PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 18-1765 

 

WILLY DE JESUS ROSA, 

 Petitioner 

v. 

ATTORNEY GENERAL UNITED STATES OF AMERICA, 

 Respondent 

______________ 

On Petition for Review from 

the Board of Immigration Appeals 

(Agency No.: A043-843-657) 

______________ 

Argued March 14, 2019 

______________ 

Before: McKEE, ROTH, and FUENTES, Circuit Judges 

(Opinion filed: January 29, 2020) 

 
2 

Raymond P. D’Uva, I 

Alexandra Miron 

Law Offices of Raymond P. D’Uva 

17 Academy Street 

Suite 1000 

Newark, NJ 07102 

Derek A. Decosmo (Argued) 

DeCosmo & Rolon 

511 Market Street 

Camden, NJ 08102 

Counsel for Petitioner 

Matthew B. George (Argued) 

United States Department of Justice 

Office of Immigration Litigation 

P.O. Box 878 

Ben Franklin Station 

Washington, DC 20044 

Counsel for Respondent 

Eric M. Mark, Esq. (Argued) 

201 Washington Street 

Newark, NJ 07102 

Counsel for Amici Curiae American 

Immigration Lawyers Association

________________ 

OPINION OF THE COURT 

________________ 

FUENTES, Circuit Judge 
3 

This appeal asks us to address an issue of first 

impression under the Immigration and Nationality Act (the 

“Act”) that carries implications beyond immigration law: 

whether the categorical approach, which compares the 

elements of prior convictions with the elements of crimes 

under federal law, permits comparison with any federal crime, 

or only the “most similar” one. That issue arises in noncitizen 

Willy de Jesus Rosa’s petition for review from the 

determination of the Board of Immigration Appeals that his 

prior New Jersey convictions for possession and sale of a 

controlled substance within 1,000 feet of a school constitute 

aggravated felonies under the Act. Specifically, he challenges 

the Board’s conclusion that his prior convictions could be 

compared not only to the federal statute proscribing 

distribution near a school but also to the federal statute 

prohibiting distribution generally. We agree that the Board 

erred in that conclusion and will grant the petition for review 

and remand for further proceedings. 

I. Background 

The facts in the administrative record before us may be 

summarized as follows: 

Rosa, a citizen of the Dominican Republic, was 

admitted to the United States as a legal permanent resident in 

1992, when he was still a child. When his family arrived in the 

United States, they resided in Paterson, New Jersey, where 

Rosa eventually attended high school. While Rosa was in high 

school, his family, including five of his seven siblings, moved 

out of state; Rosa remained in New Jersey to complete high 

school. 
4 

Shortly after he graduated from high school in 2001, 

Rosa lost his job as a car valet and became associated with the 

“wrong people.”1

 In 2003, he was arrested for drug charges, 

and on February 20, 2004, he was convicted following a guilty 

plea in New Jersey Superior Court for the possession and sale 

of a controlled substance—cocaine—within 1,000 feet of 

school property in violation of § 2C:35-7 of the New Jersey 

statutes (the “New Jersey School Zone Statute”).2

 Eleven years 

later, the Department of Homeland Security served Rosa with 

a Notice to Appear, charging that Rosa was removable for the 

conviction of a controlled substances offense3

 and of an 

“aggravated felony”4

 for a “drug trafficking crime.”5

Rosa subsequently appeared before an Immigration 

Judge, where he conceded removability for the controlled 

substances offense. However, he denied removability for the 

aggravated felony, which would have precluded him from 

being eligible for cancellation of removal.6

 As required by 

 

1

 AR 234. 

2

 Rosa was charged with the crimes in two separate 

indictments. In relevant part, § 2C:35-7 provides, “Any person 

who violates [N.J. Rev. Stat. § 2C:35-5(a)] by distributing, 

dispensing or possessing with intent to distribute a controlled 

dangerous substance . . . while on any school property . . . or 

within 1,000 feet of such school property or a school bus, or 

while on any school bus, is guilty of a crime of the third 

degree . . . .” N.J. Rev. Stat. § 2C:35-7 (2013). 

3

 8 U.S.C. § 1227(a)(2)(B)(i). 

4 Id. § 1227(a)(2)(A)(iii). 

5 Id. § 1101(a)(43)(B). 

6

 8 U.S.C. § 1229b(a)(3). 
5 

Supreme Court precedent, the Immigration Judge applied the 

“categorical approach”7

 to determine if Rosa’s state 

convictions qualified as an aggravated felony. Under the 

categorical approach, the Immigration Judge compared Rosa’s 

statute of conviction, the New Jersey School Zone Statute, with 

the federal statute for distribution “in or near schools and 

colleges” (the “Federal School Zone Statute”).8

 The 

Immigration Judge concluded that the state statute swept more 

broadly than its federal counterpart in both its proscribed 

 

7

 As described below, the categorical approach compares 

“whether ‘the state statute defining the crime of conviction’ 

categorically fits within the ‘generic’ federal definition of a 

corresponding aggravated felony.” Moncrieffe v. Holder, 569 

U.S. 184, 190 (2013) (quoting Gonzales v. Duenas-Alvarez, 

549 U.S. 183, 186 (2007)). In making that determination, a 

court looks “not to the facts of the particular prior case,” but 

instead only to the elements of the state statute and the 

“generic” federal analog. Duenas-Alvarez, 549 U.S. at 186 

(citing Taylor v. United States, 495 U.S. 575, 598 (1990)). If 

the elements of the state conviction “categorically fit[]” within 

the elements of an appropriate federal analog, then the state 

conviction constitutes an aggravated felony. Moncrieffe, 569 

U.S. at 190 (citing Duenas-Alvarez, 549 U.S. at 186). 

8

 21 U.S.C. § 860. In relevant part, § 860 provides, “Any 

person who violates [21 U.S.C. § 841(a)(1) or 856] by 

distributing, possessing with intent to distribute, or 

manufacturing a controlled substance in or on, or within one 

thousand feet of, the real property comprising a public or 

private elementary, vocational, or secondary school . . . is . . . 

subject to [] twice the maximum punishment authorized by [18 

U.S.C. § 841(b)] . . . .” Id. § 860. 
6 

conduct and its definition of “school property.”9

 

Consequently, under the categorical approach, Rosa’s state 

conviction was not an “aggravated felony” under federal law,10

and he was eligible for cancellation of removal, which the 

Immigration Judge granted.11

 The Department of Homeland Security appealed to the 

Board of Immigration Appeals. The Board determined that, 

under the categorical approach, Rosa’s state conviction could 

be compared to the federal statute generally prohibiting the 

distribution of a controlled substance (the “Federal 

Distribution Statute”)12 as a lesser included offense of the 

Federal School Zone Statute. The Board concluded that the 

Federal Distribution Statute encompassed the elements of 

Rosa’s state statute of conviction and that the state conviction 

consequently qualified as an aggravated felony. The Board 

 

9

 A 30-31. 

10 A 33. 

11 Cancellation of removal is barred for noncitizens convicted 

of aggravated felonies, as defined in 8 U.SC. § 1101(a)(43). 8 

U.S.C. § 1229b(a)(3). The Immigration Judge also determined 

that Rosa was removable for a controlled substance offense 

under 8 U.S.C. § 1227(a)(2)(B)(i), which does not bar 

cancellation of removal. Rosa did not challenge that 

determination before the Board and does not challenge it 

before us. 

12 21 U.S.C. § 841(a). That section provides, “[I]t shall be 

unlawful for any person knowingly or intentionally . . . to 

manufacture, distribute, or dispense, or possess with intent to 

manufacture, distribute, or dispense, a controlled 

substance . . . .” Id.
7 

therefore determined that Rosa was ineligible for cancellation 

of removal and ordered him removed. Rosa timely appealed 

to this Court. 

II. Discussion13 

On appeal, Rosa contends that the Board of Immigration 

Appeals erred by concluding that his prior convictions could 

be compared to any federal analog under the categorical 

approach. According to Rosa, a prior conviction can only be 

properly compared to the “most similar” federal analog. The 

Government responds that nothing in the Immigration and 

Nationality Act prevents it from selecting any federal analog, 

especially those that would be lesser included offenses of the 

prior conviction. We agree with Rosa that the Board erred and 

hold that the Board’s conclusion runs afoul of longstanding 

federal practice. We conclude, however, that the record before 

 

13 The Board of Immigration Appeals had jurisdiction over the 

Department of Homeland Security’s appeal from the 

Immigration Judge’s cancellation of Rosa’s removal under 8 

C.F.R. § 1003.1(b). We have jurisdiction to review the Board’s 

final order of removal, 8 U.S.C. § 1252(a)(5), limited to 

“constitutional claims or questions of law,” id.

§ 1252(a)(2)(C), (D). We review the Board’s determination 

that Rosa’s state convictions constituted an aggravated felony 

de novo. Evanson v. Att’y Gen., 550 F.3d 284, 288 (3d Cir. 

2008). “When the BIA issues its own decision on the merits, 

rather than a summary affirmance, we review its decision, not 

that of the IJ.” Singh v. Att’y Gen., 839 F.3d 273, 282 (3d Cir. 

2016) (quoting Chavez-Alvarez v. Att’y Gen., 783 F.3d 478, 

482 (3d Cir. 2015)). 
8 

us is insufficient to properly compare the New Jersey and 

Federal School Zone Statutes and remand for further 

proceedings to supplement the record. 

A. Applicable Law 

 The Board determined that Rosa’s prior convictions 

constituted aggravated felonies under the Immigration and 

Naturalization Act pursuant to what is known as the 

“categorical approach.” The categorical approach “asks only 

whether the elements of a federal criminal statute can be 

satisfied by reference to the actual statute of conviction.”14 

Consequently, a court looks “‘not to the facts of the particular 

prior case,’ but instead to whether ‘the state statute defining the 

crime of conviction’ categorically fits within the ‘generic’ 

federal definition of a corresponding aggravated felony.”15 If 

the elements of the state conviction “fit[]” within the elements 

of the appropriate federal offense, then the state conviction 

constitutes an aggravated felony.16 Consequently, “a state 

crime cannot qualify as an [aggravated felony] if its elements 

are broader than those of a listed generic offense.”17

 Although the categorical approach originally emerged 

in the Supreme Court’s decisions on the Armed Career 

 

14 Evanson, 550 F.3d at 292 (quoting Singh v. Ashcroft, 383 

F.3d 144, 161 (2004)). 

15 Moncrieffe, 569 U.S. at 190 (quoting Duenas-Alvarez, 549 

U.S. at 186). 

16 Id.

17 Mathis v. United States, 136 S. Ct. 2243, 2251 (2016); 

accord Taylor, 495 U.S. at 590. 
9 

Criminal Act,18 courts have extended the approach to certain 

“aggravated felonies” under the Immigration and Nationality 

Act.19 In particular, the categorical approach is applied to 

determine if a drug offense may be deemed an “aggravated 

felony”20 through “either one of two routes”21 under the Act: 

(1) for “illicit trafficking in a controlled substance,”22 which 

“must involve ‘the unlawful trading or dealing of a controlled 

substance’” 23 and was held by the Board not necessary for it to 

consider to reach its decision here; or, (2) for “a drug 

 

18 18 U.S.C. § 924(e). 

19 Moncrieffe, 569 U.S. at 190; cf. Nijhawan v. Holder, 557 

U.S. 29, 38 (2009) (interpreting the language Congress used in 

8 U.S.C. §1101(a)(43)(M)(i) for “fraud or deceit” as requiring 

a “circumstance-specific” rather than categorical approach); 

Singh, 383 F.3d at 148 (“[I]n some cases the language of the 

particular subsection of 8 U.S.C. § 1101(a)(43) at issue will 

invite inquiry into the underlying facts of the case, and in some 

cases the disjunctive phrasing of the statute of conviction will 

similarly invite inquiry into the specifics of the conviction.”). 

20 8 U.S.C. § 1101(a)(43). 

21 Gerbier v. Holmes, 280 F.3d 297, 313 (3d Cir. 2002). 

Although the language of § 1101(a)(43) appears to “create[] a 

single category” of “illicit trafficking,” with a subcategory for 

“drug trafficking crimes,” we have previously concluded that 

the legislative history of the section shows that Congress 

sought to create two distinct routes for establishing a drug 

offense as an aggravated felony. Id. at 307 n.8 (citing Steele v. 

Blackman, 236 F.3d 130, 136 n.5 (3d Cir. 2001)). 

22 8 U.S.C. § 1101(a)(43)(B). 

23 Evanson, 550 F.3d at 289. 
10 

trafficking crime,”24 defined as “any felony punishable under 

the Controlled Substances Act.”25 

 Section 924(c)(4) not only incorporates the Controlled 

Substances Act in defining a “drug trafficking crime,” but it 

“encompasses all state offenses that ‘proscrib[e] conduct 

punishable as a felony under [the CSA].’”26 The categorical 

approach, sometimes labelled the “hypothetical federal felony 

approach,”27 is applied to determine whether a state offense 

defines a felony under the Controlled Substances Act.28 If the 

 

24 8 U.S.C. § 1101(a)(43)(B). 

25 18 U.S.C. § 924(c)(2), cited and incorporated in 8 U.S.C. 

§ 1101(a)(43)(B). 

26 Moncrieffe, 569 U.S. at 192 (alterations in original) (quoting 

Lopez v. Gonzales, 549 U.S. 47, 60 (2006)). 

27 See Singh, 383 F.3d at 157. In this Circuit, “[t]he 

hypothetical federal felony approach is essentially the formal 

categorical approach of Taylor, as applied to a specific federal 

statute.” Id.; Evanson, 550 F.3d at 292 n.5; Gerbier, 280 F.3d 

at 315. To the extent that other Circuits have framed the 

hypothetical felony approach as asking whether “the ‘conduct’ 

that gave rise to [the prior] conviction would have been 

punished as a felony in federal court,” it has been rejected by 

the Supreme Court. Carachuri-Rosendo v. Holder, 560 U.S. 

563, 580 (2010). Instead, as described here, we are limited to 

examining the elements of the prior conviction. 

28 Moncrieffe, 569 U.S. at 190 (“When the Government alleges 

that a state conviction qualifies as an ‘aggravated felony’ under 

the INA, we generally employ a ‘categorical approach’ to 

determine whether the state offense is comparable to an offense 

listed in the INA.” (citing Nijhawan, 557 U.S. at 33-38; 
11 

state offense is narrower than, or the same as, the generic 

federal analog under the Controlled Substance Act, it 

constitutes an aggravated felony under the Immigration and 

Nationality Act.29

 Before determining if the state offense is narrower or 

broader than its federal analog, a court must determine which 

state offense the defendant was convicted of. If the relevant 

state statute defines a single crime—known as an “indivisible” 

statute—the analysis is “straightforward.”30 If, however, the 

statute defines multiple crimes in multiple subdivisions or by 

“list[ing] elements in the alternative,” it is “divisible,” and the 

analysis requires an extra step described below.31 To 

determine whether a statute is divisible or indivisible, courts 

are permitted to examine the statute itself and state court 

decisions and to “peek” at the “record of a prior conviction,”32

including the charging documents, plea agreement, plea 

colloquy, and jury instructions.33 A statute may be indivisible 

even if it has disjunctive phrasing—listing various components 

 

Duenas-Alvarez, 549 U.S. at 185-187)); Lopez, 549 U.S. at 60; 

id. at 55 (“Unless a state offense is punishable as a federal 

felony it does not count.”). 

29 Mathis, 136 S. Ct. at 2248. 

30 Id. 

31 Id. at 2249. 

32 Id. at 2256-57 (quoting Rendon v. Holder, 782 F. 3d 466, 

473-474 (9th Cir. 2015) (Kozinski, J., dissenting from denial 

of reh’g en banc)).

33 Id. at 2249, 2253, 2256-67. 
12 

as alternatives—if it merely “enumerates various factual means 

of committing a single element.”34

 An indivisible statute defining a single crime is assessed 

under the “formal categorical approach” outlined above.35 

However, a divisible statute listing multiple crimes with 

different elements requires courts to go an extra step beyond 

the categorical approach and employ the “modified categorical 

approach” to determine of which crime the defendant was 

convicted.36 “‘Elements’ are the ‘constituent parts’ of a 

crime’s legal definition—the things the ‘prosecution must 

prove to sustain a conviction.’”37 Under the modified 

categorical approach, the court may look to a limited class of 

documents—“for example, the indictment, jury instructions, or 

plea agreement and colloquy”—solely to determine under 

which portion of the statute and under which elements—the 

defendant was convicted.38 Once a court has used the modified 

 

34 Id. at 2249. For example, in Mathis itself, the Supreme 

Court concluded that Iowa’s burglary statute, which defined 

burglary as occurring in “any building, structure, [or] land, 

water, or air vehicle,” was indivisible because the Iowa 

Supreme Court had concluded that the listed locations were 

merely “alternative ways of satisfying a single locational 

element.” Id. at 2250 (alteration in original) (emphasis 

omitted) (quoting Iowa Code §702.12 (2013)). 

35 Evanson, 550 F.3d at 290. 

36 Id. 37 Mathis, 136 S. Ct. at 2248 (quoting Elements of Crime, 

Black’s Law Dictionary (10th ed. 2014)). 

38 Id. These documents are often referred to as “Shepard

documents” for the case in which the Supreme Court chiefly 
13 

categorical approach to “determine what crime, with what 

elements, a defendant was convicted of,” then it may “compare 

that crime, as the categorical approach commands, with the 

relevant generic offense.”39

 It is under this law that we analyze Rosa’s arguments.

B. The Categorical Approach Is Limited to the 

Most Similar Federal Analog 

 We conclude, first, that the Board erred in permitting 

Rosa’s statute of conviction to be compared to multiple federal 

analogs. Instead, longstanding practice in federal court limits 

that comparison to only the most similar federal analog. 

1. Longstanding Federal Practice 

 First, the Board’s determination runs afoul of 

longstanding practice in the Supreme Court and this Court that 

has treated prior convictions as having only one federal analog. 

That practice is underscored by the Supreme Court’s reasoning 

in Taylor v. United States40 and its subsequent decisions. 

 

outlined their use, Shepard v. United States, 544 U.S. 13, 26 

(2005). The Supreme Court envisions use of the Shepard 

documents as a two-step process, first to determine whether 

“an alternatively phrased statute” lists elements or means, and 

second, if the items listed in the statute are elements, to 

determine which of those elements were implicated in the 

defendant’s conviction. Mathis, 136 S. Ct. at 2256 & n.7. 

39 Mathis, 136 S. Ct. at 2249. 

40 495 U.S. 575. 
14 

In Taylor, the Court rejected the Eighth Circuit’s 

conclusion that “burglary” under the Armed Career Criminal 

Act “means ‘burglary’ however a state chooses to define it.”41

The Court reasoned that Congress could not have intended to 

premise application of that Act on the “vagaries”42 of state law. 

Various states, for example, might not have any offense 

“formally labeled ‘burglary,’” but instead multiple statutes 

covering “breaking and entering.”43 Other states might cover 

shoplifting or theft from automobiles44 and coin machines 

under the umbrella of “burglary.”45 The Court reasoned that 

each of these statutes, despite their many variations, must be 

covered by “some uniform definition independent of the 

labels” and statutory schemes “employed by the various States’ 

criminal codes.”46 That uniform definition was to cover prior 

convictions that, “while not called ‘burglary,’ correspond in 

substantial part to generic burglary.”47

 The Supreme Court’s subsequent decisions regarding 

the categorical approach emphasize that a prior conviction will 

be compared to the most similar federal analog. For example, 

in Shepard v. United States, the Supreme Court concluded that 

the defendant’s prior convictions under Massachusetts law 

 

41 Id. at 579 (quoting United States v. Taylor, 864 F.2d 625, 

627 (8th Cir. 1989)). 

42 Id. at 588. 

43 Id. at 591 (citing Mich. Comp. Laws § 750.110 (1979)). 

44 Id. (citing Cal. Penal Code Ann. § 459 (West Supp. 1990)). 

45 Id. (citing Tex. Penal Code Ann. §§ 30.01-30.05 (1989 and 

Supp. 1990)). 

46 Id. at 592. 

47 Id. at 599 (emphasis added). 
15 

were broader than “generic” federal burglary.48 Although the 

state statutes were merely labelled “breaking/entering,”49 the 

Court nonetheless compared them to “the generic offense” for 

burglary.50 According to the Shepard Court, a prior conviction 

could fall within “the generic limit”51 only if evident from the 

statute, a plea colloquy regarding “the generic fact,” or “the

generic implication of a jury’s verdict.”52

Similarly, in Mathis, the Court described the categorical 

approach as comparing a statute of conviction “with the 

relevant generic offense.”53 Likewise, in Descamps v. United 

States, the Court described “the generic offense” for a 

particular statute of conviction as “the offense as commonly 

understood.”54 Those statements, with the use of the definite 

article “the,” all presuppose that a given statute of conviction 

has a single generic analog. 

 Our own jurisprudence has similarly underscored that 

prior convictions will only have a single generic federal 

analog. In Gerbier v. Holmes, we concluded that a Delaware 

conviction for possession of cocaine did not qualify as an 

aggravated felony.55 In reaching that conclusion, we rejected 

 

48 544 U.S. at 17. 

49 Mass. Gen. Laws, ch. 266, §§ 16, 18 (2000); see Shepard, 

544 U.S. at 31 (O’Connor, J., dissenting). 

50 544 U.S. at 17. 

51 Id. (emphasis added). 

52 Id. at 25-26 (emphasis added). 

53 136 S. Ct. at 2249. 

54 570 U.S. at 257. 

55 280 F.3d at 317. 
16 

one provision of the Controlled Substances Act, 21 U.S.C. 

§ 802, as “the appropriate federal analog[]” because it did not 

“define[] substantive federal drug offenses,” but only the terms 

used elsewhere in the Controlled Substances Act.56 Instead, 

we concluded that 21 U.S.C. § 844(a) was “the pertinent 

federal analog,”57 because it proscribed the same conduct. 

 The Government argues, however, that Gerbier actually 

“embraced the idea of multiple potential federal analogues.”58 

That argument is misplaced. The language used by the Gerbier 

court expressly rejected § 802 as an “appropriate federal 

analog[]” and instead concluded that “the pertinent federal 

analog” was 21 U.S.C. § 844.59 As with the language 

employed by the Supreme Court, longstanding practice in this 

Court has steadfastly presupposed that prior convictions will 

have only a single, uniform federal analog.60 The 

Government’s position would upend that practice. 

 

56 Id. at 316 (citing 21 U.S.C. §§ 802(13), (44)). 

57 Id.

58 Respondent Br. at 16. 

59 Gerbier, 280 F.3d at 316.

60 See Singh, 839 F.3d at 285 (“This is the appropriate generic 

federal offense analog for convictions for ‘knowingly 

possessing with intent to deliver a counterfeit controlled 

substance’ . . . .” (emphasis added)); Wilson v. Ashcroft, 350 

F.3d 377, 381 (3d Cir. 2003) (“The analogous federal criminal 

provision is 21 U.S.C. § 841(a)(1), which proscribes the 

identical conduct.”). 
17 

2. Congressional Intent 

Application of the categorical approach is ultimately 

dictated by Congress’s intent in passing the relevant statute.61 

“[T]he Supreme Court has always rooted the categorical 

approach in the statutory language chosen by Congress and 

consistently defended this approach as a means of effectuating 

congressional intent.”62 Consequently, the “categorical 

approach is dictated by the text of the statute and Congress’s 

intent to impose increased penalties based on the violation of 

certain predicate statutes.”63

 

61 See Mathis, 136 S. Ct. at 2252 (“Our decisions have given 

three basic reasons for adhering to an elements-only inquiry. 

First, ACCA’s text favors that approach.”); Nijhawan, 557 

U.S. at 34 (“In Taylor and James we held that ACCA’s 

language read naturally uses the word ‘felony’ to refer to a 

generic crime as generally committed.”); Taylor, 495 U.S. at 

588-89 (“[T]he 1984 definition of burglary shows that 

Congress, at least at that time, had in mind a modern ‘generic’ 

view of burglary. . . .”). 

62 United States v. Simms, 914 F.3d 229, 240 (4th Cir. 2019) 

(en banc); accord Singh, 383 F.3d at 164 (concluding that the 

statutory text and legislative history of the Immigration and 

Nationality Act “support[] the conclusion that Congress 

intended Taylor’s formal categorical approach to be applied” 

to “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A)). 

63 Ovalles v. United States, 905 F.3d 1231, 1299 (11th Cir. 

2018) (en banc) (Pryor, J., dissenting) 
18 

Here, an “aggravated felony” is defined under the 

Immigration and Nationality Act64 in part as encompassing 

“any felony punishable under the Controlled Substances 

Act.”65 That definition incorporates the entirety of the 

substantive felony offenses under the Controlled Substances 

Act66 as aggravated felonies under the Immigration and 

Nationality Act. Notably, Congress did not limit the list of 

potential federal analogs to lesser included offenses67 such as 

simple possession,68 possession with intent to distribute,69 or 

distribution.70 Where Congress has decided to incorporate a 

 

64 8 U.S.C. § 1101(a)(43)(B). 

65 18 U.S.C. § 924(c), incorporated in 8 U.S.C. 

§ 1101(a)(43)(B). 

66 Gerbier, 280 F.3d at 315-16. 

67 Offense, Black’s Law Dictionary (11th ed. 2019) (defining 

“lesser included offense” as a “crime that is composed of some, 

but not all, of the elements of a more serious crime and that is 

necessarily committed in carrying out the greater crime”). 

68 21 U.S.C. § 844(a). Simple possession qualifies as a felony 

under the Controlled Substances Act when the prosecution 

charges and proves the existence of a prior conviction for 

possession. Carachuri-Rosendo, 560 U.S. at 568. As a 

sentencing factor, however, that proof may be by a 

preponderance of the evidence and may be found by a judge, 

rather than by a jury. Id. at 567 n.3. 

69 21 U.S.C. § 841(a)(1). We have previously concluded that 

the Federal Distribution Statute, id., is a lesser included offense 

of the Federal School Statute, id. § 860. United States v. 

Petersen, 622 F.3d 196, 204 (3d Cir. 2010). 

70 21 U.S.C. § 841(a)(1). 
19 

range of substantive offenses as generic federal analogs under 

the categorical approach, we must give that decision full effect. 

The Supreme Court has instructed that Congress 

intended for the categorical approach to take full account of the 

actual prior conviction. In Carachuri-Rosendo v. Holder, the 

Court concluded that, of simple possession convictions, only 

“recidivist simple possession” qualified as a felony under the 

Controlled Substances Act and that a prosecutor must have 

charged and proven an antecedent possession conviction 

before a judge in state proceedings.71 In reaching that 

conclusion, the Court emphasized that the text of the 

Immigration and Nationality Act requires a noncitizen to have 

“been convicted of a[n] aggravated felony.”72 According to the 

Court, that “text thus indicates that we are to look to the 

conviction itself as our starting place, not to what might have 

or could have been charged.”73 

Although Carachuri addressed offenses that had been 

charged as misdemeanors, that same principle applies here: 

Rosa was charged with and convicted of a greater offense—

sale of a controlled substance within a school zone74—with the 

additional school zone element not included in the lesser 

offense. The Government cannot now avoid the implications 

of Rosa’s actual conviction. 

 

71 560 U.S. at 568-69. 

72 Id. at 576 (emphasis and alteration in original). 

73 Id. at 576, 578. 

74 See State v. Ivory, 592 A.2d 205, 210 (N.J. 1991) (“The first 

step in determining whether N.J.S.A. 2C:35-7 has been 

violated is to see whether N.J.S.A. 2C:35-5a has been 

violated.”). 
20 

In response, the Government raises two contentions, 

neither of which is availing. First, it argues that the term “illicit 

trafficking in a controlled substance” under “the text of 

§ 1101(a)(43)(B)” is the relevant generic analog, which is 

satisfied by any felony under the Controlled Substances Act.75 

That argument has some support in decisions by the Supreme 

Court and this Court. For example, in Moncrieffe v. Holder, 

the Supreme Court analyzed its earlier decision in CarachuriRosendo as concluding that “‘illicit trafficking in a controlled 

substance’ is a ‘generic crim[e]’ to which the categorical 

approach applies.”76 Similarly, in Singh v. Attorney General, 

we stated, “The relevant federal ‘corresponding aggravated 

felony’ here is ‘illicit trafficking in a controlled substance . . . 

including a drug trafficking crime . . . .’”77 That language 

seems to support the argument that the proper federal analog is 

merely the provisions of § 1101(a)(43)(B). 

However, neither of those decisions rested on that 

cursory analysis. The Moncrieffe Court recognized that the 

proper federal analog in Carachuri-Rosendo was not merely 

“illicit trafficking.” Instead, it determined that “the generic 

federal offense” in Carachuri-Rosendo was ultimately the 

underlying provision of the Controlled Substance Act, 

 

75 Respondent Br. at 17. 

76 569 U.S. at 202 (alteration in original) (quoting Nijhawan, 

557 U.S. at 37) (citing Carachuri-Rosendo, 560 U.S. at 576-78 

n. 11). 

77 839 F.3d at 285. 
21 

“recidivist simple possession.”78 Similarly, in Singh, we 

concluded that “the appropriate generic federal offense analog” 

was not just “illicit trafficking,” but the underlying provision 

of the Controlled Substances Act proscribing “knowingly . . . 

posses[sing] with intent to distribute or dispense, a counterfeit 

substance.”79 In each of those cases, the court followed 

Congress’s intent in comparing the actual state convictions to 

their most similar federal analog in the Controlled Substances 

Act. 

Second, the Government contends that the term “any” 

in the definition of a “drug trafficking crime” 80 is ambiguous 

and the interpretation of the Board of Immigration Appeals is 

entitled to deference under Chevron, Inc. v. Natural Resource 

Defense Council.

81 In the alternative, the Government 

contends that, even in the absence of deference under Chevron, 

the term still authorizes it to choose among federal analogs. 

Neither of those contentions has merit. We have previously 

held that the Board is not entitled to deference under Chevron 

when interpreting § 924(c), because “the interpretation and 

exposition of criminal law is a task outside the BIA’s sphere of 

special competence.”82 “[T]he specified section at issue in this 

case is part of the federal criminal code that is incorporated by 

 

78 569 U.S. at 195-96 (quoting Carachuri-Rosendo, 560 U.S. 

at 567). 

79 839 F.3d at 285 (omission and alteration in original) (quoting 

21 U.S.C. §§ 841(a)(2)). 

80 18 U.S.C. § 924(c), incorporated in 8 U.S.C. 

1101(a)(43)(B). 

81 467 U.S. 837 (1984). 

82 Singh, 383 F.3d at 151. 
22 

reference into the INA. As such, the BIA’s expertise in 

interpreting the INA is not implicated in a meaningful way and 

we need not defer to it.”83 Likewise, the term “any” cannot 

carry the authorization the Government imparts to it in this 

context. Although the term is undoubtedly broad, in this 

context, we cannot infer that Congress intended, with that one 

word, for lesser included offenses to effectively serve as the 

sole federal analogs for “any felony punishable under the 

Controlled Substances Act.”84 

Thus, we conclude that Congress intended for prior 

convictions to be compared to their most similar federal 

analogs. 

3. Determining the “Most Similar” Federal 

Analog 

 With the above principles in mind, we turn to 

identifying the proper federal analog for Rosa’s conviction. As 

noted above, our analysis is guided by longstanding practice in 

this Court and the Supreme Court, and that practice has 

developed in order to effect congressional intent. We have 

reasoned that Congress would not have incorporated the 

entirety of substantive felony offenses under the Controlled 

Substances Act as federal analogs if it also intended to permit 

prosecutors and immigration officials to resort to the federal 

analogs with the least number of elements. Therefore, we 

 

83 Gerbier, 280 F.3d at 302 n.2; accord Salmoran v. Att’y Gen., 

909 F.3d 73, 77 (3d Cir. 2018) (citing Singh v. Att’y Gen., 677 

F.3d 503, 508 (3d Cir. 2012)). 

84 18 U.S.C. § 924(c)(2). 
23 

conclude that, when selecting a generic federal analog, courts 

must, when possible, select an analog that has elements that 

may be “line[d] up”85 with each of the elements of the prior 

conviction. 

 

 The application of those principles in this case is 

straightforward. Rosa’s statute of conviction, the New Jersey 

School Zone Statute,86 has three elements that may be 

described as: (1) “distributing, dispensing or possessing with 

intent to distribute” (2) “a controlled dangerous substance” (3) 

“while on any school property.”87 The Federal Distribution 

Statute, however, lacks that critical third element, requiring 

only that a person (1) knowingly or intentionally “manufacture, 

distribute, or dispense, or possess with intent to manufacture, 

distribute, or dispense” (2) “a controlled substance.”88 Because 

it lacks what may be described as a location element, the 

Federal Distribution Statute is not a proper analog to the New 

Jersey School Zone Statute. Instead, the Federal School Zone 

Statute supplies that missing element89 and is the proper federal 

 

85 Mathis, 136 S. Ct. at 2248. 

86 N.J. Rev. Stat. § 2C:35-7(a). 

87 See State v. Gregory, 106 A.3d 1207, 1210 (N.J. 2015) (“The 

elements of [possession with the intent to distribute under § 

2C:35-7(a)] were (1) possession of a controlled dangerous 

substance, (2) with the purposeful or knowing intent to 

distribute the substance, and (3) within 1000 feet of any school 

property.”). 

88 21 U.S.C § 841(a). 

89 Petersen, 622 F.3d at 204 (“Section 860 is therefore a 

substantive offense that requires proof of an element that is not 

included in § 841—proof that the distribution, possession or 
24 

analog.90 Consequently, the Board of Immigration Appeals 

erred in concluding that it could select a generic federal analog 

from any provision of the Controlled Substances Act and in 

comparing Rosa’s statute of conviction to the general Federal 

Distribution Statute. 

B. The Record Is Insufficient to Determine 

Whether the New Jersey School Zone Statute 

Is Divisible 

 Having determined that the Federal School Zone Statute 

is the proper generic analog for Rosa’s conviction under the 

New Jersey School Zone Statute, we now “compare that crime, 

as the categorical approach commands, with the relevant 

generic offense.”91 As noted above, the New Jersey School 

Zone Statute provides: 

Any person who violates subsection a. of N.J.S.2C:35-

5 by distributing, dispensing or possessing with intent 

to distribute a controlled dangerous substance or 

controlled substance analog while on any school 

property used for school purposes which is owned by or 

leased to any elementary or secondary school or school 

board, or within 1,000 feet of such school property or a 

 

manufacturing occurred within 1000 feet of a schoolyard.”); 

United States v. McQuilkin, 78 F.3d 105, 108-09 (3d Cir. 1996) 

(“Although § 860 refers to § 841 . . . it requires a separate and 

distinct element—distribution within 1,000 feet of a school.”). 

90 We leave open for another day the proper procedure if no 

federal analog fulfills the conditions we describe here or if two 

or more do. 

91 Mathis, 136 S. Ct. at 2249. 
25 

school bus, or while on any school bus, is guilty of a 

crime of the third degree and shall, except as provided 

in N.J.S.2C:35-12, be sentenced by the court to a term 

of imprisonment.92

The conduct and location elements of that statute, however, are 

disjunctive, and before applying the categorical approach, our 

“first task” is to determine whether it is divisible or 

indivisible—that is, whether it lists alternative elements and 

thereby defines separate crimes or merely lists alternative 

means to commit a single crime.93

The “threshold inquiry” of “elements or means,”94 can 

be quickly resolved if the statute is clear on its face or there are 

prior state court decisions definitively answering the question.

 

92 N.J. Rev. Stat. § 2C:35-7. 

93 See Mathis, 136 S. Ct. at 2256. Rosa directs our analysis 

toward the conduct element, “distributing, dispensing or 

possessing with intent to distribute,” contending that it extends 

beyond the conduct covered by the Federal School Statute. 

The Government has not responded to Rosa’s contentions 

regarding the conduct element of the New Jersey School 

Statute, presumably because we already concluded in a nonprecedential opinion that a conviction under the New Jersey 

School Statute could not constitute an aggravated felony under 

the categorical approach. Chang-Cruz v. Att’y Gen., 659 F. 

App’x 114, 119 (3d Cir. 2016). Because Chang-Cruz is nonprecedential, however, it does not bind this panel and, pursuant 

to longstanding practice in this Court, we will not otherwise 

cite to or rely on it. See Third Cir. Internal Operating P. 5.7. 

94 Mathis, 136 S. Ct. at 2249, 2256. 
26 

95 However, where the statute itself and state law fail to 

provide clear answers, courts may look “to a limited class of 

documents (for example, the indictment, jury instructions, or 

plea agreement and colloquy).”96 If those documents 

“reiterat[e] all the terms of” the statute of conviction or “use a 

single umbrella term” to cover all those terms, the statute is 

likely indivisible, listing only means to commit a single 

crime.97 Conversely, if the documents “referenc[e] one 

alternative term to the exclusion of all others,” the statute is 

likely divisible, listing different elements, “each one of which 

goes toward a separate crime.”98 Only if the statute lists 

different elements may we use those same documents under 

the modified categorical approach to determine which 

elements were relied on in the prior conviction.99 If the statue 

is indivisible, however, we proceed directly to a comparison of 

the statutes’ elements under the categorical approach. 

However, if the documents listed above do not “speak plainly,” 

the record will not be able to satisfy the “demand for certainty” 

required “when determining whether a defendant was 

convicted of a generic offense.”100 

 

95 Id. at 2256-57. 

96 Id. at 2249. 

97 Id. at 2257 

98 Id.

99 Id. at 2257 (stating that, after asking whether the listed items 

are elements of the offense, “Only [then] if the answer is yes 

can the court make further use of the materials, as previously 

described, see supra, at 2253-2254.”); id. at 2253 (describing 

use of the same materials in the modified categorical 

approach). 

100 Id. at 2257 (quoting Shepard, 544 U. S. at 21). 
27 

 

In this case, the text of the New Jersey School Zone 

Statute and New Jersey case law do not definitively determine 

whether the disjunctively phrased conduct and location 

elements of that statute are divisible or indivisible.101 

Therefore, the Court may look to a limited class of underlying 

documents to determine divisibility. However, the record 

before us in this case is one that does not “speak plainly.” In 

particular, we find that the record is too limited to permit us to 

determine if the various items listed in the New Jersey School 

Zone Statute are means or elements or, if necessary, to 

determine which of those elements played a role in Rosa’s 

conviction. In our review of the record, we were unable to 

locate Rosa’s plea agreement or plea colloquy or a charging 

document for his possession charge. Although we do have the 

judgments of conviction for Rosa’s convictions for both 

 

101 Although some case law suggests that New Jersey courts 

treat the New Jersey School Zone Statute’s conduct element 

listing distributing, dispensing or possessing as alternate means 

of fulfilling a single element, the Court is not aware of any New 

Jersey case definitively resolving the issue. See, e.g., State v. 

Maldonado, 137 N.J. 536, 645 A.2d 1165, 1185 (1994) 

(upholding, on other grounds, a jury charge stating that, “to 

find against [the defendant] on this element, the State must 

prove ‘he knew that it was cocaine and intended to distribute 

or dispense it to [another]’ ” (emphasis added)); State v. 

Wilkinson, 126 N.J. Super. 553, 316 A.2d 6, 8 (1973) 

(concluding that there was sufficient evidence to prove that the 

defendant was guilty of “possession of marijuana with intent 

to distribute or dispense it”). 
28 

possession and “sale” of controlled substances,102 we have 

previously held that “we may not look to factual assertions in 

the judgment of sentence.”103 Furthermore, the jury 

instructions available for the New Jersey School Zone Statute 

fail to clarify whether the conduct at issue consists of elements 

or means. There is only one set of jury instructions for 

distributing or dispensing on school property, which suggests 

that distributing and dispensing are interchangeable means. 

However, there is a separate set of instructions for possession 

with the intent to distribute on school property, which may 

indicate that the conduct consists of different elements that the 

jury must find beyond a reasonable doubt. The jury 

instructions, absent support from the other Shepard documents 

from Rosa’s criminal case, are inconclusive. Thus, we remand 

to the Board for further proceedings to supplement the record; 

if the record cannot be supplemented to satisfy the “demand 

for certainty” in analyzing whether the statute lists means or 

elements, Rosa cannot be found to have committed an 

aggravated felony.104

 

102 AR 564-68. 

103 Evanson, 550 F.3d at 293; accord Shepard, 544 U.S. at 26 

(limiting application of the categorical approach following a 

guilty plea “to the terms of the charging document, the terms 

of a plea agreement or transcript of colloquy between judge 

and defendant in which the factual basis for the plea was 

confirmed by the defendant, or to some comparable judicial 

record of this information”). 

104 See Evanson, 550 F.3d at 293-94. 
29 

IV. Conclusion 

 For the foregoing reasons, the petition for review will 

be granted and the order of removal will be vacated and 

remanded for further proceedings.