PS1-189                                                      NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                      No. 14-1808
                                     ____________

                         LEON HUGH GAVASKAR MATTIE,
                                           Petitioner,

                                            v.

                           ATTORNEY GENERAL OF THE
                          UNITED STATES OF AMERICA,
                                                 Respondent
                        __________________________________

                         On a Petition For Review of an Order
                         of the Board of Immigration Appeals
                             (Agency No. (A043-216-217)
                      Immigration Judge: Margaret R. Reichenberg
                       __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 19, 2014

               Before: FISHER, VANASKIE and GARTH, Circuit Judges

                           (Opinion filed: September 29, 2014 )
                                      ____________

                                       OPINION
                                     ____________


PER CURIAM

       Petitioner Leon Hugh Gavaskar Mattie (“Mattie”) petitions for review of the

Board of Immigration Appeals’ final order of removal. For the reasons that follow, we

will deny the petition for review.

       Mattie, a Jamaican and lawful permanent resident of the United States, was

convicted following a guilty plea in the New Jersey Superior Court of manufacturing,
distributing, or possessing with intent to distribute “one ounce [28.35 grams] or more but

less than five pounds” of marijuana, in violation of N.J. Stat. Ann. §§ 2C:35-5(a) and

2C:35-(5)(b)(11). He was sentenced to a term of imprisonment of 3 years. A Notice to

Appear for removal proceedings was issued and, ultimately, Mattie conceded that he was

removable under Immigration & Nationality Act (“INA”) § 237(a)(2)(B)(i), 8 U.S.C. §

1227(a)(2)(B)(i), as an alien who after admission was convicted of an offense relating to

a controlled substance, other than a single offense involving possession for one’s own use

of 30 grams or less of marijuana.

         Mattie, represented by Legal Services of New Jersey, applied for cancellation of

removal, INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3), contending that possession with

intent to distribute marijuana was not an aggravated felony that rendered him statutorily

ineligible, and that he merited, as a matter of discretion, relief from removal. The

Government submitted Mattie’s conviction records, which included the judgment of

conviction, the indictment, an evidence receipt, a lab report, the guilty plea and

sentencing transcripts, the presentence report, an intake form, and a signed guilty plea

form. At his merits hearing, among other things, Mattie acknowledged that the amount

of marijuana seized from the apartment was 63.73 grams, but he testified that only a

small amount of it – 3-5 “nickel bags” – belonged to him for his personal use; the rest

belonged to others in the apartment, specifically the co-defendants. He testified that he

was sure that the amount of marijuana that actually belonged to him was less than 30

grams.

         The Immigration Judge denied relief, concluding that Mattie had not shown by a

preponderance of the evidence that he was statutorily eligible for cancellation of removal.

                                              2
Addressing the essential question whether Mattie had met his burden of proving by a

preponderance of the evidence that he had not been convicted of a disqualifying

aggravated felony, the IJ reasoned that he would have to show that his conviction under §

2C:35-5b(11) involved a “small amount of marijuana for no remuneration,” see 21 U.S.C.

§ 841(b)(4) (exception for person who violates subsection § 841(a)(1) by distributing a

“small amount” of marijuana for no remuneration, and treating that person as provided

for in 21 U.S.C. § 844). In endeavoring to meet his burden of proof, he was entitled to

present evidence outside of the record of conviction pursuant to Matter of Castro

Rodriguez, 25 I. & N. Dec. 698 (BIA 2012). Moreover, the guiding standard for what

constitutes a small amount would be 30 grams or less of marijuana, see id. at 703.

       The IJ then found that Mattie had pleaded guilty to possessing at least one ounce

of marijuana, or 28.35 grams, and that the evidence of record established that the amount

of the seized marijuana actually was 63.73 grams. The IJ found that 63.73 grams of

marijuana is not a “small amount” within the meaning of the law. The IJ was not

persuaded by Mattie’s testimony that he was in possession of no more than 30 grams of

marijuana with no intent to sell it, noting that his testimony that he possessed only 3-5

“nickel bags,” which he estimated would weigh less than a gram each, was actually

contrary to his guilty plea to possessing at least an ounce, or 28.35 grams of marijuana.

Moreover, Mattie did not present any other evidence to corroborate his claim that only a

part of the 63 grams was attributable to him. After lodging an appeal with the Board of

Immigration Appeals, Mattie, through his counsel, filed a motion to remand based on

Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013), which the Board granted, noting that

Moncrieffe rejected the procedures set forth in Matter of Castro-Rodriguez.

                                             3
       On remand, Mattie argued, again through counsel, that possession with intent to

distribute at least one ounce of marijuana was not categorically an aggravated felony,

because § 2C:35-5(b)(11) would allow the conviction of one who had distributed as little

as five grams of marijuana for no remuneration. A.R. 148. Mattie argued that

consideration by the agency of the evidence regarding the actual conduct relating to his

conviction was prohibited by Moncrieffe.

       The IJ held oral argument on September 19, 2013, after which Mattie’s application

for cancellation of removal again was denied. The IJ again held that Mattie had the

burden of proof to show that possession with intent to deliver was not categorically an

aggravated felony, citing with approval Young v. Holder, 697 F.3d 976 (9th Cir. 2012),

Salem v. Holder, 647 F.3d 111, 115 (4th Cir. 2011), and Garcia v. Holder, 584 F.3d 1288,

1289-90 (10th Cir. 2009). However, under Moncrieffe, Mattie need only show that the

least culpable conduct to support a conviction under § 2C:35-5b(11) would not qualify as

an aggravated felony. Moreover, a single conviction for distributing a small amount of

marijuana for no remuneration would be deemed a simple possession offense subject to

the provisions of 21 U.S.C. § 844, and would, therefore, be a misdemeanor, not a felony,

under federal law. See Moncrieffe, 133 S. Ct. at 1693-94. Applying Moncrieffe, the IJ

found that Mattie had pleaded guilty to, and was convicted of, possession with intent to

distribute at least one ounce, or 28.35 grams, of marijuana. Although 30 grams is a

“useful guidepost” for what constitutes a small amount of marijuana, the Supreme Court

in Moncrieffe expressly declined to decide this issue. The IJ turned to our decision in

Catwell v. Att’y Gen. of U.S., 623 F.3d 199 (3d Cir. 2010), where we suggested that a

“small amount” of marijuana is the amount that one person would use on one occasion in

                                            4
a social setting, and is thus much less than 30 grams. The IJ noted that Moncrieffe

involved 2-3 marijuana cigarettes, and reasoned that the 28.35 grams called for in §

2C:35-5b(11) could not be a “small amount” because it equaled, under the “calculus”

used in Catwell, at least 55 marijuana cigarettes. The IJ again ordered that Mattie be

removed to Jamaica.

       Still represented by Legal Services of New Jersey, Mattie again appealed to the

Board, contending that N.J. Stat. Ann. § 2C:35-5b(11), like the Georgia statute addressed

in Moncrieffe, proscribes conduct punishable only as a misdemeanor, and therefore

Mattie was statutorily eligible for cancellation of removal. Mattie argued that, as in

Moncrieffe, the aggravated felony inquiry relating to a marijuana distribution statute can

only include the necessary elements for a conviction under the state statute, and not the

actual conduct or facts of an applicant’s particular conviction.

       On March 13, 2014, the Board dismissed the appeal. The Board held that Mattie’s

offense categorically qualified as an aggravated felony, even under Moncrieffe. The

Board explained that Moncrieffe involved the transfer of a small amount of marijuana for

no remuneration, but to be convicted under N.J. Stat. Ann. § 2C:35-5(b)(11), Mattie was

required to have in his possession, with an intent to distribute, “one ounce or more but

less than five pounds,” id. Mattie’s argument that § 2C:35-5(b)(11) would allow the

conviction of one who had distributed as little as five grams of marijuana was plainly

wrong, because, to be convicted under the state statute, one would have to have in his

possession, with an intent to distribute, at least one ounce, or 28.25 grams; 5 grams would

not result in a conviction. The Board cited Catwell, 623 F.3d at 209, and noted that, in

reviewing the legislative history of the Controlled Substances Act (“CSA”), we had

                                             5
observed that the exception in § 841(b)(4) applies to social sharing situations involving

no more than a few grams of marijuana. The Board stated that, although 30 grams or less

of marijuana is sometimes a “useful guidepost” for what constitutes a small amount of

marijuana, this guidepost should not apply to a situation like Mattie’s involving

possession with intent to distribute between one ounce and 5 pounds of marijuana.

       Mattie has appealed the Board’s decision pro se. We have jurisdiction under 8

U.S.C. § 1252(a)(2)(D) (review of constitutional claims or questions of law not

precluded); Pierre v. Att’y Gen. of U.S., 528 F.3d 180, 184 (3d Cir. 2008). On June 19,

2014, we granted Mattie’s motion for a stay of removal and advised him that we would

entertain a request for appointment of his Legal Services of New Jersey counsel. Mattie

has not asked us to appoint him counsel. In his pro se brief, he argues that he has met his

burden to show that he has not been convicted of an aggravated felony, and relies on

Moncrieffe and Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003), where we held that

N.J. Stat. Ann. § 2C:35-5(b)(11), does not contain sale for remuneration as an element.

       We will deny the petition for review. Where, as here, the Board agrees with the

IJ’s analysis and adds analysis of its own, we review the decisions of both the Board and

the IJ. See Sandie v. Att’y Gen. of U.S., 562 F.3d 246, 250 (3d Cir. 2009). In order to be

eligible for cancellation of removal under 8 U.S.C.§1229b(a), the applicant must

establish that he “(1) has been lawfully admitted for permanent residence for not less than

five years, (2) has resided in the United States continuously for seven years after having

been admitted in any status, and (3) has not been convicted of an aggravated felony.” 8

U.S.C. § 1229a(1)-(3). “An alien bears the burden of establishing his eligibility for

discretionary cancellation of removal.” Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462,

                                             6
464 n.2 (3d Cir. 2009). See also 8 U.S.C. § 1229a(c)(4)(A)(i); 8 C.F.R. § 1240.8 (“The

respondent shall have the burden of establishing that he or she is eligible for any

requested benefit or privilege…”). “If the evidence indicates that one or more of the

grounds for mandatory denial of the application for relief may apply, the alien shall have

the burden of proving by a preponderance of the evidence that such grounds do not

apply.” 8 C.F.R. § 1240.8(d).

       The New Jersey statute at issue here provides that “it shall be unlawful for any

person knowingly or purposely: (1) To manufacture, distribute or dispense, or to possess

or have under his control with intent to manufacture, distribute or dispense, a controlled

dangerous substance or controlled substance analog.” N.J. Stat. Ann. § 2C:35-5(a)(1).

Any person who violates subsection (a) with respect to: (11) Marijuana in a quantity of

one ounce or more but less than five pounds . . . is guilty of a crime of the third degree.”

See id. at § 2C:35-5(b)(11). Because Mattie was seeking discretionary relief, he had the

burden of proving that he had not been convicted of a disqualifying aggravated felony.

Mattie was required to prove by a preponderance of the evidence that his § 2C:35-

5(b)(11) conviction under state law is not an aggravated felony under the INA.

       In his pro se brief on appeal, Mattie has cited our decision in Wilson, 350 F.3d at

381-82, where we held that § 2C:35-5(b)(11) does not contain sale for remuneration as an

element of the offense, arguing that it is dispositive of the only issue presented by his

petition for review. In Wilson, we held that the alien’s § 2C:35-5(b)(11) conviction was

not analogous to a conviction under 21 U.S.C. § 841(a)(1) because § 841(b)(4) provided

an exception for a person who violates § 841(a) by distributing a small amount of

marijuana for no remuneration, see id. at 381. We did not decide the “small amount”

                                              7
issue, however, and we remanded the matter for a determination whether the state court

conviction was an aggravated felony under the INA because it was a drug trafficking

crime, see id. at 382. Wilson thus does not resolve the issue presented by this petition for

review.

       We agree with the agency that Mattie failed to meet his burden of proof to show

that he has not been convicted of an aggravated felony, as required for cancellation of

removal, 8 U.S.C. § 1229a(3). A state offense constitutes a felony punishable under the

Controlled Substances Act (“CSA”), and thus is an aggravated felony under the INA,

only if it proscribes conduct punishable as a felony under the CSA. The CSA makes it a

felony to knowingly or intentionally “manufacture, distribute, or dispense,” any amount

of marijuana, except that “distributing a small amount of marijuana for no remuneration”

is treated as a misdemeanor as provided in 21 U.S.C. § 841(a)(1), (b)(4). “A state

marijuana conviction is therefore only [categorically] equivalent to a federal drug felony

if the offense involved payment or more than a small amount of marijuana.” Evanson v.

Att’y Gen. of U.S., 550 F.3d 284, 289 (3d Cir. 2008). In Moncrieffe, the Government

bore the burden of proof to show that the alien was removable as charged, and argued

that the alien’s Georgia possession with intent to distribute marijuana conviction,

involving 1.3 grams of marijuana found in his car by the police, was an aggravated felony

because possession of marijuana with intent to distribute is a CSA offense, 21 U.S.C. §

841(a), punishable by up to five years’ imprisonment under § 841(b)(1)(D). The Fifth

Circuit Court of Appeals agreed, rejecting Moncrieffe’s reliance on § 841(b)(4).

       The Supreme Court granted certiorari and addressed whether the INA’s definition

of aggravated felony encompassed “a state criminal statute that extends to the social

                                             8
sharing of a small amount of marijuana.” Moncrieffe, 133 S. Ct. at 1682. The Court

discussed the penalty provisions -- § 841(b)(1)(D) and § 841(b)(4) – and stated: “These

dovetailing provisions create two mutually exclusive categories of punishment for CSA

marijuana distribution offenses: one a felony, and one not. The only way to know

whether a marijuana distribution offense is ‘punishable as a felony’ under the CSA, is to

know whether the conditions described in paragraph (4) are present or absent.” 133 S.

Ct. at 1686 (footnote and citation omitted). Moncrieffe’s conviction standing alone did

not reveal either whether remuneration or more than a small amount of marijuana was

involved, and thus the conviction could have corresponded to either a felony or a

misdemeanor offense under the CSA. The ambiguity on this point meant that the

conviction did not necessarily involve facts that corresponded to an offense punishable as

a felony under the CSA, see id. at 1687, and, therefore, the Government failed to prove

that Moncrieffe was removable as charged.

       Applying Moncrieffe, we note that the statute at issue here, N.J. Stat. Ann. §

2C:35-5(b)(11), even if it does not require sale for remuneration, specifically references

the smallest amount of marijuana required for a conviction, one ounce or 28.35 grams.

Mattie’s conviction, standing alone, thus reveals the amount of marijuana involved.

Because § 2C:35-5(b)(11) contains as an element of the offense a specific amount of

marijuana, Mattie must show that the minimum amount specified by the statute, one

ounce, or 28.35 grams, is a “small amount” of marijuana under the CSA. The Supreme

Court left open in Moncrieffe the meaning of “small amount,” noting that the CSA does

not define the term. 133 S. Ct. at 1686 n.7. To answer the question that Moncrieffe left

open, the Board properly turned to our decision in Catwell, 623 F.3d 199. Catwell holds

                                             9
that 120.9 grams is not a “small amount” of marijuana for purposes of 21 U.S.C. §

841(b)(4), but we also noted in Catwell this bit of CSA legislative history: “The

comments made during consideration of the amendment lead us to conclude that

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. [T]hat amount

would be no more than one or two marijuana cigarettes, or a few grams of marijuana.”

623 F.3d at 209. We noted that, under the federal sentencing Guidelines, one marijuana

cigarette is equivalent to .5 grams, see id. (citing U.S.S.G. § 2D1.1).

       Since 28.35 grams of marijuana is quite a bit more than “a few grams of

marijuana,” it certainly appears that § 2C:35-5(b)(11), although it does not include sale

for remuneration as an element of the proscribed conduct, Wilson, 350 F.3d at 381-82,

involves more than a “small amount” of marijuana, see Evanson, 550 F.3d at 289 (“A

state marijuana conviction is therefore only [categorically] equivalent to a federal drug

felony if the offense involved payment or more than a small amount of marijuana.”).

Accordingly, we seriously doubt that Mattie has met his burden of proof to show that he

has not been convicted of an aggravated felony and thus is statutorily eligible for

cancellation of removal.

       We acknowledge that one ounce or 28.35 grams, see § 2C:35-5(b)(11), is less than

the Board’s “useful guidepost” of 30 grams, and that there is thus room for debating

whether 28.35 grams is a “small amount” of marijuana, see, e.g., 8 U.S.C. §

1227(a)(2)(B)(i) (providing for an exemption from removal for controlled substance

offender aliens who have possessed “for one’s own use … 30 grams or less of

marijuana.”) (emphasis added). See also 8 U.S.C. § 1182(h) (Attorney General may

                                             10
waive inadmissibility where conviction is “a single offense of simple possession of 30

grams or less of marijuana”). But we recently joined other federal appeals courts in

holding that an “inconclusive record is insufficient to satisfy a noncitizen’s burden of

proving eligibility for discretionary relief.” Syblis v. Att’y Gen. of U.S., --- F.3d ---,

2014 WL 4056557, at *5 (3d Cir. August 18, 2014). In doing so, we cited with approval

the very cases cited by the IJ, Young, 697 F.3d 976, Salem, 647 F.3d 111, and Garcia,

584 F.3d 1288. In Syblis, the noncitizen applicant had a conviction for possession of

drug paraphernalia under Va. Code Ann. § 54.1–3466, and argued that Va. Code Ann. §

54.1–3466 does not relate to controlled substances under 8 U.S.C. § 1182(a)(2)(A)(i)(II),

and thus he was eligible for a waiver of inadmissibility under § 1182(h). Because we

resolved this issue in favor of the Government, see id. at *5, the noncitizen applicant then

argued that the substance involved in his conviction was not defined by federal law. The

record, however, was inconclusive with respect to the specific substance involved. We

held that the “burden-shifting scheme associated with removal proceedings” would

determine the outcome, id. at *5, and, because the record was inconclusive, the

noncitizen applicant could not prevail.

       Although Syblis involved a purely factual issue concerning the specific substance

involved and an inadequate record of conviction, its reasoning applies here. Because

Mattie was convicted of possession with intent to deliver at least one ounce of marijuana,

he had to prove that one ounce, or 28.35 grams, is a “small amount” of marijuana under

the CSA, 21 U.S.C. § 841(a)(1) and (b)(4), in order to establish that he has not been

convicted of an aggravated felony. The agency decided that issue adversely to him,

concluding that a “small amount” under the CSA is the amount usually involved in social

                                              11
sharing, i.e., “no more than a few grams.” See Catwell, 623 F.3d at 208-09 (reviewing

legislative history of 21 U.S.C. § 841(b)(4)). Mattie has contended in his pro se brief that

28 grams is a small amount under our decision in Wilson, but we have rejected that

argument because Wilson did not address or decide the small amount issue. Moreover,

we cannot conclude that one ounce, or 28.35 grams, of marijuana is a “small amount”

under the CSA simply because 30 grams is the Board’s “useful guidepost.” More is

required here. 1 We note that Mattie’s counsel argued before the agency that possession

with intent to distribute at least one ounce of marijuana was not categorically an

aggravated felony because § 2C:35-5(b)(11) would allow the conviction of one who had

distributed as little as five grams of marijuana for no remuneration. A.R. 148. We agree

with the Board that this is flatly incorrect. To be convicted under § 2C:35-5(b)(11), one

is required to have in his possession, with an intent to distribute, at least one ounce, or

28.25 grams; 5 grams would not result in a conviction. We thus conclude that Mattie did

not carry his burden of demonstrating that he has not been convicted of an aggravated

felony, and we will uphold the agency’s determination that he is statutorily ineligible for

cancellation of removal.2

       For the foregoing reasons, we will deny the petition for review.



1
  One ounce is not even the smallest amount that the statute criminalizes. Under N.J.
Stat. Ann. § 2C:35-5(b)(12), it is a crime of the fourth degree to possess, with intent to
distribute, “[m]arijuana in a quantity of less than one ounce.”
2
  There was a statement by Mattie’s counsel in the appeal brief before the Board that
Mattie was granted post-conviction relief in the New Jersey Superior Court. The
Government is “informed that Mattie has filed a motion to reopen and/or reconsider with
the [Board], which remains pending.” See Appellee’s Brief, at 15 n.4. Our decision
denying the instant petition for review is without prejudice to any relief the Board may
fashion for Mattie as a result of any new developments in the New Jersey Superior Court
relating to the validity of the conviction at issue here.
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