2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-18-2015

Edward Walker v. Attorney General United States

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Recommended Citation

"Edward Walker v. Attorney General United States" (2015). 2015 Decisions. Paper 883.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 14-1714

________________

EDWARD CECIL WALKER,

Petitioner

v.

ATTORNEY GENERAL UNITED STATE OF AMERICA;

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

Respondents

________________

On Petition for Review of a Final Order 

of the Board of Immigration Appeals

Immigration Judge: Honorable Walter Durling

(No. A205-135-043)

________________

Submitted Under Third Circuit LAR 34.1(a)

June 8, 2015

Before: AMBRO and COWEN, Circuit Judges

and RESTANI, Judge

(Filed: August 18, 2015)

________________

OPINION*

________________

AMBRO, Circuit Judge

 

 Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by 

designation.

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

constitute binding precedent.
2

Edward Walker petitions for review of the Department of Homeland Security’s 

(“DHS”) Final Administrative Removal Order. Because Walker was wrongly subjected 

to summary removal proceedings as if he had been previously convicted of an 

“aggravated felony” within the meaning of the immigration laws, we vacate the Order 

and remand.

I. Facts

Walker came to the United States on a student visa from Ghana. In May 2013, he 

pled guilty in Pennsylvania court to possession with intent to distribute marijuana, a 

deportable offense. While he was serving his sentence for that crime, the DHS began 

removal proceedings against him. Because the DHS determined that Walker’s marijuana 

offense was an “aggravated felony,” 8 U.S.C. § 1101(a)(43)(B), his removal proceedings 

were summary, and he was not allowed to seek discretionary withholding of removal 

from the Attorney General. Walker contested his removal, but a hearing officer affirmed 

that he was deportable and issued the Removal Order. Walker petitions for review.

II. Jurisdiction

The DHS issued the Removal Order in August 2013.1 Shortly thereafter, Walker 

sought withholding of removal under 8 U.S.C. § 1231 and protection under the 

Convention Against Torture (“CAT”). Thus, although the August 2013 Order was called 

 

1 A typewritten date at the top of the Removal Order reads May 17, 2013; however, 

handwritten dates at the bottom state that it was signed and served on August 8 of that 

year. We read the May date as having been typed when the Order was drafted, and we 

understand the handwritten dates to correspond to the time when the DHS formally 

rendered its decision.
3

“Final,” the pending withholding-of-removal proceedings made it not “final” within the 

meaning of 8 U.S.C. § 1252, the provision governing our jurisdiction over petitions for 

review of immigration decisions by the DHS. See Morales-Izquierdo v. DHS, 600 F.3d 

1076, 1082–83 (9th Cir. 2010) (removal order not final when “inextricably linked” with 

pending proceedings for relief from the order). The withholding and CAT proceedings 

terminated in February 2014, and Walker filed a petition for review less than 30 days 

later, thus giving us jurisdiction.

The Government argues we lack jurisdiction because the DHS has “cancelled” 

Walker’s Removal Order pursuant to 8 U.S.C. § 1228(b). However, this is not possible, 

as neither § 1228(b) nor any other provision of law that the Government cites or of which 

we are aware allows for cancellation of an order. Therefore, as far as we are concerned, 

the Removal Order still exists, and our jurisdiction is intact for review of issues of law 

under § 1252(a)(2)(D). To the extent that the Government has indicated a desire not to 

enforce that Order against Walker, that may be welcome news to him. But so far as we 

can tell, the document remains legally operative, and the current version of the 

Government’s enforcement priorities is no obstacle to our review.2

 

2 The Government has made several attempts to avoid review of Walker’s Removal 

Order. First, in March 2014, it moved to dismiss the case for lack of jurisdiction on the 

ground that Walker had failed to exhaust administrative remedies. In November 2014, 

the Government moved to remand the case to DHS to decide the legal issues before us in 

the first instance. We set the case for a full briefing schedule. In the Government’s 

merits brief, it withdrew the jurisdictional argument (the remedies the Government had 

argued Walker should have exhausted were not in fact available to him), but reiterated its 

request for a remand. When we directed the Government to respond to Walker’s merits 

argument, it filed a letter response arguing again that a remand was appropriate and 

making only the barest pretense of addressing the merits. Next, the Government 
4

III. Merits

The DHS ordered Walker removed because he was convicted of possession with 

intent to distribute marijuana in violation of 35 Pa. Cons. Stat. Ann. § 780-113(a)(30). It 

found that this crime qualified as an “aggravated felony” under 8 U.S.C. 

§ 1101(a)(43)(B). The finding had serious consequences: Walker was “conclusively 

presumed to be deportable” under 8 U.S.C. § 1228(c), and he was not eligible for 

discretionary relief from removal, id. § 1228(b)(5). Thus, it is important to determine 

whether Walker’s prior conviction was an “aggravated felony” within the meaning of the 

immigration laws.

Under the definitions of the Immigration and Nationality Act, “illicit trafficking in 

a controlled substance (as defined in section 802 of Title 21)” is an aggravated felony. 8 

U.S.C. § 1101(a)(43)(B). Under 21 U.S.C. § 802(6), a controlled substance “means a 

drug . . . included in schedule I, II, III, IV, or V of part B of this subchapter.” Marijuana 

is a Schedule I drug. 21 C.F.R. § 1308.11(d)(23); see also 21 U.S.C. § 811(a) 

(authorizing Attorney General to place drugs on schedules). 

But not all illicit trafficking in marijuana is an aggravated felony. Instead, the 

Supreme Court has read the statute to provide that “a noncitizen’s conviction of an 

offense that the Controlled Substances Act (CSA) makes punishable by more than one 

year’s imprisonment will be counted as an aggravated felony for immigration purposes. 

 

purported to “cancel” Walker’s Order, something it has done before (without success). 

See Rodriguez-Celaya v. Attorney Gen., 597 F. App’x 79, 81 (3d Cir. 2015). The 

apparent reason for the Government’s coyness is that, as discussed below, it is plain that 

Walker should prevail on the merits.
5

A conviction under either state or federal law may qualify, but a state offense constitutes 

a felony punishable under the [CSA] only if it proscribes conduct punishable as a felony 

under that federal law.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1683 (2013) (internal 

quotation marks omitted). The question then becomes how we decide whether a 

particular state offense is a federal felony.

The answer is that a state drug offense qualifies as an aggravated felony if the state 

offense necessarily proscribes conduct punishable as a felony under the CSA (this is 

known as the “categorical approach” because we do not inquire into the actual conduct of 

a particular crime, merely into the elements of the relevant state and federal violations). 

When a state law is broader than the CSA and punishes some conduct that is a federal 

felony and other conduct that is not, we apply what has come to be known as the 

“modified categorical approach,” and we may look to “the charging document and jury 

instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or some 

comparable judicial record of the factual basis for the plea” to determine what part of the 

statute provided the legal basis for the state conviction. Id. at 1684. Further, in cases 

where the state offense criminalizes more conduct than the CSA, “we must presume that 

the conviction rested upon [nothing] more than the least of th[e] acts criminalized, and 

then determine whether even those acts are encompassed by the generic federal offense.” 

Id. (internal quotation marks omitted) (alterations in original). Crucially here, when a 

defendant pleads guilty in Pennsylvania, “we may not look to factual assertions in the 

judgment of sentence” because the defendant does not necessarily admit those facts, and 
6

thus it is not clear that he pled guilty to the crime to which the assertions correspond. 

Evanson v. Attorney Gen., 550 F.3d 284, 293 (3d Cir. 2008).

In this case, the DHS considered a docket sheet and a sentence order from the state 

court where Walker was convicted. The docket sheet confirmed that Walker was 

convicted of possession with intent to distribute marijuana, but only the sentence order 

(called a judgment of sentence in Evanson) stated that Walker’s offense involved 187 

grams of marijuana. Although that amount is punishable by over a year’s incarceration 

under the CSA, cf. Catwell v. Attorney Gen., 623 F.3d 199, 209 (3d Cir. 2010), that 

Walker intended to distribute 187 grams is a factual finding we may not consider under 

the modified categorical approach. Given the record before us, we may look only to 35 

Pa. Cons. Stat. Ann § 780-113(a)(30) and the CSA to determine if the state statute 

“necessarily proscribe[s] conduct that is an offense under the CSA,” and whether “the 

CSA . . . necessarily prescribe[s] felony punishment for that conduct.” Moncrieffe, 133 

S. Ct. at 1685 (internal quotation marks omitted).

The 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) & 844(a). The Government 

suggests, though, that because Pennsylvania has a different statute that punishes 

possession with intent to distribute a small amount of marijuana for no remuneration, see
7

35 Pa. Cons. Stat. Ann. § 780-113(a)(31), and because Walker was not convicted under 

that section, he must not have been convicted of distributing a small amount of marijuana 

for no remuneration.

Attractive as the Government’s argument sounds, it wilts on inspection. We have 

held more than once that “distributing a small amount of marijuana for no remuneration 

could be prosecuted under” 35 Pa. Cons. Stat. Ann. § 780-113(a)(30). Evanson, 550 F.3d 

at 289; see also Jeune v. Attorney Gen., 476 F.3d 199, 205 (3d Cir. 2007). Moreover, as 

Walker correctly argues in his opening brief (making a point to which the Government 

does not meaningfully respond), Pennsylvania’s Superior Court has affirmed a conviction 

of possession of marijuana under 35 Pa. Cons. Stat. Ann. § 780-113(a)(16)—a felony—

when the amount was small enough that the defendant could have been charged under 

§ 780-113(a)(31), a misdemeanor covering possession of less than thirty grams of 

marijuana. The Superior Court reasoned that “[t]here is nothing in The Controlled 

Substance, Drug, Device and Cosmetic Act which requires that an accused be prosecuted 

under any particular subsection of the Act based upon the amount of controlled 

substances he or she is alleged to possess. Rather, an accused can be charged with, and 

prosecuted for, any offense which the Commonwealth thinks it can prove.” Com. v. 

Pagan, 461 A.2d 321, 322 n.1 (Pa. Super. 1983). Just so here. It is thus “a realistic 

probability, not a theoretical possibility, that the State would apply [35 Pa. Cons. Stat. 

Ann. § 780-113(a)(30)] to conduct that falls outside” the definition of an aggravated 

felony. Moncrieffe, 133 S. Ct. at 1685. As such, we cannot say that Walker was 

convicted of an aggravated felony, and we must grant the petition for review.
8

* * * * *

Under the modified categorical approach, Walker has not been convicted of an 

aggravated felony. We thus vacate the order of removal.