After conceding both removability charges, Stankiewicz requested a continuance. She argued the continuance was warranted because it would allow her (1) to seek post-conviction relief in state court and (2) to wait for a then-pending Third Circuit decision that might overturn Matter of Rosa, 27 I. & N. Dec. 228 (BIA 2018), an Interim Decision in which the BIA held that § 2C:35-7 is an aggravated felony. The Immigration Judge (IJ) concluded that neither of Stankiewicz's arguments constituted good cause for a continuance, denied her request, and ordered her removal to Poland. Stankiewicz appealed to the BIA.

While her appeal was pending before the BIA, the Third Circuit issued an opinion vacating and remanding Matter of Rosa. The Third Circuit concluded that a conviction under § 2C:35-7 is an aggravated felony only if it categorically matches the "most similar federal analog," namely, 21 U.S.C. § 860, the federal school zone statute. See Rosa v. Attorney General United States, 950 F.3d 67, 76, 80-81 (3d Cir. 2020). Earlier, the BIA had concluded in Matter of Rosa that a § 2C:35-7 conviction is an aggravated felony because it is a categorical match with 21 U.S.C. § 841, the federal controlled substance distribution statute. 27 I. & N. Dec. at 232-34.

After the Third Circuit issued Rosa, Stankiewicz moved for the BIA to remand proceedings back to the Immigration Court so she could apply for cancellation of removal. In Stankiewicz's view, because Matter of Rosa had been vacated by the Third Circuit, the BIA's decision no longer had any legal force.

Initially, the BIA dismissed Stankiewicz's appeal without considering her motion to remand. Stankiewicz filed in this Court a petition for review of that decision. In the meantime, she moved before the BIA for reconsideration. The BIA granted reconsideration, again denied Stankiewicz's motion to remand, and dismissed her appeal because the Third Circuit's decision in Rosa is not binding within the Second Circuit. The BIA thus stood by its reasoning in Matter of Rosa. Stankiewicz also timely petitioned this Court for review of that decision.¹

DISCUSSION

Ordinarily, we "lack jurisdiction to review final orders of removal" made under certain provisions of the INA, including, as relevant here, 8 U.S.C. § 1227(a)(2)(A)(iii) and (B). Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009); see also 8 U.S.C. § 1252(a)(2)(C). We do, however, have jurisdiction to review "constitutional claims or questions of law, including whether a specific conviction constitutes an aggravated felony." Pierre, 588 F.3d at 772. We review that question without deferring to the BIA or the IJ. Id.; see also 8 U.S.C. § 1252(a)(2)(D).

As explained above, Stankiewicz admits that she was convicted in 2003 of violating § 2C:35-7. And she concedes that if a § 2C:35-7 conviction is an "aggravated felony," as defined in 8 U.S.C. § 1101(a)(43)(B), then she cannot apply for cancellation of removal under § 1229b(a). The issue before us, therefore, is whether Stankiewicz's § 2C:35-7 conviction is for an aggravated felony so that she is barred from applying for cancellation of removal.

"When the Government alleges that a state conviction qualifies as an 'aggravated felony' under the INA, we generally employ a 'categorical approach' to determine whether the state offense is comparable to an offense listed in the INA." Hylton v. Sessions, 897 F.3d 57, 60 (2d Cir. 2018) (quoting Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013)). Under that approach, we "identify the minimum criminal conduct necessary for conviction under a particular statute" by examining only the statute's elements, not the case's underlying facts. Id. "If the criminal statute punishes conduct that falls outside the INA's definition," then the crime is not a categorical match to the relevant federal analog. Chery v. Garland, 16 F.4th 980, 983-84 (2d Cir. 2021); see also Mathis v. United States, 579 U.S. 500, 504, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).

As detailed below, applying the categorical approach here requires us to answer three related questions: First, in choosing the federal comparator for purposes of the categorical match analysis, must we compare § 2C:35-7 to only the "closest" federal analog under the Controlled Substances Act (CSA), rather than any CSA analog? Second, is there a categorical match? And third, if there is no categorical match, is § 2C:35-7 "divisible" for purposes of a modified categorical analysis?

We answer each question in the negative. The INA's text, and case law interpreting it, establish that we must compare § 2C:35-7 to any CSA analog.² And we conclude that § 2C:35-7 is not a categorical match to either of the parties' proposed analogs. Nor is the state statute divisible. So, Stankiewicz's § 2C:35-7 conviction is not an "aggravated felony" under § 1101(a)(43)(B) that bars her from applying for cancellation of removal under § 1229b(a). We elaborate below.

I. Proposed Federal Analogs

Stankiewicz argues that her § 2C:35-7 conviction for distributing a controlled substance on or near school property is an aggravated felony only if it categorically matches 21 U.S.C. § 860—a provision in the CSA that imposes enhanced penalties for distributing a controlled substance in a school zone. In Stankiewicz's view, we must compare § 2C:35-7 only to § 860 because § 860 is the "closest" CSA analog. Petitioner's Br. 19 (emphasis omitted). Stankiewicz's position finds support in Third Circuit precedent. See Rosa, 950 F.3d at 76. Her argument, however, runs contrary to the INA's text, as well as Supreme Court and Second Circuit case law interpreting it.

The INA lists numerous offenses that meet the definition of "aggravated felony." 8 U.S.C. § 1101(a)(43). The provision relevant to this case is § 1101(a)(43)(B), which defines "aggravated felony" to mean "illicit trafficking in a controlled substance . . . , including a...