2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-8-2014

Mario Llin Santana v. Attorney General United

States

Precedential or Non-Precedential: Non-Precedential

Docket 13-3082

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Mario Llin Santana v. Attorney General United States" (2014). 2014 Decisions. Paper 27.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/27
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3082

___________

MARIO JOSE LLIN SANTANA,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A044-446-371)

Immigration Judge: Honorable Miriam K. Mills

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 2, 2014

Before: JORDAN, GREENBERG and VAN ANTWERPEN, Circuit Judges

(Opinion filed: January 8, 2014)

___________

OPINION

___________

PER CURIAM

Mario Llin Santana, a citizen of the Dominican Republic, became a lawful 

permanent resident of the United States in 1994. In 1997, he pled guilty to and was 

convicted of attempted criminal sale of a controlled substance in the third degree, in 

violation of New York Penal Law (“NYPL”) § 220.39. In 2010, Llin Santana returned 
2

from a trip to the Dominican Republic and was questioned by an immigration official. 

He admitted to his prior conviction, though he claimed that he only pled guilty because 

his attorney told him to. He was subsequently served with a Notice to Appear charging 

him as inadmissible under both 8 U.S.C. § 1182(a)(2)(A)(i)(II), as an alien who has been 

convicted of “a violation of . . . any law . . . of a State . . . relating to a controlled 

substance,” and § 1182(a)(2)(C), as an alien who the Attorney General knows or has 

reason to believe “has been an illicit trafficker in any controlled substance.” Those 

charges were sustained, and he was ordered removed. 

Llin Santana’s appeal to the Board of Immigration Appeals (“BIA”) was 

dismissed on June 5, 2013, and he timely petitioned for review.1 Because Llin Santana

was found removable due to a conviction of a controlled substance offense, see 8 U.S.C. 

§ 1182(a)(2)(A)(i)(II), we lack jurisdiction to review his final order of removal, 8 U.S.C. 

§ 1252(a)(2)(C), except to the extent that he raises constitutional claims or questions of 

law. 8 U.S.C. § 1252(a)(2)(D). As a threshold matter, such claims must be colorable, 

i.e., non-frivolous. See Pareja v. Att’y Gen.

Llin Santana presently claims that the Government failed to demonstrate that his 

conviction constituted a felony punishable under the Controlled Substances Act (“CSA”). 

However, no such demonstration is required; any conviction for a crime involving a 

, 615 F.3d 180, 186 (3d Cir. 2010).

 1 The Government incorrectly argues that Llin Santana’s petition for review was untimely 

filed on July 8, 2013. The petition for review was received by the Court on July 3, 2013, 

28 days after the Board’s dismissal of his appeal. See 8 U.S.C. § 1252(b)(1) (providing 

for 30-day deadline in which to file petition for review).
3

controlled substance is grounds for inadmissibility under § 1182(a)(2)(A)(i)(II). See

Mizrahi v. Gonzales, 492 F.3d 156, 158–59 (2d Cir. 2007) (explaining that “the statutory 

language indicates Congress’s “intent to sweep broadly, applying to a violation of ‘any

law or regulation,’ whether state, federal, or foreign, ‘relating to a controlled substance’”) 

(quoting § 1182(a)(2)(A)(i)(II)); see also Borrome v. Att’y Gen., 687 F.3d 150, 160 (3d 

Cir. 2012) (noting that the phrase “relating to” is to be read expansively). Moreover, Llin 

Santana does not challenge the BIA’s holding that all of the substances criminalized by 

NYPL § 220.39 are included in the CSA, and they are.

2 Thus, any conviction under 

NYPL § 220.39 constitutes a violation of a law “relating to a controlled substance” as 

defined by the CSA and justifies a finding of inadmissibility under § 1182(a)(2)(A)(i)(II)

irrespective of whether the record identifies the substance involved. Cf. Rojas v. Att’y 

Gen.

 2 The CSA provides a list of “controlled substances” at 21 U.S.C. § 812, which is 

supplemented by 21 C.F.R. §§ 1308.11–.15. Borrome, 687 F.3d at 158. The Federal 

Analog Act further provides that the analog of any of the listed substances shall 

themselves be treated as a controlled substance under schedule I. 21 U.S.C. § 813. 

NYPL § 220.39 criminalizes the sale of numerous classes of drugs which are enumerated 

in NY Public Health Law § 3306. All of the substances that could be involved in a 

conviction under NYPL § 220.39 are either included in the CSA or are analogues of 

listed substances. Compare NYPL § 220.39 and NY Public Health Law § 3306 with 21 

U.S.C. §§ 802(6); 812(c); 813.

, 728 F.3d 203, 204, 206 (3d Cir. 2013) (en banc) (holding that the Government was 

required to prove the identity of the controlled substance involved in a Pennsylvania 

offense where “Pennsylvania’s controlled substances schedules list drugs that are not in 

the federal schedules”). To the extent Llin Santana argues that the Government has not 
4

met his burden to demonstrate his inadmissibility because the record simply refers to a 

“dangerous drug,” his claim is frivolous. 

The petition for review presents no colorable claims,

3 and we will dismiss it for 

lack of jurisdiction. Pareja, 615 F.3d at 186. 

 3 Because Llin Santana is inarguably inadmissible under § 1182(a)(2)(A)(i)(II), any 

challenge to the BIA’s determination that he is inadmissible under § 1182(a)(2)(C) is 

frivolous. Llin Santana’s contention that he is actually innocent of the crime at issue and 

pled guilty only on the advice of counsel also is not colorable; a conviction remains a 

conviction for immigration purposes unless and until it is overturned, which Llin Santana 

does not allege has occurred here. See Paredes v. Att’y Gen., 528 F.3d 196, 198–99 (3d 

Cir. 2008). Accordingly, these claims are beyond our jurisdiction. 8 U.S.C. 

§ 1252(a)(2)(D); Pareja, 615 F.3d at 186.