Aggravated Felony a bar against LPR Cancellation? It depends.
Updated: Jul 4
A very complicated immigration removal defense case was referred to us. The client was a lawful permanent resident since he was a child. He had a conviction for possession with intent to deliver marijuana and paraphernalia. A few years prior, he had a simple possession of marijuana conviction.
The possession with intent to deliver, after he completed his probation, landed him in York County Prison, where he was held in custody without a bond.
The client’s family had spoken to numerous attorneys who stated that there was no form of relief for this individual and that he would be deported. Through a few attorneys, this case came to us and we got to work.
In less than two weeks, we were able to get this young man released from York County Prison without the family needing to post a bond.
How did we do it?
We first looked at the categorical approach to determine whether his criminal conviction for the possession of intent to deliver marijuana triggers a ground of removal. Under the “strict” version of the “Taylor/Shepard” categorical approach, courts simply compare the general or “generic” federal ground of removal with the minimum conduct necessary to offend the criminal statute. If every violation of the criminal statute necessarily falls within the federal removal ground, then a conviction under that criminal statute categorically triggers deportation. But if the criminal statute can be offended without engaging in conduct that falls within the generic deportation ground, the conviction will not be found to trigger removal regardless of the actual conduct that resulted in conviction.
What does this mean?
Well in the case brought to us, we briefed the Court that it should not look to the conduct underlying our client’s case. It should look towards the less culpable conduct under which one could be convicted for violating the state crime code. In this instance, one could be convicted with a possession with intent to deliver even if the record did not indicate the amount of marijuana - if this was so, the court should find that the conviction did not qualify as an aggravated felony. Jeune, at 205 citing Wilson, at 381.
“[T]he Pennsylvania statute forbids ‘the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act.’ 35 Pa. Cons. Stat. Ann. § 780-113(a)(30). Because it does not differentiate prohibited conduct in terms of amount or reasons for possessing, the statute covers ‘distributing a small amount of marihuana for no remuneration,’ which under the CSA is a misdemeanor and not a felony. 21 U.S.C. §§ 841(b)(4) and 844(a).” Walker, at 90-91.
Our client’s sentencing order showed he pleaded guilty, and the information lists the statutory provisions under which our client was charged. Neither document—nor any document we are permitted to examine under Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) – provided any facts indicating was our client was convicted of an offense that would be an aggravated felony under federal law.
Pursuant to the Pennsylvania statute under which our client was convicted, 35 Pa. Stat. Ann. § 780–113(a)(30), it is possible to be convicted of violating 35 Pa. Stat. Ann. § 780–113(a)(30) for conduct that would not be a federal felony— for example, distributing a small amount of marijuana for no remuneration or transferring marijuana to another without consideration. Additionally, because 35 Pa. Stat. Ann. § 780–113(a)(30) does not differentiate prohibited conduct in terms of amount or reasons for possessing, the statute covers ‘distributing a small amount of marihuana for no remuneration,’ which under the CSA is a misdemeanor and not a felony.
This means that Pennsylvania law is broader than the federal law and there is not categorical match as the Pennsylvania law reaches more conduct.
Lastly, we also looked to see if the Pennsylvania statute of conviction was indivisible. Here the Pennsylvania statute of conviction is indivisible and when examining the Pennsylvania statute, it is broader than the federal statute. The statute of conviction prohibits more conduct then under the federal (CSA). One can be convicted of violating 35 Pa. Stat. Ann. § 780–113(a)(30) for conduct that would not be a federal felony—for example, distributing a small amount of marijuana for no remuneration or transferring marijuana to another without consideration. Thus, it is possible to be convicted under 35 Pa. Stat. Ann. § 780–113(a)(30), while not rendering that same conduct to be deemed a conviction under federal law.
What did we do next?
We made these arguments to the Judge. The Judge found that our client did not commit an aggravated felony as the Department of Homeland Security was charging him with for removal. Had he been charged and found to have committed an aggravated felony for immigration purposes, he would not have been able to seek LPR cancellation of removal. In fact, his form of relief would be nearly unattainable. But, we were able to show the Judge that his conviction was not an aggravated felony, though he was convicted of such, when examined through the scope of the federal crimes code. In turn, our client was permitted to seek LPR cancellation of removal.