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


8-27-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4512




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-4512


                            ADOLPHUS NOEL MCNEIL,

                                                  Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                                                    Respondent.


                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A41-929-486)


                      Submitted under Third Circuit LAR 34.1(a)
                                 on February 1, 2007


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

                               ( Filed: August 27, 2007 )




      *The Honorable Joseph E. Irenas, Senior U.S. District Judge for the District of
New Jersey, sitting by designation.
                                      OPINION


ROTH, Circuit Judge:

         Adolphus McNeil petitions for review of the order of the Board of Immigration

Appeals (BIA) denying his request for cancellation of removal, asylum, withholding of

removal and protection under the United Nations Convention Against Torture (CAT). We

will affirm the BIA’s order finding McNeil ineligible for withholding of removal and

cancellation of removal. We will vacate the BIA’s finding that McNeil’s past conviction of

criminal sale of marijuana constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(B)

that subjects McNeil to removal and remand this case for further proceedings to determine

whether McNeil timely applied for asylum. See 8 C.F.R. 208.4(a)(2).

I. Factual and Procedural History

         Pennsylvania State Police arrested McNeil on April 23, 1998, near Wilkes-Barre,

Pennsylvania, and charged him with possession of marijuana and possession of stolen

property. McNeil had entered the United States on or about May 14, 1988, as a lawful

permanent resident from Guyana. The police conducted a records check revealing three

convictions from New York. McNeil had been convicted twice, in October 1989 and

February 1990, for possession of marijuana.1 He had also been convicted in May 1990 for



   1
       Violation of N.Y. Penal Law § 221.10.

                                               2
the sale of marijuana.2 McNeil was released to the INS. On April 28, 1998, the INS served

McNeil with a notice to appear, charging him with being removable from the United States

because of his prior convictions. On December 21, 1998, an Immigration Judge (IJ) found

that McNeil was removable because of his prior convictions for controlled substance

violations. The IJ denied McNeil’s application for asylum, withholding of removal, and

cancellation of removal because McNeil had been convicted of an aggravated felony. The

IJ ordered McNeil removed to Guyana.

            McNeil filed a timely notice of appeal with the BIA. On March 20, 2002, the BIA

affirmed part of the IJ’s decision and remanded the record to the IJ for further consideration.

The BIA found that the record sufficiently established McNeil’s three New York convictions

and that McNeil’s conviction for criminal sale, a drug-trafficking crime, was an aggravated

felony subjecting McNeil to removal and barring him from applying for asylum. The BIA

remanded the case to the IJ to determine whether McNeil’s aggravated felony conviction

constituted a conviction for a particularly serious crime that would make him ineligible for

withholding of removal. The BIA also found that McNeil, on remand, was entitled to apply

for a waiver of deportation.3 8 U.S.C. § 1182(c) (repealed 1996).

            The remanded proceedings were continued several times for various reasons,

including to allow McNeil to resolve an outstanding bench warrant in New Jersey. McNeil

   2
           Violation of N.Y. Penal Law § 221.40.
       3
      McNeil has not raised the issue of his eligibility for a waiver of deportation in this
petition for review.

                                                   3
was ordered removed, in absentia, after neither he nor his counsel appeared at a June 10,

2003, hearing. McNeil’s case was subsequently reopened, and the venue changed to York,

Pennsylvania. During a hearing on January 2, 2004, the IJ addressed the effect that

McNeil’s two additional convictions – a New Jersey conviction (January 30, 1998) for

possession of over fifty grams of marijuana and a Pennsylvania conviction (January 5, 1999)

for possession of a small quantity of marijuana – had on his eligibility for a waiver of

deportation, and continued the case to allow both sides to research the issue. McNeil

subsequently filed a “Motion for New Adjudication” asking the IJ to adjudicate the

correctness of the BIA’s determination that his New York conviction for the sale of

marijuana constituted an aggravated felony in light of Steele v. Blackman, 236 F.3d 130 (3d

Cir. 2001), and to permit him to apply for cancellation of removal, in addition to applying

for a waiver of deportation. In response, the Government filed a Form I-261, Additional

Charges of Inadmissibility/Deportability, supplementing its original allegations with the

additional allegations of McNeil’s 1998 and 1999 convictions. The Government also filed

a “Declaration in Opposition” to McNeil’s “Motion for New Adjudication.”

       On February 6, 2004, the IJ denied McNeil’s motion to request protection under the

United Nations Convention Against Torture (CAT) because the case had been remanded

only to consider whether McNeil was eligible for withholding of removal.4 The IJ also


   4
    United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1465 U.N.T.S. 85, G.A. Res. 39/46, U.N. GAOR, 39th Sess.,
Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984).

                                            4
asked McNeil if he wished to offer any evidence on whether his crime was particularly

serious, but McNeil stated that he was no longer requesting withholding of removal. On

February 10, 2004, the IJ forwarded McNeil’s case to the BIA with a request for

certification. The certification asked the BIA to consider our holding in Steele and whether

it had any effect on the BIA’s determination that McNeil’s conviction constituted an

aggravated felony. The IJ also notified the BIA of McNeil’s 1998 and 1999 controlled

substance convictions.

       On September 6, 2005, the BIA considered the certification from the IJ. The BIA

declined to reconsider its March 20, 2002, decision finding McNeil an aggravated felon

because Steele was neither intervening case law nor relevant to McNeil’s removability as an

aggravated felon. The BIA also declined McNeil’s “Motion for New Adjudication” of its

March 20, 2002, decision finding McNeil removable as an aggravated felon because McNeil

had exceeded the time and number limitations for motions to reopen. The BIA then noted

its agreement with the IJ that McNeil’s 1998 and 1999 convictions prohibited him from

being eligible for a waiver of deportation because he remained removable as a result of his

controlled substance violations. The BIA also affirmed the IJ’s decision that McNeil was

ineligible for cancellation of removal because he was an aggravated felon and he had failed

to acquire the required length of residence prior to his 1990 conviction. The BIA dismissed

McNeil’s appeal, and he subsequently filed this petition for review.

       McNeil’s counsel did not submit a brief prior to the BIA’s consideration of the


                                             5
certification from the IJ. Apparently, a copy of the certification and briefing schedule had

been sent to his counsel’s office, but she was in the process of moving and did not receive

the briefing schedule. It is undisputed that McNeil received a copy of the certification and

briefing schedule.

II. Standard of Review

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

1252(a)(2)(D). See Ng v. Att'y Gen., 436 F.3d 392, 394 (3d Cir. 2006) (noting that our

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 McNeil's legal argument that he was not convicted of an aggravated

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

III. Analysis

       McNeil does not dispute that his four marijuana related convictions qualify as

“controlled substance violations” under 8 U.S.C. § 1227(a)(2)(B)(i), thus subjecting him to

removal. McNeil contends that the IJ and BIA improperly found that his conviction under

N.Y. Penal Law § 221.40 was an aggravated felony. Aliens convicted of an aggravated

felony are ineligible for discretionary relief from an order of removal. See 8 U.S.C. §

1158(b)(2)(A)(ii) (asylum); 8 U.S.C. § 1229(a)(3) (cancellation of removal); 8 U.S.C. §




                                             6
1231(b)(3)(B)(ii) (withholding of removal).5 McNeil claims that because of this legal error

he was deprived of the opportunity to apply for asylum, withholding of removal and

cancellation of removal. McNeil also claims his due process rights were violated because

the IJ refused to consider his petition under CAT and his attorney was unable to file an

appellate brief on the issues certified to the BIA.

       At the outset, we will affirm in part the BIA’s decision that McNeil is ineligible for

withholding of removal and cancellation of removal. Individuals seeking withholding of

removal may not do so if they are deemed by the Attorney General to have committed a

particularly serious crime. 8 U.S.C. § 1231(b)(3)(ii). During the remanded proceedings

before the IJ, McNeil declined to offer any evidence disputing whether he had committed

a particularly serious crime, and he stated his intent to no longer seek withholding of

removal. Therefore, McNeil failed to exhaust his administrative remedies. 8 U.S.C. §

1252(d). McNeil is also ineligible for cancellation of removal. Cancellation of removal is


   5
    Individuals seeking to obtain withholding of removal may not do so if they are deemed
by the Attorney General to have committed a particularly serious crime. 8 U.S.C. §
1231(b)(3)(ii) (person not removable if the Attorney General decides that “the alien, having
been convicted by a final judgment of a particularly serious crime is a danger to the
community of the United States”). For purposes of clause (ii), an alien who has been
convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an
aggregate term of imprisonment of at least 5 years shall be considered to have committed a
particularly serious crime. The previous sentence shall not preclude the Attorney General
from determining that, notwithstanding the length of sentence imposed, an alien has been
convicted of a particularly serious crime. 8 U.S.C. § 1231(b)(3)(iv). It is presumed a drug
trafficking crime is “a particularly serious crime” regardless of the length of the sentence or
whether the offense was an aggravated felony, but this presumption can be overcome in
certain circumstances. See Matter of Y-L-, 23 I. & N. Dec. 270, 276-77 (BIA 2002).

                                              7
only available to aliens who have resided in the United States continuously for seven years

after being admitted in any status. 8 U.S.C. § 1229b(a)(2). The continuous period ends

when the alien has committed an offense that would render the alien removable under 8

U.S.C. § 1227(a)(2). 8 U.S.C. § 1229b(d)(1)(B). McNeil was convicted of multiple

marijuana convictions in 1989 and 1990, less than two years after being admitted as a lawful

permanent resident, making him removable under 8 U.S.C. § 1227(a)(2)(B)(i) and ineligible

for cancellation of removal.

       We will also deny McNeil’s request that he be permitted to apply for relief under

CAT. McNeil first sought relief under CAT in the remanded proceedings before the IJ on

February 6, 2004. However, McNeil failed to raise his CAT claim before the BIA in the

certified proceedings after the IJ refused to consider the CAT claim. We find McNeil

waived his argument for relief under CAT by not raising it before the BIA. Abdulrahman

v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003); 8 U.S.C. § 1252(d). Although it is

unfortunate McNeil was unable to file a brief before the BIA decided his case, there is no

question that he received a copy of the briefing schedule around August 19, 2005, even if

his counsel did not. McNeil bore some responsibility for communicating with his attorney.

Nor does his counsel’s failure to receive the briefing schedule, due at least in part to her

failure to inform the BIA of her impending move, violate McNeil’s right to due process

where he personally received the notice of certification and a copy of the briefing schedule.

Chong v. District Director, 264 F.3d 378, 386 (3d Cir. 2001) (“The fundamental


                                             8
requirement of due process is the opportunity to be heard at a meaningful time and in a

meaningful manner.”).

       Nonetheless, we will remand this case for further proceedings to determine whether

McNeil timely applied for asylum. Under 8 C.F.R. § 208.4(a)(2), an alien filing for asylum

must do so within one year of the alien’s last arrival in the United States or by April 1, 1997,

whichever is later. If an application for asylum is filed after the deadline has passed, the IJ

or the BIA must determine whether the alien qualifies for an exception to the deadline.

Under Section 298 of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(B),

changed circumstances that materially affect an applicant’s eligibility for asylum or

extraordinary circumstances relating to the delay in filing the application by the deadline

may qualify the alien for an exception.         To qualify, the alien bears the burden of

demonstrating changed or extraordinary circumstances to the satisfaction of the Attorney

General. Since McNeil arrived in the United States in May 1988, he was required to file for

asylum by April 1, 1997. He failed to meet this deadline and only asserted that he wished

to apply for asylum at his hearing before IJ on December 21, 1998. Although the deadline

for applying for asylum had passed, the IJ failed to determine whether McNeil qualified for

an exception to the filing deadline. Instead, the IJ immediately denied McNeil’s application

for asylum on the basis that he was convicted of an aggravated felony. A factual

determination must first be made, on remand, whether McNeil qualifies for an exception to

apply for asylum. If McNeil does, in fact, demonstrate the existence of changed conditions


                                               9
to the satisfaction of the Attorney General to justify his untimely application for asylum, then

his application for asylum must be considered on its merits because the BIA’s finding that

McNeil’s prior conviction for criminal sale of marijuana constitutes an aggravated felony

is erroneous as explained below. Otherwise, if McNeil is unable to demonstrate changed

conditions, then he cannot apply for asylum because his application was untimely.

       Although the IJ and BIA both found that McNeil’s conviction for criminal sale

constituted an aggravated felony, we find this to be incorrect. McNeil has consistently

maintained that his New York conviction for criminal sale did not constitute an aggravated

felony, and he has raised this argument in each administrative proceeding. This Court has

recognized two routes for determining whether a state drug conviction, for deportation

purposes, constitutes an “aggravated felony.” Under the first route (known as the “illicit

trafficking in any controlled substance” route), the drug offense must (1) be a felony under

the state law; and (2) contain a trafficking element, the unlawful trading or dealing of a

controlled substance. Gerbier v. Holmes, 280 F.3d 297, 305 (3d Cir. 2002).6 The second

route (known as the “hypothetical felony” route) requires that the offense, however


  6
     Generally, when determining whether an alien's conviction is for an aggravated felony,
the court may look only to the statutory definition of the offense, and may not consider the
particular facts underlying a conviction. See Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d
Cir.2004). There is, however, an exception to this “categorical” approach that permits a
court to look beyond the face of the statute to the charging instrument where the statute of
conviction is phrased in the disjunctive. Id. at 162-63; see also Valansi v. Ashcroft, 278 F.3d
203, 214 (3d Cir. 2002) (examining underlying facts where “some, but not all” convictions
under statute would qualify as aggravated felony). In this case the record fails to disclose any
of the facts underlying McNeil’s conviction.

                                              10
characterized by the state, be punishable as a felony under the federal Controlled Substances

Act (CSA). Id. at 306. Because McNeil’s convictions were misdemeanors under state law,

the aggravated felony determination must be made under the “hypothetical felony” route.

       McNeil was convicted of violating N.Y. Penal Law § 221.40, which states that “[a]

person is guilty of criminal sale of [marijuana] in the fourth degree when he knowingly and

unlawfully sells [marijuana] except as provided in § 221.35 of this article.” This class A

misdemeanor carries a sentence that “shall not exceed one year.” N.Y. Penal Law §§ 70.15

and 221.40. Under N.Y. Penal Law § 221.35, an individual who “knowingly and unlawfully

sells, without consideration, one or more preparations, compounds, mixtures or substances

containing [marijuana] and the preparations, mixtures or substances are of an aggregate

weight of two grams or less; or one cigarette containing [marijuana]” is penalized for the

criminal sale of marijuana. An offense would not be included in § 221.35 (and would be

included in § 221.40) either if the sale was (1) for consideration; or (2) for an amount of

more than two grams or one cigarette. See N.Y. Penal Law § 221.35. Under New York law,

“sell” is defined as “to sell, exchange, give or dispose of to another, or to offer or agree to

do the same.” N.Y. Penal Law § 220.00.

       An individual may violate § 221.40 without that conviction qualifying as a federal

felony. See Steele, 236 F.3d at 130. If an individual either sells for consideration less than

two grams or one cigarette of marijuana or distributes without consideration more than two

grams or one cigarette of marijuana (but less than 25 grams) then he has violated § 221.40


                                              11
because the crime is not encompassed by § 221.35 (but has not risen to the 25 grams level

of N.Y. Penal Law § 221.45). That state misdemeanor would not be a federal felony if it fell

within the scope of 21 U.S.C. § 841(b)(4). Under § 841(b)(4), an individual who

“distribut[es] a small amount of [marijuana] for no remuneration” shall be punished as if for

simple possession under 21 U.S.C. § 844. A simple possession conviction under § 844 is

punishable by a maximum term of imprisonment of one year, unless the individual has a

prior narcotics conviction, which increases the maximum sentence to a period of two years.

21 U.S.C. § 844(a). Under 18 U.S.C. § 3559(a), a simple possession conviction without a

prior narcotics conviction would be a federal misdemeanor (less than one year

imprisonment), but the two year maximum sentence conviction would be a federal felony.

Thus, a violation of N.Y. Penal Law § 221.40 is not categorically an “aggravated felony”

under 8 U.S.C. § 1101(a)(43)(B).

       This Court’s precedents foreclose McNeil from being considered an aggravated felon

under the “hypothetical felony” route based on his subsequent convictions. See Steele, 236

F.3d at 138; Gerbier, 280 F.3d at 300. In Steele and Gerbier we acknowledged that the

CSA, 21 U.S.C. § 844(a), contains a sentence enhancement if there is a prior drug conviction

under state or federal law that would result in a second misdemeanor conviction being

considered a felony under the CSA. 236 F.3d at 138; 280 F.3d at 300. We held that “a prior

conviction cannot be used to enhance a sentence for purposes of determining whether the

alien has been convicted of an ‘aggravated felony’ when his prior conviction was never


                                             12
litigated as part of the criminal proceeding in the crime for which the alien is being

deported.” Gerbier, 280 F.3d at 300. McNeil’s other misdemeanor convictions were not

so litigated. Therefore, BIA erred when it concluded that McNeil was an aggravated felon.

IV. Conclusion

       For the reasons set forth above, we will affirm, in part, the BIA’s judgment that

McNeil is ineligible for withholding of removal and cancellation of removal. We also find

McNeil ineligible for relief under CAT. On the question of asylum, we will vacate the

BIA’s finding that McNeil’s past conviction of criminal sale of marijuana constituted an

aggravated felony under 8 U.S.C. § 1101(a)(43)(B) and remand this case to the BIA with

instructions to refer the case to the IJ for further proceedings consistent with this opinion.




                                             13
