                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 17-1499
                                    _______________

                               ELI ALMANZAR MOREY,
                                            Petitioner

                                             v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                     Respondent
                          _______________

        On Petition for Review of an Order of the Board of Immigration Appeals
                                    (A045-382-117)
                         Immigration Judge: Dorothy Harbeck
                                   _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 November 17, 2017

           Before: VANASKIE, SHWARTZ, and FUENTES, Circuit Judges

                            (Opinion Filed: February 2, 2018)
                                   _______________

                                       OPINION
                                    _______________
FUENTES, Circuit Judge.

       Petitioner Eli Almanzar Morey is a national of the Dominican Republic. He was

initially admitted to the United States in April 1996 as a Conditional Permanent Resident




 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
and became a Lawful Permanent Resident in September 2010. In 2010, Morey was

convicted of 5th Degree Criminal Sale of a Controlled Substance in New York state court

in violation of New York Penal Law § 220.31. After a period outside the country, Morey

arrived at Newark Liberty International Airport on March 17, 2015. At that time, he

applied for admission as a returning Lawful Permanent Resident.

       Morey was denied entry and two days later was served with a Notice to Appear by

the Department of Homeland Security charging him as removable.1 These charges were

based on Morey’s 2010 New York drug conviction. The Immigration Judge, in a written

decision, determined that Morey’s conviction “renders him inadmissible and he is

removable under INA § 212(a)(2)(A)(i)(II)”2 and denied his application for cancellation

of removal.3 In her decision, the Judge determined that § 220.31 was divisible and that

because the specific drug Morey sold—heroin—is a controlled substance under both New

York and federal law, this conviction bars him from admission and requires his removal.

Morey appealed to the Board of Immigration Appeals (the “Board”) on only the

determination of his removability.4 The Board affirmed, agreeing that the statute is

divisible and that the Immigration Judge properly applied the modified categorical

approach. It also dismissed Morey’s argument that the New York statute is more broad

than the federal statute because it criminalizes at least one more drug. The Board



1
  See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II) and 1182(a)(2)(C).
2
  INA §§ 212(a)(2)(A)(i)(II) is codified in the United States Code at 8 U.S.C. §
1182(a)(2)(A)(i)(II).
3
  A.R. 30.
4
  Morey Br. at 5.
                                            2
determined this argument was foreclosed by its ruling in Matter of Ferreira.5 In

Ferreira, the Board held that where a state statute seems on its face to cover a controlled

substance that the federal list does not, there must be a “realistic probability” that the

state actually prosecutes conduct falling outside the federal generic crime.6 The Board

noted that Morey had not shown such a realistic probability and, thus, the New York

statute could be considered a categorical match for the federal statute.

       Morey now petitions us for review of the final Board decision that he is

inadmissible. He presents two issues for our review: (1) whether the Board erroneously

found that § 220.31 is divisible and thus subject to the modified categorical approach;

and (2) whether, if the statute were divisible, the Board erroneously relied on Matter of

Ferreira and required Morey to demonstrate a realistic probability that § 220.31 would be

applied to prosecute conduct not proscribed under federal law. For the reasons that

follow, we will deny the petition for review.

                                              I.

       The same day Morey filed his opening brief on this appeal, the Second Circuit

issued its decision in Harbin v. Sessions.7 In this decision, the Second Circuit held that §

220.31 was indivisible, an issue directly relevant to this appeal.8 Since this decision,

Morey has argued that we should adopt the rationale of the Second Circuit, while the

Attorney General has invited us to create a circuit split with the Second Circuit regarding


5
  26 I&N Dec. 415 (BIA 2014).
6
  Id. at 420-21.
7
  860 F.3d 58 (2d Cir. 2017).
8
  Id. at 61.
                                                3
interpretation of the state law of one of its constituent states. Assuming, without

deciding, that the Second Circuit’s Harbin decision is accurate in its holding that §

220.31 is indivisible, Morey is still not entitled to relief as he has not demonstrated a

realistic probability the New York statute in question is actually applied to conduct

involving controlled substances outside of the scope of the federal controlled substances

schedule.

       Morey claims that he is not removable because the New York statute he was

convicted under, § 220.31, criminalizes a broader swath of conduct than federal law and

as a result is not a categorical match for the generic statute.9 In support of this assertion

Morey notes that a drug that appears on the New York list, chorionic gonadotropin, is not

prohibited under the related federal law.10 Morey claims that § 220.31 is not a

categorical match for the generic statute and, thus, he has not violated a state law

“relating to a controlled substance” as defined by federal law.11 Because his removal was

predicated on his violation of a state law relating to a controlled substance offense, he

argues his removal is impermissible. Morey is mistaken.




9
  See, e.g., Descamps v. United States, 570 U.S. 254, 257 (2013) (explaining that the
categorical approach “compare[s] the elements of the statute forming the basis of the
defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as
commonly understood”).
10
   See 21 U.S.C. § 802; 21 C.F.R. § 1308.11-15.
11
   8 U.S.C. § 1182 (a)(2)(A)(i)(II); see Moncrieffe v. Holder, 569 U.S. 184, 192 (2013)
(holding that to qualify as a conviction relating to a federally controlled substance, “a
state drug offense must meet two conditions: It must ‘necessarily’ proscribe conduct that
is an offense under the [Controlled Substances Act], and the [Act] must ‘necessarily’
prescribe felony punishment for that conduct”).
                                              4
       The Supreme Court has instructed that in considering whether a state statute

criminalizes conduct beyond that of its federal corollary, “there must be ‘a realistic

probability, not a theoretical possibility, that the State would apply its statute to conduct

that falls outside the generic definition of a crime.’”12 Absent this analysis, the

categorical approach becomes “an invitation to apply ‘legal imagination’ to the state

offense.”13 Morey must thus demonstrate that there is a realistic probability that the New

York statute is actually applied to conduct outside the scope of the federal controlled

substance schedules.14 He has failed to do so.

       Morey does not cite any New York case where an individual has been prosecuted

for selling chorionic gonadotropin, nor have we been able to identify one. As Morey has

failed to identify a single instance of New York prosecuting someone for the sale of

chorionic gonadotropin, such a prosecution is merely a “theoretical possibility” and does

not prevent § 220.31 from being considered a categorical match for the generic offense.15

The Board did not err in relying on Matter of Ferreira to come to the same conclusion.

                                              II.

       For the reasons set forth above, we deny the petition to review the Board’s denial

of Morey’s appeal of his removability charge.




12
   Id. at 191 (quoting Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
13
   Id. (quoting Duenas-Alvarez, 549 U.S. at 193).
14
   See id.
15
   See id.
                                              5
