                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2007

Davis v. BCIS
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2078




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"Davis v. BCIS" (2007). 2007 Decisions. Paper 873.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/873


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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 04-2078


                             RUDOLPH JEFFER DAVIS,

                                                    Appellant

                                            v.

                *ATTORNEY GENERAL OF THE UNITED STATES

                             (*Amended per order on 7/5/06)



                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D. C. Civil No. 03-cv-04398)
                      District Judge: Hon. William H. Yohn, Jr.


                              Argued on February 1, 2007


                      Before: BARRY and ROTH, Circuit Judges
                               IRENAS*, District Judge

                             (Opinion filed: June 28, 2007)




       *Honorable Joseph E. Irenas, United States District Judge, for the District of New
Jersey, sitting by designation.
Barak A. Bassman, Esquire (ARGUED)
Barbara T. Sicalides, Esquire
Pepper Hamilton
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103

              Counsel for Appellant Rudolph Jeffer Davis


Paul G. Shapiro, Esquire (ARGUED)
Assistant United States Attorney
Patrick L. Meehan, Esquire
United States Attorney
Virginia A. Gibson, Esquire
Assistant U. S. Attorney
Chief, Civil Division
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

              Counsel for Appellee United States of America



                                        OPINION


ROTH, Circuit Judge:

       Rudolph Jeffer Davis petitions for review of the order of the Board of Immigration

Appeals (BIA), affirming, without opinion, the order of the Immigration Judge (IJ) removing

Davis from the United States. We will deny the petition.

       Davis is a native and citizen of St. Vincent and a legal permanent resident of the United

States. On July 3, 1997, Davis was convicted in the Court of Common Pleas of Philadelphia

of possession of a controlled substance with intent to deliver, in violation of 35 Pa. Stat. §

                                               2
780-113(a)(30), as well as simple possession, in violation of 35 Pa. Stat. § 780-113(a)(16).1

Davis was sentenced to nine months probation. Based on this conviction, the Immigration and

Naturalization Service commenced removal proceedings against him on August 23, 1999,

charging Davis with having been convicted of an aggravated felony, as defined in section

101(a)(43)(B) of the Immigration and Nationality Act. After a hearing, the IJ concluded that

Davis committed an aggravated felony and ordered his removal to St. Vincent. Davis

appealed the IJ’s decision to the BIA. On December 4, 2002, the BIA affirmed, without

opinion, the IJ’s decision. In July 2003, Davis filed a petition for writ of habeas corpus in the

United States District Court for the Eastern District of Pennsylvania, challenging the BIA’s

order. The District Court denied Davis’s habeas petition on March 3, 2004. Davis appealed

the District Court’s denial of his habeas petition to this Court. The REAL ID Act of 2005,

which became effective on May 11, 2005, converted his appeal to a petition for review.

Jordon v. Attorney General, 424 F.3d 320, 327 (3d Cir. 2005).

        We have jurisdiction over Davis’s petition for review pursuant to 8 U.S.C. §

1252(a)(2)(D). See Ng v. Attorney General, 436 F.3d 392, 394 (3d Cir. 2006) (“our



    1
    While Davis maintains that the government did not meet its burden of establishing that
he was, in fact, convicted in state court of both charges, we conclude that we are without
jurisdiction to consider this claim. “As a general rule, an alien must exhaust all
administrative remedies available to him as of right” before the BIA as a prerequisite to
raising a claim before this Court. Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005).
Davis’s conviction under 35 Pa. Stat. § 780-113(a)(30) was certainly an issue that the BIA
was capable of addressing. Since Davis failed to raise this argument in his appeal to the
BIA, he did not exhaust his administrative remedies. Thus, we do not have jurisdiction to
consider it here.

                                               3
jurisdiction extends to questions of law raised upon a petition for review, including petitions

for review of removal orders based on aggravated felony convictions”). We exercise plenary

review over Davis’s legal argument that he was not convicted of an aggravated felony. See

Tran v. Gonzales, 414 F.3d 464, 467 (3d Cir. 2005).

        Pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), an alien, who is convicted of certain

offenses, including an aggravated felony, is subject to removal. The term “aggravated felony”

is defined by statute, and includes “illicit trafficking in a controlled substance (as defined in

section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of

Title 18).” 8 U.S.C. § 1101(a)(43)(B). There are two routes by which a state drug conviction

may qualify as an aggravated felony, the illicit trafficking route and the hypothetical federal

felony route. Under the illicit trafficking route, a state drug conviction will constitute an

aggravated felony if it is (1) a felony under state law and (2) contains a trafficking element.

Gerbier v. Holmes, 280 F.3d 297, 312 (3d Cir. 2002). Under the hypothetical federal felony

route, a state drug conviction will qualify as an aggravated felony if it is punishable as a

felony under the Controlled Substances Act. Id. at 315.

        Davis maintains that the IJ erroneously ordered his removal as an aggravated felon

because 35 Pa. Stat. § 780-113(a)(30), the statute under which he was convicted, does not

constitute an aggravated felony under either route. For the reasons that follow, we conclude

that Davis’s conviction constitutes an aggravated felony under the illicit trafficking route.2



    2
     We, therefore, do not need to address the hypothetical federal felony route.

                                               4
       In Garcia v. Attorney General, 462 F.3d 287, 293 (3d Cir. 2006), we recognized that

a conviction under 35 Pa. Stat. § 780-113(a)(30) is a felony under state law and, thus, satisfies

the first requirement of the illicit trafficking route. Accordingly, a conviction under this

statute will constitute an aggravated felony if it contains a trafficking element. To contain a

trafficking element, a state felony must involve “the unlawful trading or dealing of a

controlled substance.” Gerbier, 280 F.3d at 305. In Gerbier, we noted that “distribution,

solicitation, [and] possession with intent to distribute” suggest trading or dealing in a

controlled substance. Id. at 313.

       To determine whether Davis’s conviction contained a trafficking element, we may

examine the charging instrument. Garcia, 462 F.3d at 292 (finding the criminal complaint

sufficient to indicate that the defendant’s conviction under 35 Pa. Stat. § 780-113(a)(30)

contained a trafficking element). Here, the criminal complaint states: “the defendant

unlawfully sold and delivered a controlled substance, to wit, one packet of marijuana to an

undercover police officer, and possessed an additional 17 packets of marijuana and one bag

of loose marijuana of sufficient quantity and/or under sufficient circumstances as to indicate

an intent to deliver.” It is clear from the criminal complaint that Davis was charged with

delivery and possession with intent to deliver marijuana, which, as explained in Gerbier,

suggests that he was trading or dealing in a controlled substance. Thus, the record of Davis’s

state conviction is sufficient to establish that his conviction contained a trafficking element.




                                               5
       Because Davis’s conviction under 35 Pa. Stat. § 780-113(a)(30) is a felony under state

law and contains a trafficking element, we conclude that it is an aggravated felony under the

illicit trafficking route. Accordingly, we will deny the petition for review.




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