1 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 3165

___________ MARVIN CONROY DAVIS , Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent

_________________________ ___________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A089

- 394

- 769 ) Immigration Judge: Honorable Andrew R. Arthur

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

April 10, 201 4 Before: SMITH, GARTH and ROTH , Circuit Judges

(Opinion filed : April 14, 2014 )

___________ OPINION

___________ PER CURIAM Marvin Davis is a citizen of Jamaica. In 2008, he was indicted in Richmond, Virginia, on one count of possessing with intent t o sell, give, or distribute more than five pounds of marijuana, in violation of Va. Code § 18.2

- 248.1. R. 116. He was found2

guilty of that offense and received a five

- year (but partially suspended) sentence of incarceration. R. 117. In 2012, the Govern ment charged Davis as removable for having been convicted of a n aggravated felony ( 8 U.S.C. § 1227(a)(2)(A)(iii)) and a controlled substance offense (8 U.S.C. § 1227(a)(2)(B)(i)). Proceeding pro se before an Immigration Judge (“IJ”), Davis argued that his offense should not be considered an aggravated felony. The IJ concluded to the contrary and ruled that Davis was removable on both charged grounds

. See R. 47 (controlled substance); R. 47

– 51 (aggravated felony). Davis appealed to the Board of Immigrati on Appeals (“BIA”). The BIA ruled that there was no “reversible error in the [IJ’s] determination that [Davis] is removable based
on h is aggravated felony conviction ” and dismissed the appeal. 1 R. 3. Davis presents a petition for review. His main arg ument is that he was not convicted of an aggravated felony. He also takes issue with the agency’s use and application of the modified categorical appro ach in his case. In addition to opposing Davis’s petition, the Government moves to dismiss it, assertin g that we lack jurisdiction over the case because Davis is removable as a criminal alien. See 8 U.S.C. § 1252(a)(2)(C).

1 We note that a sentence on the first page of the BIA’s decision is incomplete, and it is not clear if the copy in the certified record is missing some back ground information that is in the original. R. 2

- 3. However, Davis does not raise the issue, and any omission does not, in any event, affect our ability to review the case because the BIA’s legal analysis begins later in the decision.3

Because the basis for Davis’ s removal is his conviction for an aggravated felony,

our jurisdiction is limited by the REAL ID Act ; however, we retain jurisdiction over constitutional claims and questions of law. See Pierre v. Att’ y Gen. of the U

. S

. , 528 F.3d 180, 184 (3d Cir. 2008) ( en banc) (citing 8 U.S.C. § 1252(a)(2)(C)

- (D)); see also Silva

Rengifo v. Att’ y Gen. of the U

. S

. , 47 3 F.3d 58, 63 (3d Cir. 2007) (citing Kamara v. Att’y Gen. of the U. S

. , 420 F.3d 202, 210

- 11 (3d Cir. 2005) , for the proposition that the

“ jurisdictional grant regarding appeals by aggravated felons extends not just to legal determinations but also to appli cation of law to facts”). Despite the Government’ s argument to the contrary in its motion, Davi s does raise questions of law, such as his claim that he was not convicted of an aggravated felony. We reject his arguments, however. The statute under which Davis was convicted, Va. Code § 18.2

- 248.1 , is a divisible statute, so the agency properly utilized the modified

c ategorical approach. See Garcia v. A tt’y G en. of the U

. S

. , 462 F.3d 287, 293 & n.9 (3d Cir. 2006)

. The BIA d etermin ed from the evidence in t he record (R. 116

- 18), see 8 C.F.R. § 1003.41 ; Moncrieffe v. Holder , 133 S. Ct. 1678, 1684 ( 2013) (describing the type of documents that may be considered), that Davis was charged with and convicted of the “more than five pounds” version of the statute, se e Va. Code § 18.2

- 248.1 (3) . T he
BIA then “compare[d] the offense of conviction to the federal Controlled Substances Act to determine if it [wa]s analogous to an offense under that Act.” Borrome v. Att’y Gen.4

of the U.S. , 687 F.3d 150, 155 (3d Cir. 2012) (quotation marks and citation omitted). Meanwhile, 21 U.S.C. § 841(b)(1)(D) would attach a maximum fiv e - year sentence to the conduct. Cf. Evanson v. A tt’y G en. of the U

. S

. , 550 F.3d 284, 289 (3d Cir. 2008)

. And , as the BIA note d, we have held that 120.5 grams is not a “small amount” of marijuana that would escape the felony definition, see Catwell v. Att’y Gen. , 623 F.3d 199, 209 (3d Cir. 2010) ; it therefore follows that an amount in excess of 2.2 kil ograms would not either. For these reasons and other wise , Davis’s challenge to the BIA’s decision is without merit. We deny his petition for review. 2

2 We also deny t he Government’s motion to dismiss the petition.