                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-26-2003

Wilson v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-1414




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                          PRECEDENTIAL

                                Filed November 26, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No. 03-1414


                 EVERALD WILSON,
                              Appellant
                         v.
   JOHN ASHCROFT, UNITED STATES ATTORNEY
GENERAL; IMMIGRATION & NATURALIZATION SERVICE;
   WARDEN OF YORK COUNTY PRISON, YORK, PA

   On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
              (Dist. Ct. No. 03-cv-00652)
      District Judge: Honorable Stewart Dalzell

      Submitted Under Third Circuit LAR 34.1(a)
                September 16, 2003
Before: ALITO, AMBRO, and CHERTOFF, Circuit Judges.

              (Filed November 26, 2003)
                   TATIANA S. ARISTOVA
                   1760 Market Street, Suite 1100
                   Philadelphia, PA 19103
                   Attorney for Appellant
                              2


                      PATRICK L. MEEHAN
                      United States Attorney
                      VIRGINIA A. GIBSON
                      Assistant United States Attorney,
                       Chief, Civil Division
                      STEPHEN J. BRITT
                      SUSAN R. BECKER
                      Assistant United States Attorney
                      615 Chestnut Street, Suite 1250
                      Philadelphia, PA 19106
                      Attorneys for Appellee


                 OPINION OF THE COURT

CHERTOFF, Circuit Judge.
   Appellant Everald Wilson, an alien under a final order of
removal from the United States, appeals the denial of his
application for injunctive relief and his habeas corpus
petition seeking to bar both his removal and his custodial
detention pending removal. Wilson argues that the
Immigration and Naturalization Service (“INS,” as it was
then known) violated his due process rights by denying his
application for an adjustment of immigration status without
allowing him to seek a waiver of inadmissibility, and also by
preventing him from appealing his order of removal. Wilson
also urges that he should be released pending disposition of
his case.
   Wilson’s removal was based on his conviction for
possession of marijuana with intent to distribute, in
violation of the laws of the State of New Jersey. He argues
that despite this conviction, he is eligible for a waiver of
inadmissibility and, also, could have successfully
overturned INS’s removal order. The resolution of this latter
issue turns on the specifics of the crime to which he pled.
If the state crime was either a state drug trafficking felony
or the equivalent of a federal drug felony, then Wilson is not
eligible for a waiver, and could not have blocked removal.
Because the record is not completely clear, we will remand
this case for further proceedings in the District Court.
                             3


                             I.
   Wilson is a native and citizen of Jamaica who entered the
United States illegally in 1989. On November 17, 1995,
Wilson pled guilty to violating N.J. Stat. Ann. § 2C:35-
5b(11), a drug offense under New Jersey law entitled
“Manufacturing, Distributing or Dispensing.” The judgment
of conviction indicates that Wilson pled guilty to
“possession with intent to distribut[e]” more than one ounce
(twenty eight grams) of marijuana. As a first-time offender,
Wilson was sentenced to probation with a special condition
that he serve forty days in county jail.
  Wilson married a U.S. citizen in 1996, and he and his
wife had two children. On August 27, 1997, Wilson applied
to adjust his status to that of a lawful permanent resident
pursuant to Section 245 of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1255. On December 5, 2000, INS
notified Wilson that Section 212(a)(2)(C) of the INA rendered
him inadmissible for permanent residence due to his 1995
drug conviction. The notice specifically informed Wilson
that no waivers existed for inadmissibility predicated on
that statutory provision.
   In September of 2002, INS arrested Wilson and notified
him that it intended to issue a final administrative removal
order against him pursuant to 8 U.S.C. § 1228(b). The
ensuing final removal order is dated October 5, 2002, but
it was apparently not served on Wilson until November 12,
2002. INS sought to remove Wilson from the United States
on January 31, 2003.
  Wilson filed suit that same day seeking injunctive relief
and a writ of habeas corpus. The District Court dismissed
Wilson’s habeas petition and denied injunctive relief on
February 7, 2003. Wilson filed a timely notice of appeal.

                             II.
  This Court has jurisdiction under 28 U.S.C. §§ 1291 and
2253(a). Our review of the District Court’s legal
determinations is plenary, and we review the denial of
injunctive relief for abuse of discretion.
                                      4


  Wilson first argues that—contrary to INS’s December 5,
2000 notice—he was eligible for waiver of inadmissibility
under 8 U.S.C. § 1182(h) and the INS violated his right to
due process by summarily denying his application for
adjustment of status without giving him the opportunity to
pursue that waiver. Accordingly, he urged the District
Court to enjoin his removal pending full adjudication of his
claim for waiver of inadmissibility.
   Wilson misreads the relevant statutory provisions. INS
invoked Section 212(a)(2)(C) in rejecting Wilson’s
application for permanent residence.1 Section 212(h), by its
literal terms, does not provide a waiver for aliens found
inadmissible under Section 212(a)(2)(C)2—Section 212(h)
only allows for waiver, in certain prescribed circumstances,
for individuals found inadmissible under Sections 212(a)(2)
(A)(i)(I), (B), (D), and (E), as well individuals found
inadmissible under Section 212(a)(2)(A)(i)(II) if their
inadmissibility “relates to a single offense of simple
possession of 30 grams or less of marijuana . . . .” 8 U.S.C.
§ 1182(h).
  Moreover, even if Wilson’s inadmissibility were to more
properly fall under Section 212(a)(2)(A)(i)(II),3 Wilson faces
the additional insurmountable hurdle that—contrary to his
wishful thinking—he was not convicted of simple

1. Section 212(a)(2)(C) denies admissibility to any alien who is or has
been “an illicit trafficker in any . . . controlled substance . . . .” Section
212(a)(2)(A) defines “controlled substance” by incorporating 21 U.S.C.
§ 802, which classifies marijuana as such a substance.
2. As explained more fully below in our discussion of the definition of
aggravated felony, 21 U.S.C. § 841(b)(4) creates an exception to felony
treatment for individuals convicted of distribution of a small amount of
marijuana without remuneration. Such individuals “shall be treated as
provided in section 844” of Title 21, United States Code. Section 844
governs possession of unlawful drugs. We do not read section 841(b)(4)
to literally convert gratuitous distribution of marijuana into “simple
possession” as the term is used in INA section 1182(h). Rather,
subsection (b)(4) says that such small time distributors shall be “treated
as provided” in section 844.
3. Section 212(a)(2)(A)(i)(II) denies admissibility to any alien who violates
any federal, state, or foreign law “relating to a controlled substance.” 8
U.S.C. § 1182(a)(2)(A)(i)(II).
                             5


possession. Rather, he pled to possession with intent to
distribute. The District Court was therefore correct to deny
his application for injunctive relief on this basis.
   Next, Wilson claims that INS’s alleged misconduct—in
particular, failing to serve him with his final removal order
until after the thirty-day window for appeal had expired—
violated his right to due process by preventing him from
pursuing a meritorious appeal. INS’s removal order
specified that Wilson was deportable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) based upon his conviction for an
“aggravated felony.” Had he been able to file his appeal,
Wilson contends, he would have demonstrated that his
state crime of possession of marijuana with intent to
distribute did not constitute an “aggravated felony” as the
INA defines that term. See 8 U.S.C. § 1101(a)(43)(B). He
therefore urged the District Court to grant his petition for
habeas corpus and order INS to rescind his order of
removal.
  The District Court did not rule on Wilson’s allegations of
misconduct, but rejected his argument on the ground that
any appeal would have been unavailing on the merits. This
was correct because there would be no due process
violation in the absence of prejudice.
  Under 8 U.S.C. § 1252(a)(2)(C), this Court has limited
jurisdiction to consider an appeal from a final order of
removal against an alien convicted of an aggravated felony.
Drakes v. Zimski, 240 F.3d 246 (3d Cir. 2001). In
particular, once we determine that the state criminal
statute fits the legal definition of aggravated felony, our
review of an alien’s deportability comes to an end. Id. at
247-48. Thus, if possession of marijuana with intent to
distribute constitutes an aggravated felony, Wilson’s loss of
any appeal right is harmless.
  In Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002), we
held that there are two “routes” to determine whether a
state narcotics violation is an aggravated felony. First, a
crime categorized as a felony under state law that involves
drug “trafficking” is an aggravated felony (“route A”).
Second, if a state drug violation, regardless of
categorization, would be punishable as a felony under an
                              6


analogous federal statute, then it also constitutes an
aggravated felony (“route B”).
  The District Court found that possession of marijuana
with intent to distribute is an aggravated felony using the
route B approach. The District Judge reasoned that N.J.
Stat. Ann. § 2C:35-5b(11) criminalizes possession of at least
one ounce (and less than five pounds) of marijuana with
intent to manufacture, distribute, or dispense it. Wilson
pled guilty and thereby admitted to possession with intent
to distribute. The analogous federal criminal provision is 21
U.S.C. § 841(a)(1), which proscribes the identical conduct.
The District Court found that the penalty for violating the
federal statute under 21 U.S.C. § 841(b)(1)(D) is up to five
years in prison, and it concluded that the crime to which
Wilson pled is therefore analogous to a federal felony.
   The matter is somewhat more complicated, however,
because 21 U.S.C. §§ 841(b)(1)(D) and (b)(4) establish an
exception. The exception provides that a person who
violates Section 841(a) “by distributing a small amount of
marihuana for no remuneration” shall be punished under
the misdemeanor provisions of 21 U.S.C. § 844. Thus,
gratuitous distribution of an undefined “small amount” of
marijuana “without remuneration is not inherently a felony
under federal law.” Steele v. Blackman, 236 F.3d 130, 137
(3d Cir. 2001). Because the state statute under which
Wilson pled guilty does not contain sale for remuneration
as an element, we cannot determine from the state court
judgment that Wilson’s conviction necessarily entails a
finding of remuneration.
  In response to our request for a supplemental brief, the
Government argued that Section 841(b)(4)’s “small amount”
escape clause could not apply to the crime for which Wilson
was convicted because Section 841(b)(4) applies to one who
gratuitously distributes a small amount of marijuana, and
not to one who merely possesses a small amount of
marijuana with intent to gratuitously distribute it. Here, the
Government asserts, Wilson was convicted of possession
with intent to distribute and therefore would not fall within
the escape clause of Section 841(b)(4).
  This argument has a flawed premise. The statute under
                                    7


which Wilson was convicted punishes both distribution and
possession with intent to distribute. In evaluating whether
a state violation is analogous to a federal felony, we look to
the elements of the statutory state offense, not to the
specific facts. We rely on “what the convicting court must
necessarily have found to support the conviction and not to
other conduct in which the defendant may have engaged in
connection with the offense.” Steele, 236 F.3d at 135;
accord Gerbier v. Holmes, 280 F.3d at 313. Since the state
statutory elements would be satisfied by proof of either
distribution or possession with intent to distribute, we
cannot draw the federal analogy by presuming that the
statute only covers possession. For this reason, we decline
the Government’s invitation to explore the underlying
record or plea allocution to determine the specific facts
underlying Wilson’s plea.4
  We hold that the state conviction in this case cannot be
analogized to a hypothetical federal felony under Gerbier’s
route B approach. But Wilson may be guilty of an
aggravated felony under the route A analysis. The District
Court extensively discussed that possibility and indicated a
strong likelihood that Wilson’s conviction would satisfy the
test for an aggravated felony under route A. District Ct. Op.
5-6 n.7. Nevertheless, because the District Court did not
formally adopt that ruling, and because it did not have the
benefit of our discussion of Section 841(b)(4) insofar as it
may relate (if at all) to the route A approach, we think it
premature for us to consider route A as an alternative
ground to uphold the District Court’s judgment. Instead, we
will afford the District Judge an opportunity in the first

4. For this reason, as well, we need not decide the Government’s
interpretation of Section 841(b)(4) as applying only to small gratuitous
distributions, but not to gratuitous possession with intent to distribute.
The Government cites no case to support this interpretation, and it
seems logically problematic—it is impossible to conceive of a case in
which someone could distribute a drug but not, at least for an instant,
actually or constructively possess the drug with intent to distribute.
Thus, if the Government’s view were correct, every defendant who fell
under Section 841(b)(4) would also be excluded from it by virtue of the
fact that he or she also necessarily possessed the marijuana in the act
of distributing it.
                                  8


instance to determine whether Wilson was convicted of an
aggravated felony under route A.5
  We will reverse the judgment of the District Court and
remand for further proceedings in accordance with this
decision.

A True Copy:
        Teste:
                      Clerk of the United States Court of Appeals
                                  for the Third Circuit




5. At the time of the decision below, Wilson was still within the
presumptive six-month period during which he can be held in detention
without release. The District Court properly indicated that the
immigration authorities need not, therefore, consider him for release.
Since this appeal is decided at a time that is arguably beyond the six-
month period, depending on how that term is calculated, the District
Court may address the issue of release in the current posture of the
case. See Chi Thon Ngo, 192 F.3d 390, 400-01 (3d Cir. 1999).
