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


1-9-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3162




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                                                NOT PRECEDENTIAL


           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                         NO. 05-3162
                      ________________

                    MARLON BROWNE,

                                        Petitioner

                              v.

       ATTORNEY GENERAL OF THE UNITED STATES,

                                   Respondent
          ____________________________________

           On Petition for Review of a Decision of the
                Board of Immigration Appeals
             Immigration Judge Walter A. Durling
                   (Agency No. A43 577 406)
         _______________________________________


           Submitted Under Third Circuit LAR 34.1(a)
                            January 5, 2006


Before: BARRY, STAPLETON AND GREENBERG, CIRCUIT JUDGES

                    (Filed January 9, 2006)


                  _______________________

                          OPINION
                  _______________________
PER CURIAM

       Marlon Browne petitions for review of a final order of removal of the Board of

Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition.

       Browne is twenty-four years old, and a native and citizen of Trinidad. He came to

the United States in 1992 as an immigrant. In 2000, Browne pled guilty in the Court of

Common Pleas for Montgomery County, Pennsylvania to the charge of Possession with

Intent to Deliver a Controlled Substance (Cocaine). Browne received a sentence of three

to twenty-three months in prison.

       The Bureau of Immigration and Customs Enforcement charged Browne with being

subject to removal from the United States as an alien convicted of an aggravated felony,

as defined in Section 101(a)(43)(B) of the Immigration and Nationality Act, and a

violation of a law or regulation relating to a controlled substance. After a hearing, the

Immigration Judge concluded that Browne committed an aggravated felony, and ordered

his removal to Trinidad. In June 2003, the BIA affirmed, without opinion, the result of

the Immigration Judge’s decision, making it the final agency determination under the

immigration regulations. 8 C.F.R. § 1003.1(e)(4).

       In January 2005, Browne filed a petition for a writ of habeas corpus in the United

States District Court for the Middle District of Pennsylvania. The District Court stayed

Browne’s removal, and transferred the habeas petition to this Court to be treated as a

petition for review pursuant to the Real ID Act, Pub. Law No. 109-13. We have



                                              2
jurisdiction pursuant to Section 106(c) of the Real ID Act. 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. Tran v. Gonzales, 414 F.3d 464,

467 (3d Cir. 2005).

       In his habeas petition, Browne argues that he did not commit an aggravated felony

because he did not spend more than one year in prison. The term “aggravated felony” is

defined by statute, and includes “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). There are two tests for determining whether a

state drug conviction constitutes an aggravated felony, neither of which considers an

alien’s term of imprisonment.

       The first test tracks the statutory language “illicit trafficking in a controlled

substance,” and requires that (1) the offense is a felony under the law of the convicting

sovereign; and (2) the offense must contain a “trafficking element,” or the unlawful

trading or dealing of a controlled substance. Gerbier v. Holmes, 280 F.3d 297, 313 (3d

Cir. 2002). The second, called the “hypothetical federal felony” route, requires that the

offense be analogous to an offense punishable under one of the federal acts specified in

18 U.S.C. § 924(c)(2) that constitutes a felony under federal law. Id. at 315. The

Immigration Judge appears to have concluded that Browne’s conviction constitutes an

aggravated felony under both tests.



                                               3
       Applying the first test, Browne’s offense is a felony under Pennsylvania law.

Browne was convicted of violating 35 Pa. Stat. § 780-113(a)(30), which prohibits the

manufacture, delivery, or possession with intent to manufacture or deliver, a controlled

substance. By statute, a person who violates this provision with respect to cocaine is

guilty of a felony. 35 Pa. Stat. § 780-113(f)(1.1). In addition, Browne’s crime by

definition includes a trafficking element, satisfying the second requirement of the first

test. Because Browne committed an aggravated felony under this approach, we need not

address whether he satisfies the second test set forth in Gerbier.

       Accordingly, we will deny the petition for review.1




   1
    Browne also argues that his removal should be stayed because he is seeking to
withdraw his guilty plea in state court based upon his attorney’s failure to advise him of
the immigration consequences of his plea. The fact that Browne is seeking relief in state
court, however, does not warrant a stay.

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