                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-5-2006

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Precedential or Non-Precedential: Precedential

Docket No. 05-2786




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                                           PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 05-2786


                     BELITO GARCIA,

                              Petitioner

                              v.

   ATTORNEY GENERAL OF THE UNITED STATES,

                             Respondent


               On Petition for Review from an
          Order of the Board of Immigration Appeals
                   (Board No. A25 303 663)
          Immigration Judge Donald Vincent Ferlise


                   Argued June 15, 2006
              Before: FISHER, CHAGARES
              and REAVLEY,* Circuit Judges.


      *
        The Honorable Thomas M. Reavley, United States
Circuit Judge for the Fifth Circuit, sitting by designation.
                  (Filed September 5, 2006)

Steven A. Morley
Thomas M. Griffin (Argued)
Morley, Surin & Griffin
325 Chestnut Street, Suite 1305-P
Philadelphia, PA 19106
      Attorneys for Petitioner

Kathleen Meriwether (Argued)
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
       Attorney for Respondent



                 OPINION OF THE COURT


FISHER, Circuit Judge.

       Belito Garcia petitions for review from the Board of
Immigrations Appeals’ final order of removal. Garcia’s petition
requires us to determine whether his conviction under section
13(a)(30) of the Pennsylvania Controlled Substance, Drug,
Device and Cosmetic Act (“the Act”), 35 Pa. Stat. Ann. § 780-
113(a)(30), constitutes an “aggravated felony” under relevant
provisions of the Immigration and Nationality Act (“INA”).




                              2
       We have previously held that violations of similar
Delaware and New Jersey statutes do not qualify as aggravated
felonies. See Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002);
Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003). For the reasons
that follow, we conclude that the Pennsylvania Act is
distinguishable from both the Delaware and New Jersey statutes,
and that Garcia’s conviction qualifies as an aggravated felony.
We will therefore deny his petition for review.

                               I.

        Garcia, a resident alien, was arrested in Philadelphia in
April 1996. According to the criminal complaint, which is part
of the administrative record, Garcia sold an amount of marijuana
to an undercover police officer, and later, on the same date,
possessed an amount of marijuana with the intent to deliver. On
September 26, 1996, Garcia pled nolo contendere1 before the
Philadelphia Municipal Court to two counts of manufacturing,
delivering, or possessing with the intent to deliver a controlled
substance, in violation of section 13(a)(30) of the Act, 35 Pa.
Stat. Ann. § 780-113(a)(30), and two counts of knowingly
possessing a controlled substance, in violation of section
13(a)(16) of the Act, 35 Pa. Stat. Ann. § 780-113(a)(16).




       1
       A plea of nolo contendere is a conviction for
immigration purposes. Acosta v. Ashcroft, 341 F.3d 218 (3d Cir.
2003).

                               3
        On December 11, 1996, the Immigration and
Naturalization Service (“INS”)2 issued an order to show cause,
advising Garcia that he was removable from the United States
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), based on his
conviction of an “aggravated felony.”3 An Immigration Judge
(“IJ”) subsequently found that Garcia’s conviction qualified as
an aggravated felony, and that, as a result, he was deemed to
have committed a “particularly serious crime.” Based on that
finding, the IJ denied Garcia’s application for asylum and
withholding of removal, and ordered him removed from the
United States. Garcia appealed the IJ’s order to the Board of
Immigration Appeals (“BIA”).

      In a decision dated October 28, 1999, the BIA held that
Garcia’s aggravated felony conviction created a rebuttable
presumption that he had committed a “particularly serious

       2
       On March 1, 2003, the INS ceased to exist and its
functions were transferred to the newly formed Bureau of
Immigration and Customs Enforcement, within the United States
Department of Homeland Security. See Knapik v. Ashcroft, 384
F.3d 84, 86 n.2 (3d Cir. 2004) (citing Homeland Security Act of
2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116 Stat. 2135).
       3
        The order to show cause also charged Garcia with being
removable based upon his conviction for violating a law relating
to a controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i). The
IJ found Garcia removable based on this section, but that finding
is not challenged in Garcia’s petition for review, which only
concerns whether Garcia has been convicted of an aggravated
felony.

                               4
crime,” so as to render him ineligible for asylum and
withholding of removal under relevant provisions of the INA.
The BIA remanded the case for further proceedings as to
whether Garcia could “overcome the presumption that he had
been convicted of a particularly serious crime,” because the IJ
incorrectly believed that he did not have the discretion to hold
that the aggravated felony was not a particularly serious crime.

       In an oral decision dated July 25, 2001, the IJ again held
that Garcia was removable based on his conviction of an
aggravated felony.4 The IJ also determined that Garcia had
failed to overcome the rebuttable presumption that his
conviction was for a particularly serious crime. Thus, the IJ




       4
         The IJ issued his decision after conducting two
additional hearings. At the first, the IJ questioned Garcia
regarding the nature of his offense. During this questioning,
Garcia purportedly admitted that his conviction was for an
aggravated felony. However, the IJ, noting Garcia’s status as a
layman and the technical nature of the term “aggravated felony,”
expressly found that Garcia had denied that his conviction was
for an aggravated felony. The IJ instead determined, as a matter
of law, that the conviction qualified as an aggravated felony. At
the second hearing, the IJ heard testimony regarding whether
Garcia’s conviction was for a particularly serious crime and
whether Garcia was entitled to deferral of removal under the
United Nations Convention Against Torture (“CAT”).

                               5
held that Garcia was ineligible for asylum and withholding of
removal.5

       The BIA affirmed on March 12, 2003. In response to
Garcia’s argument that his conviction was not for an aggravated
felony, the BIA first noted that it had found Garcia’s conviction
to be an aggravated felony in its decision dated October 28,
1999. The BIA added that the conviction records established the
specific provision of Pennsylvania law under which Garcia was
convicted, and supported a finding that he was convicted of an
aggravated felony.6 The BIA also affirmed on other matters not
relevant to the current petition for review.

       On August 11, 2004, Garcia filed a petition for a writ of
habeas corpus in the United States District Court for the Eastern
District of Pennsylvania, seeking a determination that his
Pennsylvania drug conviction was not an aggravated felony, and

       5
      The IJ also denied Garcia’s petition for deferral of
removal under the CAT on factual grounds.
       6
         In addition, the BIA noted that “at the remanded hearing,
[Garcia] admitted that he was convicted of an aggravated
felony, [ ] and his attorney, at the second hearing, did not contest
this issue.” However, the legal classification of prior
convictions is not a factual proposition susceptible of admission
by a litigant. It is a legal proposition that must be determined by
a court in accordance with legal authority. See Gov’t Employees
Ins. Co. v. Benton, 859 F.2d 1147, 1153 n.11 (3d Cir. 1988)
(date of issue of insurance policy was a legal question which
could not be admitted by the parties).

                                 6
requesting that his case be remanded for further consideration of
his withholding of removal, cancellation of removal, asylum,
and CAT claims. The District Court then transferred the habeas
petition to this Court pursuant to section 106(c) of the REAL ID
Act. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.
2005) (noting that, pursuant to section 106(c), “all habeas
petitions brought by aliens that were pending in the district
courts on the date the REAL ID Act became effective (May 11,
2005) are to be converted to petitions for review and transferred
to the appropriate court of appeals”).

       We have jurisdiction over Garcia’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) (stating 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 Garcia’s legal argument that he was not convicted of an
aggravated felony and his constitutional argument that the IJ and
BIA deprived him of due process of law. See Tran v. Gonzales,
414 F.3d 464, 467 (3d Cir. 2005).

                               II.

        An alien who has been convicted of an aggravated felony
is ineligible for most types of relief provided by the INA, such
as cancellation of removal, see 8 U.S.C. § 1229(a)(3), asylum,
see id. § 1158(b)(2)(A)(ii), (b)(2)(B)(i), and withholding of




                               7
removal, see id. § 1231(b)(3)(B)(ii), (iv); 8 C.F.R. § 208.16.7 In
addition, a finding that an alien has committed an aggravated
felony also limits our review to constitutional and legal
questions. 8 U.S.C. § 1252(a)(2)(C), (D).

       For purposes of drug-related offenses, an “aggravated
felony” means “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).” Id.
§ 1101(a)(43)(B). The question in this case is whether Garcia’s
conviction qualifies as an aggravated felony under this
provision.

        We set forth the framework for making this determination
in Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002). In Gerbier,
we adopted the BIA’s two-route approach, pursuant to which a
state drug conviction may qualify as an aggravated felony under
either of two distinct routes. Id. at 313. Under the first, known
as the “illicit trafficking” route, a felony state drug conviction is
an aggravated felony if it contains a “trafficking element.” Id.
Under the second, the “hypothetical federal felony” route, a state
drug conviction, regardless of its classification, is an aggravated


       7
        Under the provisions relating to asylum and withholding
of removal, the alien is only ineligible for relief upon a
secondary finding that the aggravated felony constitutes a
“particularly serious crime.” Garcia does not challenge the IJ’s
determination that he was convicted of a particularly serious
crime, but rather only the underlying finding that his conviction
was for an aggravated felony.

                                 8
felony if it would be punishable as a felony under the Federal
Controlled Substances Act. Id. at 299.

       In applying the Gerbier approach, and in making
aggravated felony determinations in general, we presumptively
apply the “formal categorical approach.” Singh v. Ashcroft, 383
F.3d 144, 147 (3d Cir. 2004) (citing Taylor v. United States, 495
U.S. 575 (1990)). Under the categorical approach, we “‘must
look only to the statutory definitions of the prior offenses,’ and
may not ‘consider other evidence concerning the defendant’s
prior crimes,’ including, ‘the particular facts underlying [a]
conviction[ ].’” Id. at 147-48 (quoting Taylor, 495 U.S. at 600).

        Certain circumstances, however, permit a departure from
the formal categorical approach. See id. at 148. In Singh, we
engaged in a detailed analysis of when such departure is
appropriate. In our analysis, we noted that aggravated felony
determinations always involve consideration of two statutes: the
federal statute enumerating particular categories of offenses that
constitute aggravated felonies (the “enumerating statute”), and
the criminal statute of conviction (the “statute of conviction”).
Id. at 161.

        In certain circumstances, the enumerating statute itself
invites inquiry into the facts underlying the conviction at issue.
Id. The majority of provisions, however, involve relatively
unitary concepts, like forgery, burglary, and “crime of
violence,” and therefore do not invite inquiry into the underlying
facts. Id. at 161. For example, we have noted that “illicit
trafficking in a controlled substance” is similar to “crime of



                                9
violence” in that neither phrase invites departure from the
categorical approach. Id. at 156 n.4.

       The language of the statute of conviction may also invite
departure from the formal categorical approach. Id. at 162.
Statutes phrased in the disjunctive may invite inquiry into the
record of conviction if it is unclear from the face of the statute
whether the conviction qualifies as an aggravated felony. See
id. Thus, “[w]here some variations meet the aggravated-felony
requisites and others do not, we have . . . allowed further inquiry
to see which variation was actually committed.” Id.

        Based on these observations, we concluded that “[w]hile
the formal categorical approach of Taylor presumptively applies
in assessing whether an alien has been convicted of an
aggravated felony, in some cases the language of the particular
subsection of 8 U.S.C. § 1101(a)(43) at issue will invite inquiry
into the underlying facts of the case, and in some cases the
disjunctive phrasing of the statute of conviction will similarly
invite inquiry into the specifics of the conviction.” Id. at 148.

                               III.

      Having discussed the relevant legal standards for
determining whether a conviction is for an aggravated felony,
we now turn to Garcia’s offense. Section 13(a)(30) of the
Pennsylvania Act provides as follows:

       (a) The following acts and the causing thereof
       within the Commonwealth are hereby prohibited:



                                10
              ....

               (30) Except as authorized by this act, the
       manufacture, delivery, or possession with intent
       to manufacture or deliver, a controlled substance
       by a person not registered under this act, or a
       practitioner not registered or licensed by the
       appropriate State board, or knowingly creating,
       delivering or possessing with intent to deliver, a
       counterfeit controlled substance.

35 Pa. Stat. Ann. § 780-113(a)(30).

        As an initial matter, we address Garcia’s argument that
it is improper to consider the complaint issued in his
Pennsylvania criminal proceeding in determining whether the
statute of conviction permits departure from the formal
categorical approach under Singh.           We disagree.       In
Pennsylvania, a criminal complaint is not merely a police report.
It is the charging instrument, and in this case bears the
imprimatur of the district attorney. The filing of a criminal
complaint is sufficient to initiate criminal proceedings in the
Commonwealth and Pennsylvania law does not require the
subsequent filing of either an information or an indictment if a
plea of guilty or nolo contendere is entered. See Pa. R. Crim. P.
502; Commonwealth v. Mitchell, 372 A.2d 826, 829 (Pa. 1977)
(stating that criminal proceedings begin with presentation of the
complaint to the court). Since the record of conviction includes
the charging instrument, see, e.g., Singh, 383 F.3d at 163, and
the criminal complaint in Garcia’s case is the relevant charging



                               11
instrument, we may appropriately examine that complaint if
departure from the formal categorical approach is appropriate.

        Turning to the merits, we must now determine whether
Garcia’s conviction pursuant to section 13(a)(30) of the Act is
an aggravated felony under either the illicit trafficking route or
the hypothetical federal felony route set forth in Gerbier. For
the reasons that follow, we conclude that Garcia’s state drug
conviction qualifies as an aggravated felony under the illicit
trafficking route.8

         In order to qualify as an aggravated felony under the
illicit trafficking route, a drug conviction must satisfy two
requirements: (1) the offense must be a felony under the law of
the convicting sovereign, and (2) the offense must contain a
“trafficking element.” Gerbier, 280 F.3d at 313 (citing In re
Davis, 20 I. & N. Dec. 536 (BIA 1992)). A violation of section
13(a)(30) of the Act is a felony pursuant to 35 Pa. Stat. Ann. §
780-113(f). Therefore, the first requirement of the illicit
trafficking route is clearly satisfied.

       The more interesting question is whether the state crime
contains a “trafficking element.” See Gerbier, 280 F.3d at 313.
In order for a state drug conviction to contain a trafficking
element, it must involve “the unlawful trading or dealing of a
controlled substance.” Id. at 305 (citing Davis, 20 I. & N. Dec.
at 541).


       8
        We therefore do not need to address the hypothetical
federal felony route.

                               12
        The Pennsylvania statute under which Garcia was
convicted is disjunctive, and therefore departure from the formal
categorical approach is appropriate.9 See Singh, 383 F.3d at
162. Thus, we may examine the charging instrument to
determine whether Garcia’s conviction contains a trafficking
element. See id. at 163. The criminal complaint states: “the
defendant unlawfully sold and delivered a controlled substance,
to wit, marijuana to an undercover police officer, and at a latter
time on the same date the [defendant] possessed an additional 38
packets of marijuana (PNW: 2.0 grams) in a quantity and under
circumstances indicating intent to deliver . . . .” (App. at 43.)


       9
         As we stated in Singh, a statute need not be formally
divided into separate subsections in order to be considered
disjunctive for these purposes. Singh, 383 F.3d at 163. Rather,
the key is whether the provision is disjunctive in a relevant
sense. Here, the Pennsylvania statute describes three distinct
offenses: manufacture, delivery, and possession with the intent
to deliver or manufacture. Based on the broad scope of section
13(a)(30), it appears that the section may encompass conduct
that does not involve trading or dealing. In particular, it is not
clear that every violation of the manufacturing provision
involves trading or dealing. For example, there may be
circumstances in which a defendant simply manufactured drugs
for his own personal use. As a result, it is unclear from the face
of the statute whether a conviction under the section
automatically qualifies as an aggravated felony. Therefore, the
statute is disjunctive in a relevant sense and departure from the
categorical approach is appropriate under Singh. 383 F.3d at
162.

                               13
Thus, it is clear from the criminal complaint that Garcia pled
guilty to delivery and possession with the intent to deliver.

        In Gerbier, we noted that “distribution, solicitation, [and]
possession with intent to distribute” suggest trading or dealing
in a controlled substance. 280 F.3d at 313. Since Garcia pled
guilty to delivery and possession with the intent to deliver, the
Pennsylvania equivalent of distribution and possession with the
intent to distribute, his conviction indicates that he was trading
or dealing in a controlled substance. See id. Moreover, the
criminal complaint clearly establishes that Garcia did in fact sell
drugs to an undercover officer. For these reasons, we conclude
that Garcia’s Pennsylvania drug conviction is an aggravated
felony under the illicit trafficking route of Gerbier.

                                IV.

      Garcia’s Pennsylvania drug conviction is an aggravated
felony under the illicit trafficking route as enunciated in
Gerbier. Accordingly, we will deny the petition for review.10

       10
        Garcia also raises two due process arguments, which are
without merit. The first is that the IJ violated Garcia’s due
process rights by bullying him into admitting that he had been
convicted of an aggravated felony. This argument is not
supported by the record. The IJ did not badger Garcia into
admitting that he had been convicted of an aggravated felony –
instead he properly recognized that a layperson cannot fully
understand legal terms of art, found that Garcia had denied that
he had been convicted of an aggravated felony, and made the
determination as a matter of law. Moreover, the Attorney

                                14
General does not in any way seek to bind Garcia to his
purported admission. Therefore, this argument must fail.
       The second due process argument raised by Garcia is that
the BIA violated his due process rights by failing to apply
relevant law relating to the aggravated felony determination.
Although the BIA’s discussion of the relevant law was terse, we
find no error in it, nor do we find a due process violation.
Therefore, this argument must fail as well.

                              15
