18-3190-ag
Smith v. Barr
                                                                                                 BIA
                                                                                          Tsankov, IJ
                                                                                        A 041 307 913
                           UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th
day of June, two thousand twenty.

Present:
            BARRINGTON D. PARKER,
            MICHAEL H. PARK,
            WILLIAM J. NARDINI,
                  Circuit Judges.
_____________________________________

LINCOLN JUNIOR SMITH,
             Petitioner,

                  v.                                                18-3190-ag

WILLIAM P. BARR, UNITED STATES ATTORNEY
GENERAL,
             Respondent.
_____________________________________

For Petitioner:                           JORDAN R. DUVAL and TIMOTHY J. PROFETA, Rule
                                          46.1(e) Law Students, supervised by Jonathan Romberg,
                                          Esq., Center for Social Justice, Seton Hall University
                                          School of Law, Newark, NJ.

For Respondent:                           CRAIG A. NEWELL, JR., Trial Attorney (Joseph H. Hunt,
                                          Assistant Attorney General; Erica B. Miles, Senior
                                          Litigation Counsel, on the brief), Office of Immigration
                                          Litigation, United States Department of Justice,
                                          Washington, DC.
        UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED
to the BIA for further proceedings consistent with this order.

        Petitioner Lincoln Junior Smith, a native and citizen of Jamaica, seeks review of an October
2, 2018, decision of the BIA affirming an April 30, 2018, decision of an Immigration Judge (“IJ”)
finding him ineligible for cancellation of removal under 8 U.S.C. § 1229b(a). In re Smith, No. A 041
307 913 (B.I.A. Oct. 2, 2018), aff’g No. A 041 307 913 (Immig. Ct. N.Y. City Apr. 30, 2018). We
assume the parties’ familiarity with the underlying facts and procedural history.

        Under the circumstances of this case, we review the IJ’s decision as supplemented by the BIA.
See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Because Smith conceded removability and
was ordered removed for a controlled substance offense, our jurisdiction is limited to “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(C), (D). Smith challenges the agency’s
determinations that certain of his past convictions were aggravated felonies and thus raises a question
of law that we review de novo. See Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).

         Cancellation of removal is a discretionary form of relief that requires five years of lawful
permanent resident status, seven continuous years of lawful residence in the United States, and no
aggravated felony convictions. 8 U.S.C. § 1229b(a). The agency found Smith ineligible for
cancellation as a result of two convictions that it concluded were aggravated felonies: a fourth-degree
grand larceny conviction under N.Y. Penal Law §§ 155.05(2), 155.30(01), and a controlled substance
conviction under N.J. Stat. Ann. § 2C:35-7.1. In determining whether a conviction is an aggravated
felony, we are compelled to begin with a “categorical approach, under which we consider the offense
generically, that is to say, we examine it in terms of how the law defines the offense and not in terms
of how an individual offender might have committed it on a particular occasion.” Kondjoua v. Barr,
No. 16-296, 2020 WL 2758685, at *2 (2d Cir. May 28, 2020) (per curiam) (internal quotations omitted);
see also Moncrieffe v. Holder, 569 U.S. 184, 190–92 (2013).

         Here, Smith’s convictions cannot be deemed aggravated felonies pursuant to the categorical
approach. First — and as the Government does not dispute — Smith’s New York larceny conviction
is not a categorical match to an aggravated felony theft offense. The definition of aggravated felony
includes “a theft offense (including receipt of stolen property) or burglary offense for which the term
of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). The BIA has clearly distinguished
between theft and fraud aggravated felonies. Unlike fraud offenses, which “ordinarily involve[ ] the
taking or acquisition of property with consent that has been fraudulently obtained,” “the taking of
property without consent is required for a section [1]101(a)(43)(G) ‘theft offense.’” In re Garcia-Madruga,
24 I. & N. Dec. 436, 440 (B.I.A. 2008) (emphasis added). New York’s fourth-degree grand larceny
statute is thus not a categorical match to an aggravated felony theft offense as defined by the BIA
because it may be committed by the taking of property with consent such as through larceny by trick,
embezzlement, or obtaining property by false pretenses. See N.Y. Penal Law §§ 155.05(2), 155.30(01).

        The Government does, however, contend that Smith’s New Jersey drug conviction constitutes
an aggravated felony under the categorical approach. We disagree. An aggravated felony is defined,
in pertinent part, to include “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). In relevant part, “the term ‘drug trafficking crime’ means any felony punishable
under the Controlled Substances Act [(“CSA”)] (21 U.S.C. 801 et seq.).” 18 U.S.C. § 924(c)(2). In
order “for a state drug offense to qualify as a ‘drug trafficking crime’ and, by extension, an aggravated
felony, it must correspond to an offense that carries a maximum term of imprisonment exceeding one
year under the CSA.” Martinez v. Mukasey, 551 F.3d 113, 117–18 (2d Cir. 2008).

         Here, Smith was convicted pursuant to N.J. Stat. Ann. § 2C:35-7.1(a), which states:

         Any person who violates subsection a. of N.J.S.2C:35-5 by distributing, dispensing or
         possessing with intent to distribute a controlled dangerous substance or controlled
         substance analog while in, on or within 500 feet of the real property comprising a
         public housing facility, a public park, or a public building is guilty of a crime of the
         second degree, except that it is a crime of the third degree if the violation involved less
         than one ounce of marijuana.

The judgment of conviction shows that Smith was convicted of this offense in the second degree.
Accordingly, the starting point for the categorical analysis here is whether a second-degree offense
under § 2C:35-7.1 is a categorical match to “an offense that carries a maximum term of imprisonment
exceeding one year under the CSA.” Martinez, 551 F.3d at 118; see also Moncrieffe, 569 U.S. at 192
(starting categorical analysis with applicable subsection of statute of conviction). The CSA punishes
possession with intent to distribute a controlled substance as a felony. See Martinez, 551 F.3d at 119
(citing 21 U.S.C. § 841(a)(1)). The CSA, however, has an exception to felony treatment; it is only a
misdemeanor to distribute “a small amount of marihuana for no remuneration.” 21 U.S.C.
§ 841(b)(4); see also Moncrieffe, 569 U.S. at 193–94; Martinez, 551 F.3d at 119–20. We have held that
“an ounce, or roughly 30 grams (28.35 in point of fact), is a ‘small amount’ of marijuana within the
meaning of 21 U.S.C. § 841(b)(4).” Hylton v. Sessions, 897 F.3d 57, 59 (2d Cir. 2018). 1

         Possession of exactly an ounce of marijuana would qualify as a second-degree offense pursuant
to § 2C:35-7.1 because a third-degree conviction covers only “less than one ounce of marijuana.” N.J.
Stat. Ann. § 2C:35-7.1(a) (emphasis added). But, based on our definition in Hylton, exactly one ounce
of marijuana (if distributed for no renumeration) is not a felony under federal law because an ounce
is a small amount of marijuana. See Hylton, 897 F.3d at 59. Accordingly, the minimum conduct for
conviction in the second degree under N.J. Stat. Ann. § 2C:35-7.1 is not a felony under the CSA. See
Martinez, 551 F.3d at 121 (“[T]he sole ground for determining whether an immigrant was convicted of
an aggravated felony is the minimum criminal conduct necessary to sustain a conviction under a given
statute.”). Though the mismatch may be small, the categorical approach allows for no such
disjunction, and as a result a second-degree offense under § 2C:35-7.1 is not a categorical match to 21
U.S.C. § 841(a)(1).

        However, the lack of a categorical match between the state and federal statutes does not end
the inquiry. Where there is not a categorical match, the agency or reviewing court must determine
whether the statute of conviction is divisible, i.e., whether it encompasses some criminal acts that fall
within the federally defined offense and others that do not. Abimbola v. Ashcroft, 378 F.3d 173, 177
(2d Cir. 2004). If the state statute contains a “list of alternative elements” that create separate crimes,

         1
          Contrary to the petitioner’s suggestion, the operative definition of a “small amount” provided in Hylton is an
ounce. We do not read the allusion to “roughly 30 grams” that followed this definition to either alter the operative
amount or create any ambiguity, especially in light of the exact conversion provided in the subsequent parenthetical.
                                                               3
the statute is “divisible,” and the modified categorical approach applies. Descamps v. United States, 570
U.S. 254, 263–64 (2013). Under this approach, courts and agencies may look to the record of
conviction “to identify, from among several alternatives, the crime of conviction so that the court can
compare it to the generic offense.” Id. at 264. Conversely, “an indivisible statute creates only a single
crime, but it may ‘spell[ ] out various factual ways,’ or ‘means,’ ‘of committing some component of
the offense.’” Harbin v. Sessions, 860 F.3d 58, 64 (2d Cir. 2017) (alteration in original) (quoting Mathis
v. United States, 136 S. Ct. 2243, 2249 (2016)). Where a statute provides only different means, the
agency may not use the modified categorical approach. See id. In determining whether statutory
alternatives are means rather than elements, federal courts can be assisted by “authoritative sources of
state law” as to the degree of jury agreement that is necessary. Mathis, 136 S. Ct. at 2256.

         Here, the parties debate whether N.J. Stat. Ann. § 2C:35-7.1 is divisible as to the drug involved
in the offense, and thus whether the fact that Smith was convicted of a cocaine offense may be
considered in determining that his conviction constitutes an aggravated felony. We decline, however,
to determine in the first instance which party is correct on this front, and we instead remand to the
agency to do so. See James v. Mukasey, 522 F.3d 250, 256 (2d Cir. 2008) (noting that, though we are
not required to do so, in some cases remand may be “the wiser and more prudent course” for
evaluating the divisibility of a statute and, potentially, the facts of conviction in the first instance).
The agency here did not expressly undertake any analysis into whether § 2C:35-7.1 is divisible as
prescribed in Mathis and Harbin, nor did it thereby determine whether and by what means it could
consider the conduct underlying Smith’s conviction under the modified categorical approach.
Additionally, there is a disputed question as to whether and to what effect Smith admitted before the
agency that his offense involved cocaine. Finally, the agency did not evaluate the extent to which the
New York grand larceny statute under which Smith was convicted may be divisible as to the method
of larceny. 2 As a result, we deem it appropriate for the agency to undertake the divisibility analysis in
the first instance, as well as any such further inquiry as may be required concerning Smith’s eligibility
for cancellation of removal.

     For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is
VACATED, and the case is REMANDED for further proceedings consistent with this order.

                                                          FOR THE COURT:
                                                          Catherine O’Hagan Wolfe,
                                                          Clerk of Court




         2
            Indeed, as noted by the Government, the Attorney General has in the interim referred to himself a case relevant
to this issue. See In re Reyes, 27 I. & N. Dec. 708, 708 (A.G. 2019) (inviting briefing on “whether an alien who has been
convicted of a criminal offense necessarily has been convicted of an aggravated felony . . . , where all of the elements of
the underlying statute of conviction, and thus all of the means of committing the offense, correspond either to an
aggravated felony theft offense, as defined in 8 U.S.C. § 1101(a)(43)(G), or to an aggravated felony fraud offense, as defined
in 8 U.S.C. § 1101(a)(43)(M)(i)”).
                                                                   4
