                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-4615
                                      ___________

                             LLOYD ANTHONY MILLER,
                                        Petitioner

                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                     ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                                    (A031-279-696)
                    Immigration Judge: Honorable Walter A. Durling
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 20, 2011

      Before: FUENTES, GREENAWAY, JR., and GREENBERG, Circuit Judges

                              (Opinion filed: July 25, 2011)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM.

       Lloyd Anthony Miller, a native and citizen of Jamaica, petitions for review of a

final order of removal entered by the Board of Immigration Appeals (“BIA”). For the

reasons that follow, we will deny the petition for review.
                                             1
                                             I.

       Miller, currently age fifty-five, entered the United States in 1972 as a lawful

permanent resident. He served in the United States Army from August 1974 to August

1975. In 1982, Miller was convicted in the Philadelphia, Pennsylvania, Municipal Court

of possession of a controlled substance, in violation of 35 Pa. Cons. Stat. Ann. § 780-

113(a)(16). In 1983, Miller pled guilty in the same court to delivery of a controlled

substance (marijuana), in violation of 35 Pa. Cons. Stat. Ann. § 780-113(a)(30). In 1999,

Miller pled guilty in a New Jersey state court to third-degree theft from a person, in

violation of N.J. Stat. Ann. § 2C:20-3.

       In 2009, after an arrest for driving under the influence, Miller was brought to the

attention of the Department of Homeland Security (“DHS”), which served a notice to

appear charging removability due to the above-mentioned criminal offenses under 8

U.S.C. § 1227(a)(2)(A)(iii) (conviction for an aggravated felony as defined in 8 U.S.C. §

1101(a)(43)(B)), and 8 U.S.C. § 1227(a)(2)(B)(i) (conviction for a controlled substance

offense). DHS later served notice of an additional charge of removability under 8 U.S.C

§ 1227(a)(2)(A)(ii) (conviction for two or more crimes involving moral turpitude).

       On January 6, 2010, Miller appeared with counsel at a hearing before an

Immigration Judge (“IJ”). Although Miller seemed to concede at the hearing that he was

removable as charged under § 1227(a)(2)(B)(i) for a controlled substance offense, see

A.R. at 59, the IJ never accepted the concession and did not order removal on that basis.

Miller challenged the remaining grounds for removal, including the charge that his 1983
                                             2
conviction for delivery of a controlled substance constitutes an aggravated felony under §

1227(a)(2)(A)(iii). Miller did not express fear of returning to Jamaica or submit an

application for relief from removal on that basis.

       In March 2010, while the removal proceeding was pending, Miller submitted an

application to United States Citizenship and Immigration Services (“USCIS”) seeking to

obtain naturalization based on his service in the United States Army. USCIS denied the

application on the grounds that (i) removal proceedings were pending against Miller, and

(ii) Miller failed to demonstrate his good moral character, citing charges of driving under

the influence, assault, and recklessly endangering another person that were pending

against Miller stemming from his 2009 arrest.

       Thereafter, the IJ determined from the evidence of record that there was “a slight

remuneration for [Miller]‟s delivery of marijuana” in the 1983 offense, A.R. at 38, and

concluded, therefore, that the government had sustained its burden in showing that the

1983 offense is an aggravated felony under § 1227(a)(2)(A)(iii). The IJ ordered removal

to Jamaica based on the aggravated felony determination.1

       Miller, with the assistance of a different lawyer, appealed to the BIA and raised

three contentions in his notice of appeal: (1) he expressed a desire to apply for

cancellation of removal; (2) he argued that the IJ failed to comply with Matter of Recinas,

23 I. & N. Dec. 467 (BIA 2002); and (3) he claimed that the IJ “abused his discretion.”


   1
    It is undisputed that the IJ did not sustain the charges of removability under 8 U.S.C.
   §§ 1227(a)(2)(A)(ii) and (a)(2)(B)(i). See Respondent‟s Br. at 10 n.7.
                                              3
A.R. at 27. Miller did not file an appellate brief.

       The BIA dismissed the appeal. It found no error in the determination that the 1983

conviction is an aggravated felony under § 1227(a)(2)(A)(iii) because the offense

involved illicit trafficking in a controlled substance. (The BIA made no finding regarding

the other charges of removability.) The BIA further found that Miller is ineligible for

most forms of relief, including cancellation of removal, due to the aggravated felony

conviction. The BIA observed that Miller expressed no fear of returning to Jamaica.

Miller timely filed a pro se petition for review in this Court.

                                              II.

       We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of

removal. While generally we lack jurisdiction over a petition for review if the alien, as

here, is removable due to an aggravated felony conviction, see 8 U.S.C. § 1252(a)(2)(C),

we retain jurisdiction over constitutional claims and questions of law. 8 U.S.C. §

1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005).

       The primary “question of law” that Miller presents for our review is whether the

BIA erred in determining that his 1983 conviction for delivery of a controlled substance

constitutes an aggravated felony. According to Miller, the evidence does not support the

aggravated felony determination, and therefore he should be eligible to apply for a

cancellation of removal. Exercising our “jurisdiction to determine de novo whether

[Miller‟s] conviction constituted an aggravated felony,” Evanson v. Att‟y Gen., 550 F.3d


                                              4
284, 288 (3d Cir. 2008), we discern no error in the BIA‟s determination.2

       An aggravated felony is defined 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). We have explained

that a state drug conviction constitutes an aggravated felony “if (a) it would be punishable

as a felony under the federal Controlled Substances Act, or (b) it is a felony under state

law and includes an illicit trafficking element.” Evanson, 550 F.3d at 288. Accordingly,

“we apply two independent tests for determining whether a state court drug conviction

constitutes an aggravated felony: the „illicit trafficking element‟ route and the

„hypothetical federal felony‟ route.” Id. At 288-89.

       In Evanson, we considered the statute at issue here (35 Pa. Stat. Ann. § 780-


   2
     Respondent contends that, because Miller raised no challenge to his removability
   before the BIA, he failed to exhaust administrative remedies under 8 U.S.C. §
   1252(d)(1), leaving this Court without jurisdiction to review whether the 1983
   conviction constitutes an aggravated felony. We conclude that Miller satisfied the
   exhaustion requirement. While Miller did not expressly challenge his removability
   before the BIA, he did request an opportunity to apply for cancellation of removal,
   which he had been precluded from seeking by virtue of the IJ‟s aggravated felony
   determination. See Evanson, 550 F.3d at 287 n.2. In addressing Miller‟s appeal on
   the merits, the BIA expressly reviewed, and found no error in, the determination that
   Miller‟s 1983 offense is an aggravated felony, and further held that, “[a]s a[n LPR]
   convicted of an aggravated felony, [Miller] is ineligible for most forms of relief from
   removal, including … cancellation of removal[.]” A.R. at 3. On this record, even if
   we assume that Miller‟s notice of appeal did not adequately alert the BIA of his desire
   to challenge the aggravated felony determination, the BIA reached the merits of the
   issue nonetheless. Accordingly, we have jurisdiction over Miller‟s challenge to the
   BIA‟s aggravated felony determination. See Lin v. Att‟y Gen., 543 F.3d 114, 126 (3d
   Cir. 2008) (holding that because “the BIA sua sponte addressed and ruled on the
   unraised issue … we have jurisdiction to consider the petition for review”).
                                              5
113(a)(30)) and observed, in applying the hypothetical federal felony test, that “[a] state

marijuana conviction is … only equivalent to a federal drug felony if the offense involved

payment or more than a small amount of marijuana.” Evanson, 550 F.3d at 289. In

Jeune v. Attorney General, 476 F.3d 199 (3d Cir. 2007), we considered whether a

conviction under § 780-113(a)(30) is analogous to a violation of 21 U.S.C. §

841(b)(1)(D), and “[w]e found that distributing a small amount of marijuana for no

remuneration could be prosecuted under the Pennsylvania statute, and thus that we could

not determine that it was equivalent to a federal drug felony without more information

about the conviction.” Evanson, 550 F.3d at 289. In addition, under the illicit trafficking

element test, “a state felony drug conviction constitutes an aggravated felony if it

contains a trafficking element,” id., and because § 780-113(a)(30) may encompass

conduct that does not involve trading or dealing (such as manufacturing for personal use),

“more than the bare fact of conviction” is needed to satisfy the illicit trafficking element.

Jeune, 476 F.3d at 204.

       In short, “under either the hypothetical federal felony test or the illicit trafficking

element test, a conviction under [§ 780-113(a)(30)] is not necessarily an aggravated

felony.” Evanson, 550 F.3d at 290. In Garcia v. Attorney General, 462 F.3d 287 (3d Cir.

2006), we addressed a § 780-113(a)(30) offense under the illicit trafficking element test

and observed that a violation this statute is a felony under Pennsylvania law, and

therefore “the first requirement of the illicit trafficking route is clearly satisfied.” Id. At

293. Turning to whether the offense contained a “trafficking element,” we concluded in
                                                6
Garcia that “we may examine the charging instrument to determine whether [petitioner]‟s

conviction” meets this requirement. Id. At 293; see also Evanson, 550 F.3d at 293

(explaining that “the criminal information, as the relevant charging document, is an

appropriate record to consider,” but “a court applying the modified categorical approach

may only consider the charging document to the extent that the petitioner was actually

convicted of the charges”).

       In the present case, the government submitted a verified copy of the relevant

charging instrument (the “criminal complaint”) from Miller‟s 1983 conviction. See A.R.

at 125; see also Garcia, 462 F.3d at 292 (explaining that “[s]ince the record of conviction

includes the charging instrument, and the criminal complaint in Garcia‟s case is the

relevant charging instrument, we may appropriately examine that complaint”) (citation

omitted). The criminal complaint reflects that, on or about September 5, 1982, Miller

“did deliver to Pol. BENNETT #9904, TWO (2) MANILA ENVELOPES, EACH

CONTAINING MARIHUNA [sic] (ANALYZED BY POL. CHEMIST KERZNER) for

$10.00 US CURRENCY.” A.R. at 125. Miller was charged with three offenses: (1)

delivery of a controlled substance, (2) possession with the intent to deliver a controlled

substance, and (3) knowing and intentional possession of a controlled substance. Id. A

separate document from the verified state record titled “criminal transcript” memorializes

the disposition of Miller‟s case. See A.R. at 124. The criminal transcript reflects that

Miller pled guilty to only one of the three charged offenses, “Del. Of C/S,” which the

parties do not dispute is shorthand for “delivery of a controlled substance.” Id. At 124.
                                              7
The prosecution was withdrawn on the other charges. Id. Miller was sentenced to fines

and costs totaling $250.00. Id.

       This record “make[s] it clear that [Miller] actually pleaded guilty to selling or to

exchanging the marijuana.” Thomas v. Att‟y Gen., 625 F.3d 134, 148 (3d Cir. 2010). In

particular, it is clear from the evidence that Miller pled guilty under § 780-113(a)(30) to

delivering two envelopes containing marijuana to an undercover officer in exchange for

ten dollars. An offense contains a trafficking element when it involves “the unlawful

trading or dealing of a controlled substance.” Gerbier v. Holmes, 280 F.3d 297, 305 (3d

Cir. 2002). “Essential to the concept of „trading or dealing‟ is activity of a business or

merchant nature, thus excluding simple possession or transfer without consideration.”

Steele v. Blackman, 236 F.3d 130, 135 (3d Cir. 2001). While Miller‟s offense may have

involved a “small amount” of marijuana,3 the offense, nevertheless, plainly involved

trading or dealing, and therefore contained a trafficking element. See Garcia, 462 F.3d at

293. The BIA, therefore, did not err in holding that Miller is removable as an aggravated

felon under § 1227(a)(2)(A)(iii), and, as a result the conviction, he is ineligible to seek

cancellation of removal. See 8 U.S.C. § 1229b(a)(3); Catwell, 623 F.3d at 209.4


   3
     See Catwell v. Att‟y Gen., 623 F.3d 199, 209 (3d Cir. 2010) (“Congress
   contemplated and intended „small amount‟ to mean the amount of marijuana an
   individual would be likely to use on a single occasion, in a social setting.”).
   4
     Miller also claims that he is entitled to relief because his 1983 conviction was
   entered in violation of Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Miller failed,
   however, to exhaust any Padilla-related issue, and the BIA did not address any such
   issue on its own initiative. As such, we lack jurisdiction to review this claim.
                                              8
                                           III.

      For the reasons stated, we will deny the petition for review. Respondent‟s motion

to strike the non-record evidence attached to Miller‟s opening brief is granted; we have

limited our review, as we must, to the contents of the administrative record. See 8 U.S.C.

§ 1252(b)(4)(A).




                                            9
