NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 19-2790

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EDGAR ONASIS MARMOLEJOS ACEVEDO,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA 

______________

On Petition for Review of a

Decision of the Board of Immigration Appeals

(A200-545-016)

Immigration Judge: Alice Song Hartye 

______________

Submitted Under Third Circuit L.A.R. 34.1(a)

March 31, 2020

Before: GREENAWAY, JR., PORTER, and MATEY,

Circuit Judges

(Filed: May 1, 2020)

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OPINION*

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* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not 

constitute binding precedent.
2

PORTER, Circuit Judge.

The issue here is whether Edgar Onasis Marmolejos Acevedo’s conviction for 

violating 18 Pa. Cons. Stat. § 911(b)(3) is an aggravated felony, rendering him removable

from the United States. We hold that section 911(b)(3) is divisible and that we thus 

analyze this question under the modified categorical approach. Under that approach, 

Marmolejos was convicted of an aggravated felony. We will deny his petition for review.

I

Marmolejos is a native and citizen of the Dominican Republic who entered the 

United States and then participated in criminal gang activity. Authorities eventually 

charged Marmolejos with several crimes, and he pleaded guilty to a racketeering offense 

under 18 Pa. Cons. Stat. § 911(b)(3).

The Department of Homeland Security then charged Marmolejos with removal 

under the Immigration and Nationality Act (“INA”) based on his racketeering conviction.

Marmolejos responded by moving to terminate the removal proceedings, arguing that his 

conviction did not render him removable. 

The Immigration Judge (“IJ”) denied Marmolejos’s motion and held that he was 

removable because he was convicted of both an aggravated felony and a controlled 

substance offense. Marmolejos appealed the IJ’s order to the Board of Immigration 

Appeals (“BIA”), which affirmed the IJ’s holding that Marmolejos was removable on

aggravated felony grounds. The BIA did not consider whether Marmolejos was also 

removable on controlled substance offense grounds. Marmolejos timely petitioned this 

court for review. 
3

II

The IJ had jurisdiction over Marmolejos’s removal proceeding under 8 C.F.R. 

§ 1003.14(a). The BIA had jurisdiction over Marmolejos’s appeal of the IJ’s order under 

8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have jurisdiction over Marmolejos’s petition 

for review under 8 U.S.C. § 1252(a).

The BIA issued its own decision on the merits rather than summarily affirming the 

IJ. Thus, we review the BIA’s decision, not that of the IJ. See Hanif v. Att’y Gen., 694 

F.3d 479, 483 (3d Cir. 2012) (citing Sheriff v. Att’y Gen., 587 F.3d 584, 588 (3d Cir.

2009)).

To the extent that we find that Marmolejos was convicted of an aggravated felony, 

our jurisdiction is limited to “constitutional claims or questions of law.” 8 U.S.C. 

§ 1252(a)(2)(C), (D). “[W]hether a particular criminal statute is an aggravated felony or 

related to a controlled substance” is a legal question that we review de novo, without 

deferring to the BIA under Chevron. Hillocks v. Att’y Gen., 934 F.3d 332, 338 (3d Cir. 

2019) (first citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 838 

(1984); and then citing Borrome v. Att’y Gen., 687 F.3d 150, 154 (3d Cir. 2012)).

III

Marmolejos’s petition raises two purported errors by the BIA. First, Marmolejos 

argues that the BIA erred by finding that he was convicted of an aggravated felony. 

Second, Marmolejos argues that the BIA erred by declining to address the IJ’s finding 

that he was also independently deportable because he was “convicted of a violation of . . . 

any law . . . relating to a controlled substance” under 8 U.S.C. § 1227(a)(2)(B)(i).
4

Because we will deny Marmolejos’s petition for review based on his aggravated felony 

conviction, we need not consider his second argument.

A

“Any alien who is convicted of an aggravated felony at any time after admission is 

deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA defines “aggravated felony” in 

reference to several generic offenses. See 8 U.S.C. § 1101(a)(43). To determine whether 

an alien’s prior conviction is an aggravated felony, we apply the “categorical approach.”

See, e.g., Singh v. Att’y Gen., 839 F.3d 273, 278 (3d Cir. 2016). Under this approach, 

when the statute under which the alien was convicted “sets out a single (or ‘indivisible’) 

set of elements to define a single crime,” Mathis v. United States, 136 S. Ct. 2243, 2248 

(2016), the crime is an aggravated felony if its elements fall within those of the “most 

similar” generic offense listed in the INA definition, Rosa v. Att’y Gen., 950 F.3d 67, 73–

80 (3d Cir. 2020). But if the crime’s elements are broader than those of the generic 

offense, “then it is not an [aggravated felony]—even if the [alien]’s actual conduct (i.e., 

the facts of the crime) fits within the generic offense’s boundaries.” Mathis, 136 S. Ct. at 

2248.

When the statute under which the alien was convicted is “divisible”—because it 

“list[s] elements in the alternative . . . thereby defin[ing] multiple crimes”—we must 

determine which of these underlying crimes is the alien’s crime of conviction. Id. at 

2249. To do so, we apply the “modified categorical approach” and “look[] to a limited 

class of documents (for example, the indictment, jury instructions, or plea agreement and 

colloquy)” to make this determination. Id.
5

B

Marmolejos argues that the BIA erred by relying on the modified categorical 

approach to analyze whether his conviction under 18 Pa. Cons. Stat. § 911(b)(3) was an 

aggravated felony. Section 911(b)(3) is divisible, so Marmolejos’s contention fails.

Section 911(b)(3) declares that “[i]t shall be unlawful for any person employed by 

or associated with any enterprise to conduct or participate, directly or indirectly, in the 

conduct of such enterprise’s affairs through a pattern of racketeering activity.” 18 Pa. 

Cons. Stat. § 911(b)(3). “‘Pattern of racketeering activity’ refers to a course of conduct 

requiring two or more acts of racketeering activity.” Id. § 911(h)(4). The section defines 

“[r]acketeering activity” in reference to several specific crimes. See id. § 911(h)(1). To

convict under section 911(b)(3), Pennsylvania Suggested Standard Criminal Jury 

Instructions provide that a jury “must unanimously agree on which two or more [acts of 

racketeering that it] find[s] the defendant has committed beyond a reasonable doubt.” Pa. 

SSJI (Crim) § 12.911A(2)(a) (2016); cf. Commonwealth v. Birdseye, 637 A.2d 1036, 

1044 (Pa. Super. Ct. 1994) (explaining that jury instructions following Pa. SSJI (Crim) 

§ 12.911 had “accurately explained the law of corrupt organizations”). In other words, 

“racketeering activity,” in section 911(b)(3) is “a statutory phrase without independent 

meaning” that “has ‘constituent parts’ or alternative ‘elements’ that need to be proven 

beyond a reasonable doubt to sustain a conviction.” United States v. Williams, 898 F.3d 

323, 333 & n.42 (3d Cir. 2018), cert. denied, 139 S. Ct. 1351 (2019) (relying on model 

jury instructions in part to hold that 18 U.S.C. § 1962(c) of the federal Racketeering 

Influenced and Corrupt Organization Act is divisible); see United States v. Ramos, 892 
6

F.3d 599, 609 & n.47 (3d Cir. 2018) (relying on Pa. SSJI (Crim) §§ 15.2702A–15.2702L 

to hold that a Pennsylvania statute is divisible). Thus, section 911(b)(3) “sets out one or 

more elements in the alternative” and is a divisible statute to which the modified 

categorical approach applies. Ramos, 892 F.3d at 608 (citing Descamps v. United States, 

570 U.S. 254, 262 (2013)).

Marmolejos argues that the modified categorical approach is barred here by 

Nijhawan v. Holder, 557 U.S. 29 (2009). But Nijhawan does not support his argument. In 

that case, the Court interpreted the INA’s definition of “aggravated felony” as “an offense 

that . . . involves fraud or deceit in which the loss to the victim or victims exceeds 

$10,000.” See id. at 34, 36–39 (interpreting 8 U.S.C. § 1101(a)(43)(M)(i)). The Court 

concluded that that provision requires a “circumstance-specific” inquiry into a 

defendant’s criminal conduct. Id. at 34. As the Court’s more recent cases involving the 

modified categorical approach show, Nijhawan did not affect when we apply the 

modified categorical approach. See, e.g., Mathis, 136 S. Ct. 2243; see also Nijhawan, 557 

U.S. at 41 (explaining that the Court’s caselaw “developed [the modified categorical 

approach] . . . for a very different purpose [than the circumstance-specific approach], 

namely that of determining which statutory phrase (contained within a statutory provision 

that covers several different generic crimes) covered a prior conviction”). Thus, 

Nijhawan is no hurdle to applying the modified categorical approach when analyzing

whether Marmolejos was convicted of an aggravated felony.
7

C

Because section 911(b)(3) is divisible, we next consider what elements

Marmolejos “necessarily admitted” to violating when he pleaded guilty under section 

911(b)(3). United States v. Tucker, 703 F.3d 205, 210 (3d Cir. 2012) (citation omitted). 

The elements of section 911(b)(3) are (1) being “employed by or associated with any

enterprise” and (2) “conduct[ing] or participat[ing] . . . in the conduct of such enterprise’s 

affairs,” by committing “two or more acts of racketeering activity.” 18 Pa. Cons. Stat. 

§ 911(b)(3), (h)(4); see Commonwealth v. Stocker, 622 A.2d 333, 340 (Pa. Super. Ct. 

1993). Because racketeering activity has multiple definitions, which of these definitions 

applies to Marmolejos’s conviction?

To answer this question, we look to the Information that charged Marmolejos with 

violating section 911(b)(3). See Mathis, 136 S. Ct. at 2249. It states that “[Marmolejos] 

was a member of [a gang] who operated an enterprise distributing heroin and marijuana 

through a pattern of racketeering activity.” AR161. Section 911(h)(1)’s definition of 

“racketeering activity” that corresponds with Marmolejos’s charged conduct is “[a]n 

offense indictable under [35 Pa. Stat. Ann. § 780-113].” 18 Pa. Cons. Stat. 

§ 911(h)(1)(ii). Section 780-113 prohibits the unauthorized “delivery [of] . . . a controlled 

substance.” 35 Pa. Stat. Ann. § 780-113(a)(30). The definition of “controlled substance” 

includes both heroin and marijuana. See id. §§ 780-102(b), 780-104(1)(ii), (iv). Thus, 

Marmolejos’s two or more acts of racketeering activity were delivering heroin and 

marijuana without authorization, in violation of 35 Pa. Stat. Ann. § 780-113(a)(30).
8

D

Finally, we consider whether Marmolejos’s offense is an aggravated felony. 

Marmolejos was convicted of a racketeering violation under section 911(b)(3), so the 

most similar generic offense under the INA’s definitions of aggravated felony is “an 

offense described in [18 U.S.C. § 1962] (relating to racketeer influenced corrupt 

organizations).” 8 U.S.C. § 1101(a)(43)(J); see Rosa, 950 F.3d at 76; cf. Callahan v. 

A.E.V., Inc., 182 F.3d 237, 266 (3d Cir. 1999) (describing Pennsylvania’s “little RICO 

[under 18 Pa. Cons. Stat. § 911(b)]” as “virtually identical to the federal racketeering 

statute [under 18 U.S.C. § 1962]”).

Section 1962 prohibits, “any person employed by or associated with any enterprise 

. . . [from] conduct[ing] or participat[ing] . . . in the conduct of such enterprise’s affairs 

through a pattern of racketeering activity.” 18 U.S.C. § 1962(c). A “‘pattern of 

racketeering activity’ requires at least two acts of racketeering activity.” Id. § 1961(5). 

And “racketeering activity” includes “any act . . . involving . . . dealing in a controlled 

substance [under 21 U.S.C. §§ 802 and 812] . . ., which is chargeable under State law and 

punishable by imprisonment for more than one year.” Id. § 1961(1)(A). In turn, heroin 

and marijuana are controlled substances under 21 U.S.C. §§ 802 and 812.

Marmolejos’s section 911(b)(3) conviction, which was—according to the 

Information—based on delivering heroin and marijuana without authorization, meets 

each element of an offense described in 18 U.S.C. § 1962. And his section 911(b)(3) 

conviction was punishable by imprisonment for more than one year. See 18 Pa. Cons. 

Stat. § 911(c) (explaining that a violation of section 911(b)(3) is a felony of the first 
9

degree); id. § 1103(1) (explaining that felonies of the first degree are punishable by up to 

twenty years’ imprisonment). Thus, Marmolejos was convicted of an aggravated felony 

under the INA.

Still, he contends that the documents that we may rely on do not show that he 

committed multiple acts of racketeering activity. This argument is unpersuasive for two 

reasons. First, by pleading guilty to violating section 911(b)(3), Marmolejos “necessarily 

admitted” the elements of the offense, Tucker, 703 F.3d at 210, including that he had 

committed two or more acts of racketeering activity, see Stocker, 622 A.2d at 340. 

Second, Marmolejos misreads the Information. By referring to Marmolejos with the

relative pronoun “who,” the Information states that “[Marmolejos] operated an enterprise 

distributing heroin and marijuana through a pattern of racketeering activity.” AR161.

IV

For these reasons, we hold that 18 Pa. Cons. Stat. § 911(b)(3) is divisible. The BIA 

was thus correct to apply—and correctly applied—the modified categorical approach to 

find that Marmolejos was deportable because he was convicted of an aggravated felony 

under the INA. We will deny Marmolejos’s petition for review.