BIA Affirms DHS Appeal Asserting Drug Trafficking Charge Constitutes Aggravated Felony Conviction Which Excludes Consideration for Cancellation of Removal
Willy De Jesus Rosa is a lawful permanent resident who is a native and citizen of the Dominican Republic. On February 24, 2004 Rosa was convicted of possession of cocaine with the intent to sell within 1,000 feet of school property in the state of New Jersey. A decision from an Immigration Judge (IJ) on March 8, 2017 concluded that Rosa was not removable as an alien convicted of aggravated felony drug trafficking crime and granted Rosa’s application for cancellation of removal. This decision was appealed by the U.S. Department of Homeland Security (DHS). In its appeal, DHS argued that Rosa’s February 2004 conviction constituted an aggravated felony, and an aggravated felony conviction eliminates individuals from consideration for cancellation of removal. The Board of Immigration Appeals (BIA) affirmed this appeal, finding that Rosa’s conviction constituted an aggravated felony the result of which excludes him from consideration for cancellation of removal.
In reaching its conclusion, the BIA assessed whether Rosa’s February 2004 conviction under state law was congruent with defining characteristics of a felony under federal law. In reviewing the initial decision, the BIA found that the IJ determined that Rosa’s conviction could not be categorically punished as a felony, since the federal provision did not explicitly criminalize “dispensing” a controlled substance while the New Jersey state provision proscribes “distributing” or “dispensing” a controlled substance. The IJ’s decision was founded on an unpublished Third Circuit Court of Appeals decision which concluded that the vagueness and broadness of the federal provision prevents a conclusive determination of whether “distributing” and “dispersing” are alternative elements of the federal provision or alternative means of violating it.
DHS argued in its appeal that an offense can be punished as a felony under any provision of the Controlled Substances Act, meaning there were multiple provisions of the Controlled Substances Act for which Rosa’s conviction would be applicable. The BIA agreed with this perspective, citing Congress’ definition of a drug trafficking crime which encompasses “any felony punishable under the Controlled Substances Act.” The BIA found the IJ’s specific comparison to the specific federal provision rather than any federal provision under the Controlled Substances Act to be unreasonably limited.
Since Rosa’s conviction can be more broadly applied to adhere to the federal definition of an aggravated felony, and an aggravated felony conviction inherently excludes individuals from consideration with regard to cancellation of removal, the BIA sustained the appeal put forth by DHS and ordered Rosa’s removal.
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