2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-26-2010

Omar Thomas v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 08-4706

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1

 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

08-4706

 

OMAR THOMAS, 

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

 

On Petition for Review from the 

Board of Immigration Appeals

BIA No. A041-362-379

Immigration Judge: The Honorable Andrew Arthur

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

September 16, 2010

Before: SLOVITER, BARRY, and SMITH, 

Circuit Judges

(Filed: October 26, 2010)
2

Sandra L. Greene

Greene Fitzgerald Advocates and Consultants

2001 East Market Street 

2nd Floor 

York, PA 17402 

Counsel for Petitioner

Patrick J. Glen

Thomas W. Hussey

Glen T. Jaeger

United States Department of Justice 

Office of Immigration Litigation, Civil Division 

P.O. Box 878 

Ben Franklin Station 

Washington, DC 20044 

Counsel for Respondent

 

OPINION

 

Smith, Circuit Judge.

The Board of Immigration Appeals (BIA) dismissed

Omar Thomas’s appeal from a decision of the Immigration

Judge (IJ) finding him removable. The BIA concluded that

Thomas’s misdemeanor convictions under New York Penal Law

§ 221.40 constituted aggravated felonies. Thomas then filed a
3

petition for review with this court. Simultaneously, Thomas

sought reconsideration by the BIA of its dismissal of his appeal.

The BIA granted the motion for reconsideration, but adhered to

the legal analysis set forth in its initial decision. Thomas did not

petition for review of the BIA’s second decision. We have

before us only the BIA’s initial decision, and must determine

whether we have jurisdiction to review it. We conclude that we

do, and will grant the petition.

I.

Thomas, a native and citizen of Jamaica, entered the

United States in November of 1987 at the age of 13 as a lawful

permanent resident. A little more than nine years later, on

December 9, 1996, Thomas was arrested. On December 10,

Detective Piazza of the New York City Police Department

completed a written statement, the issuance of which, if false, is

punishable under New York Penal Law § 210.45. It alleged that

Thomas committed the criminal sale of marijuana in the fourth

degree in violation of New York Penal Law § 221.40, as well as

criminal possession of marijuana in the fifth degree in violation

of New York Penal Law § 221.10(1). The detective averred that

he had been “informed by Undercover [informant] that . . .

[Thomas] did hand to informant two plastic bags of a green,

leafy substance with a distinct odor in exchange for $20[.]” 

Thomas, who was represented by counsel from the Legal Aid

Society, appeared in the Criminal Court of the State of New

York that same day in what was designated No. 96x072866. His
 The record before us does not contain the transcript of the 1

plea colloquy for the proceeding in No. 97x074755.

 Subsequently, it was determined during the immigration 2

proceeding that this allegation was erroneous because the January 8,

1997 conviction was for possession of marijuana. As a consequence,

the IJ focused on the December 10, 1996 and the January 2, 1998

4

counsel advised the Court that Thomas was “pleading guilty to

221.40 in full satisfaction” and that Thomas waived his right to

prosecution by information. The Court sentenced Thomas to

three days of community service.

Thomas was arrested again on December 27, 1997 for,

inter alia, the criminal sale of marijuana in the fourth degree in

violation of New York Penal Law § 221.40, No. 97x074755. A

police officer prepared a written statement for that case, also

punishable if false under New York Penal Law § 210.45,

alleging that the undercover officer received from Thomas and

another man one bag containing a dried, green, leafy substance

in exchange for $5. According to the certificate of disposition,

Thomas pleaded guilty on January 2, 1998 to violating

§ 221.40. 

1

In addition, Thomas was convicted of several other

controlled substance offenses. On July 31, 2007, he was served

with a Notice to Appear. The Notice charged Thomas with

having been convicted of the “Criminal Sale of Marijuana” in

violation of § 221.40 on January 8, 1997, and as a result 2
misdemeanor convictions under New York Penal Law § 221.40. 

5

thereof, being removable as a criminal alien on two grounds: (1)

for having been convicted of an aggravated felony, 8 U.S.C.

§ 1227(a)(2)(A)(iii); and (2) for having been convicted of a

controlled substance offense, 8 U.S.C. § 1227(a)(2)(B)(i). A

for m ent i t l ed A ddi t ion al C h arg e s of

Inadmissibility/Deportability specifically cited the January 2,

1998 conviction, No. 97x074755, as well as four other

convictions involving marijuana. A625.

Before the IJ, Thomas conceded he was removable on the

second ground alleged in the Notice to Appear, i.e., that his

convictions were controlled substance offenses. He challenged

the averment that he had been convicted of an aggravated

felony, and filed an application for cancellation of removal

under 8 U.S.C. § 1229b(b). Because cancellation of removal

requires the alien to establish, inter alia, that he has not been

convicted of an aggravated felony, id. § 1229b(b)(1)(C), the IJ

directed Thomas to submit additional documentation regarding

his criminal history. Thereafter, the IJ determined that Thomas

had failed to demonstrate that his two convictions for violating

New York Penal Law § 221.40 were not aggravated felonies and

therefore concluded that he was ineligible for cancellation of

removal. 

Thomas appealed to the BIA, challenging the IJ’s

determination that he was ineligible for cancellation of removal
6

because he failed to establish that his misdemeanor convictions

under New York Penal Law § 221.40 were not aggravated

felonies. In a decision dated November 5, 2008, the BIA

misread the IJ’s adjudication as a determination that he was

removable on both of the grounds set forth in the Notice to

Appear, i.e., that his convictions qualified as both controlled

substance offenses and aggravated felonies. Furthermore, the

BIA stated that the IJ had pretermitted his application for

cancellation of removal. In its consideration of the merits of

Thomas’s appeal, the BIA appropriately recognized that there

were two routes to apply in determining whether a conviction is

an aggravated felony, i.e., the illicit trafficking route, and the

hypothetical federal felony route. See Gerbier v. Holmes, 280

F.3d 297 (3d Cir. 2002). The BIA found support in the written

statements of the police officers for the determination that

Thomas had sold the marijuana for remuneration and that such

conduct constituted a hypothetical federal felony under the

Controlled Substances Act. As a result, the BIA agreed with the

IJ that Thomas’s conviction records established that he had been

convicted of an aggravated felony. 

This timely petition for review followed.

Simultaneously, Thomas filed a motion with the BIA seeking

reconsideration, which asserted, inter alia, that the BIA’s

procedural recitation was factually incorrect because the IJ had

found him removable only on the second ground, to wit, that his

convictions qualified as controlled substance offenses. During

the pendency of his petition for review filed with this court, the
7

BIA granted his motion for reconsideration in a decision dated

June 12, 2009. The BIA agreed with Thomas that its initial

decision mischaracterized the ground on which the IJ had

determined he was removable. For that reason, the BIA granted

the motion to reconsider in order to clarify that Thomas was

found removable solely on the basis that his convictions were

controlled substance offenses. The BIA further stated that 

[a]part from the aforementioned factual error,

which we have now corrected, we conclude that

our decision of November 5, 2008, properly

evaluated the legal question presented on appeal,

namely whether [Thomas’s] 1996 and 1998

convictions for fourth degree criminal sale of

marijuana in violation of N.Y. Penal Law

§ 221.40 preclude him from qualifying for

cancellation of removal. For the reasons stated in

our prior decision, we continue to hold that

[Thomas] is ineligible for cancellation of removal

. . . Specifically, the record reflects that [Thomas]

was convicted of making remunerative sales of

marijuana, offenses that correspond to felonies

punishable under the Federal Controlled

Substances Act . . . , namely marijuana

distribution.

Accordingly, the BIA dismissed Thomas’s appeal and affirmed

the order of removal. Within days of the second BIA decision,

the government filed a motion to dismiss the pending petition
 Section 106(a)(6) of the INA was repealed in 1996 and 3

replaced by § 1252(b)(6). The two statutory provisions are almost

8

for review for lack of jurisdiction. Despite that action by the

government, Thomas failed to file a petition for review of the

BIA’s second decision. 

II.

 The Immigration and Nationality Act (INA), as

amended, provides for “[j]udicial review of a final order of

removal[.]” 8 U.S.C. § 1252(a)(1). The government contends

that the BIA’s June 2009 decision granting the motion for

reconsideration effectively vacated the earlier November 2008

decision. The result is, according to the government, that the

BIA’s November 2008 decision no longer constitutes a final

order of removal subject to judicial review. If the government

is correct, because Thomas did not file a petition for review of

the BIA’s June 2009 decision, we lack jurisdiction under

§ 1252(a). 

In Stone v. Immigration & Naturalization Service, 514

U.S. 386 (1995), the Supreme Court considered a similar

argument by an alien that his motion for reconsideration

rendered the BIA’s underlying order nonfinal. Based on the

statutory provisions providing for judicial review in § 106(a)(6)

of the INA, which has been repealed and replaced by

§ 1252(b)(6), the Court reasoned that 3
identical. The similarity between § 1252(b)(6)’s text and its

predecessor § 106(a)(6) is demonstrated by the following comparison

of the two statutory provisions in which the current § 1252(b)(6) is

annotated with strike-outs of some of the text of § 106(a)(6) and

underlining of the new text: “[W]heneverhen a petitioner seeks

review of an order under this section, any review sought with respect

toof a motion to reopen or reconsider such anthe order shall be

consolidated with the review of the order.” Thus, the Supreme

Court’s interpretation of § 106(a)(6) in Stone guides our application

of § 1252 in this case. 

9

[b]y its terms, § 106(a)(6) contemplates two

petitions for review and directs the courts to

consolidate the matters. The words of the statute

do not permit us to say that the filing of a petition

for reconsideration or reopening dislodges the

earlier proceeding reviewing the underlying order.

The statute, in fact, directs that the motion to

reopen or reconsider is to be consolidated with the

review of the order, not the other way around.

This indicates to us that the action to review the

underlying order remains active and pending

before the court. . . .

Were a motion for reconsideration to

render the underlying order nonfinal, there would

be, in the normal course, only one petition for

review filed and hence nothing for the judiciary to

consolidate. 
10

514 U.S. at 394. In other words, Stone instructs that the initial

order of the BIA is “final when issued, irrespective of the later

filing of a reconsideration motion[.]” Id. at 395. 

Stone is controlling. Accordingly, we conclude that the

BIA’s initial decision in November of 2008 constitutes a final

order “irrespective of the later filing” of Thomas’s motion for

reconsideration. Because Thomas filed a timely petition for

review of the November 2008 decision, we have authority under

§ 1252(a)(1) to review that ruling. 

The finality of an order, however, is not the only

requirement that must exist before we may exercise jurisdiction.

See Jaggernauth v. Attorney Gen., 432 F.3d 1346, 1351 (11th

Cir. 2005) (declaring that Stone “makes clear that the finality of

the [BIA’s first order] was not disturbed by [the] filing” of the

motion for reconsideration, but noting that Stone did not resolve

the justiciability issue that arises when reconsideration is granted

and the Board affirms its original order). “To sustain our

jurisdiction in the present case, it is not enough that a dispute

was very much alive” when the petition for review was filed in

the court of appeals. Lewis v. Cont’l Bank Corp., 494 U.S. 472,

477 (1990). “Article III of the Constitution limits federal

‘Judicial Power,’ that is, federal-court jurisdiction, to ‘Cases’

and ‘Controversies.’” U.S. Parole Comm’n v. Geraghty, 445

U.S. 388, 395 (1980). This case-or-controversy requirement

“limits the business of federal courts to ‘questions presented in

an adversary context and in a form historically viewed as
11

capable of resolution through the judicial process[.]’” Id. at 396

(quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)). When the

questions or “issues presented are no longer ‘live,’” the case is

moot. Powell v. McCormack, 395 U.S. 486, 496 (1969). That

is, an issue is moot if “changes in circumstances that prevailed

at the beginning of the litigation have forestalled any occasion

for meaningful relief.” Artway v. Attorney Gen. N.J., 81 F.3d

1235, 1246 (3d Cir. 1996) (internal quotation marks omitted).

Here, there has been a change in the circumstances that

existed at the time Thomas filed his petition for review, i.e., the

BIA subsequently granted his motion for reconsideration. The

BIA’s mere grant of a motion for reconsideration, however, does

not in itself render the petition for review moot. Rather, it is the

substance of the BIA’s subsequent decision, upon

reconsideration, that determines whether there isstill a live issue

for the court of appeals to resolve. For example, if the BIA’s

subsequent decision substantively altered the ratio decidendi in

its earlier disposition and operated to vacate the BIA’s earlier

decision, then the petition for review of the earlier decision is

without effect because there is no longer any order or decision

for the court of appeals to review. On the other hand, if the

BIA’s subsequent decision did not materially alter the rationale

of the earlier ruling, that ruling remains effective and subject to

judicial review by the court of appeals. 

Our sister courts of appeals have employed this sort of

substantive analysis in determining whether there is still a live
12

controversy to be resolved. For example, in Jaggernauth, the

Eleventh Circuit concluded that the BIA’s order granting

reconsideration did not vacate the BIA’s original decision. 432

F.3d at 1350-52. The Eleventh Circuit acknowledged that the

second decision contained some additional commentary by the

BIA about the propriety of its original ruling. The Court

concluded, however, that this commentary did not alter the

effectiveness of the original order inasmuch as the BIA

“explicitly” upheld its original order and noted that it had

“‘acted properly.’” Id. at 1351. Furthermore, the additional

commentary was not incorporated into the original order, and it

did not change the substance of the original order. Id. The

Court determined, therefore, that it had jurisdiction over the

petition for review of the BIA’s original order. Id. at 1352. 

Similarly, in Plasencia-Ayala v. Mukasey, 516 F.3d 738

(9th Cir. 2008), the Ninth Circuit considered whether it had

jurisdiction over a petition for review of a decision of the BIA

in light of the BIA’s subsequent order granting the alien’s

motion for reconsideration. The Court agreed with the Eleventh

Circuit’s approach in Jaggernauth, declaring that 

[w]here the BIA’s decision granting a motion for

reconsideration expressly affirms the BIA’s prior

decision and its analysis does not significantly

differ, there is little reason to require “the

petitioner to raise the identical issue again in a

petition to review the BIA’s decision on the
13

motion to reconsider.” Desta[ v. Ashcroft], 329

F.3d [1179,] 1184 [(9th Cir. 2003)]. Stone

recognizes that Congress created parallel

processes of administrative and judicial review of

the BIA’s decisions to expedite the removal

process. Once a petition for review has been filed,

federal court jurisdiction is divested only where

the BIA subsequently vacates or materially

changes the decision under review.

Id. at 745, overruled on other grounds by Marmolejo-Campos v.

Holder, 558 F.3d 903, 911 (9th Cir. 2004) (en banc).

In contrast to Jaggernauth and Plasencia-Ayala, the

Sixth Circuit decided in Mu Ju Li v. Mukasey, 515 F.3d 575 (6th

Cir. 2008), that the BIA’s grant of an alien’s motion for

reconsideration effectively vacated the BIA’s original decision.

In Mu Ju Li, the alien sought reconsideration, contending that

the BIA had neglected to address her primary argument, which

sought relief under a specific statutory provision. The BIA

acknowledged that it had failed to address this argument,

granted reconsideration, and explained why the statutory

provision on which the alien relied was inapplicable. The alien

did not seek review of the BIA’s second decision granting

reconsideration. The government argued that the alien’s petition

for review of the first decision was no longer reviewable

because the subsequent decision effectively vacated the BIA’s

earlier decision. The Court agreed. It explained that “when the

BIA grants a motion to reconsider and–after considering the
14

issues afresh–renders a new decision addressing the arguments

raised, the original order has been vacated and a new order

entered in its place.” Id. at 578. Based on this reasoning, the

Sixth Circuit concluded that it lacked jurisdiction over the

alien’s petition for review of the BIA’s initial decision. Id. at

578-79.

The question for this Court, then, is whether the BIA’s

June 2009 decision vacated or materially altered its November

2008 decision. After scrutinizing the BIA’s June 2009 decision,

we conclude that the circumstances here are more analogous to

those in Jaggernauth and Plasencia-Ayala. First, it is

significant that the June 2009 decision did not explicitly state

that it was modifying, reversing or vacating the November 2008

decision. Rather, the BIA explained that it was granting

reconsideration because its “prior decision contains a factual

error and therefore we will reconsider the decision in order to

correct our error and clarify the record.” In other words, the

purpose of granting reconsideration was limited to correcting the

factual error. Indeed, in the very next sentence, the BIA stated

that it “once again conclude[d] that [Thomas] [wa]s removable

and ineligible for cancellation of removal.” After the BIA

corrected its factual mischaracterization of the IJ’s order, the

BIA stated that its November 2008 decision “properly evaluated

the legal question presented on appeal[.]” The BIA then

declared: “For the reasons stated in our prior decision, we

continue to hold that [Thomas] is ineligible for cancellation of

removal[.]” In short, it adhered to its earlier legal analysis. We
15

conclude, therefore, that the June 2009 decision did not vacate

or substantially modify the November 2008 decision. As a

consequence, the petition for review of the November 2008

decision continues to present a live controversy for our judicial

review.

III. 

Thomas contends that the BIA erred in its determination

that his 1996 and his 1998 convictions qualified as aggravated

felonies, a determination that rendered him ineligible for

cancellation of removal. Whether Thomas’s convictions qualify

as aggravated felonies is a question of law subject to plenary

review. Evanson v. Attorney Gen., 550 F.3d 284, 288 (3d Cir.

2008); Garcia v. Attorney Gen., 462 F.3d 287, 290-91 (3d Cir.

2006).

An alien may obtain relief from removal if he qualifies

for cancellation of removal under 8 U.S.C. § 1229b. In order to

be eligible for a discretionary grant of cancellation of removal,

an alien must satisfy four requirements. Id. § 1229b(b). One of

these requirements is that the alien has not been convicted of an

offense under 8 U.S.C. § 1227(a)(2). That provision renders a

criminal alien deportable if he committed certain crimes,

including an “aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii).

“[A]ggravated felony” is defined to include, inter alia, “illicit

trafficking in a controlled substance (as defined in section 802

of Title 21), including a drug trafficking crime (as defined in
16

section 924(c) of Title 18)[.]” 8 U.S.C. § 1101(a)(43)(B). The

term “drug trafficking crime” in § 924(c)(2) “means any felony

punishable under” three specified federal statutes, one of which

is the Controlled Substances Act. 18 U.S.C. § 924(c)(2).

Furthermore, the definition of aggravated felony specifies that

the “term applies” regardless of whether the offense violates

“Federal or State law.” 8 U.S.C. § 1101(a)(43). 

In Gerbier, we adopted the approach advanced by the

BIA for determining when a state drug offense constitutes an

aggravated felony. 280 F.3d at 304. That approach recognized

two routes: the illicit trafficking route and the hypothetical

federal felony route. Id. at 305-06. Under the illicit trafficking

route, a state drug conviction will not qualify as an aggravated

felony unless “(1) the offense [is] a felony under the law of the

convicting sovereign; and (2) the offense . . . contain[s] a

‘trafficking element’–i.e., it must involve ‘the unlawful trading

or dealing of a controlled substance.’” Id. at 305 (citation

omitted). Because Thomas’s convictions were misdemeanors

under New York Penal Law, see N.Y. Penal Law § 221.40,

those convictions cannot, by definition, be aggravated felonies

pursuant to the illicit trafficking route. 

“The second route by which a state drug conviction could

be an aggravated felony under the INA is the hypothetical

federal felony route[.]” Id. at 306 (internal quotation marks

omitted). Under this route, a state conviction, regardless of

whether it is classified as a misdemeanor, qualifies as an
17

aggravated felony if it is “‘punishable’ under one of the three

specified statutes if federally prosecuted” and “would be

punishable by a term of imprisonment of over one year.” Id.

(quoting Steele v. Blackman, 236 F.3d 130, 135-36 (3d Cir.

2001) (internal quotation marks omitted). In other words, if the

“state drug conviction is punishable as a felony under the

Controlled Substances Act[,]” it may constitute an aggravated

felony pursuant to the hypothetical federal felony route.

Gerbier, 280 F.3d at 315; Lopez v. Gonzales, 549 U.S. 47, 55

(2006) (declaring that “[u]nless a state offense is punishable as

a federal felony it does not count”). In Evanson, we noted that

under the hypothetical federal felony route a “state marijuana

conviction is . . . only equivalent to a federal drug felony if the

offense involved payment or more than a small amount of

marijuana.” 550 F.3d at 289. 

Our analysis of the hypothetical federal felony route

requires application of the formal categorical approach. Id. at

290. This approach was described in Taylor v. United States,

495 U.S. 575 (1990). In that case, the Supreme Court

considered whether the defendant’s state conviction for burglary

constituted a “burglary” for purposes of 18 U.S.C. § 924(e),

thereby justifying the application of a sentencing enhancement.

The Court concluded that the term “burglary” in § 924(e) did not

depend on the specific definition set forth by a state. Rather, the

term for purposes of § 924(e) meant the generic crime of

burglary that “regardless of its exact definition or label, ha[s] the

basic element of unlawful or unprivileged entry into, or
18

remaining in, a building or structure, with intent to commit a

crime.” Id. at 599. In order to determine if a defendant’s prior

offense warrants the sentencing enhancement under § 924(e),

the Court noted that the sentencing court will apply “a formal

categorical approach, looking only to the statutory definitions of

the prior offense, and not to the particular facts underlying those

convictions.” Id. at 600; see Gonzales v. Duenas-Alvarez, 549

U.S. 183, 186 (2007) (applying the categorical approach to an

immigration proceeding and noting that under the formal

categorical approach a court “should normally look not to the

facts of the particular prior case, but rather to the state statute

defining the crime of conviction”).

Taylor recognized that in some states a burglary offense

was broader than the § 924(e) generic definition of burglary. In

that event, the Court instructed, the sentencing court is permitted

“to go beyond the mere fact of conviction . . . where a jury was

actually required to find all the elements of generic burglary.”

Id. at 602. This modified approach permits a sentencing court

to find that a state offense constitutes a generic burglary under

§ 924(e) if “the charging paper and jury instructions actually

required the jury to find all the elements of generic burglary in

order to convict the defendant.” Id. 

In this case, application of the formal categorical

approach requires examination of the New York statute under

which Thomas was convicted, without consideration of the

particular facts underlying the conviction, to determine whether
19

it is punishable as a felony under § 841(a)(1) of the Controlled

Substances Act for knowingly distributing or possessing with

the intent to distribute a controlled substance. Garcia, 462 F.3d

at 291. Section 221.40 of the New York Penal Law provides,

with an exception not relevant here, that “[a] person is guilty of

criminal sale of marihuana in the fourth degree when he

knowingly and unlawfully sells marihuana[.]” The term “sell”

is defined by statute as meaning “to sell, exchange, give or

dispose of to another[.]” N.Y. Penal Law § 220.00(1). This

definition gives rise to four alternative grounds for establishing

criminal culpability under the statute. Only selling and

exchanging marijuana, however, qualify as the hypothetical

federal felony of distributing marijuana in violation of 21 U.S.C.

§ 841(a). Evanson, 550 F.3d at 289 (declaring that “[a] state

marijuana conviction is therefore only equivalent to a federal

drug felony if the offense involved payment or more than a

small amount of marijuana”) (citing Steele, 236 F.3d at 137).

Merely giving or disposing of marijuana does not constitute a

hypothetical federal felony. Steele, 236 F.3d at 131 (observing

that “one may be convicted of ‘criminal sale” [under § 221.40]

without evidence of a sale as commonly understood”).

Therefore, because § 220.00(1) is in the disjunctive and because

some criminal sales under § 221.40 might not constitute an

aggravated felony, Steele, 236 F.3d at 131, we must depart from

the formal categorical approach and apply the modified

categorical approach. Garcia, 462 F.3d at 291-92; see also

Evanson, 550 F.3d at 290. 
20

Although Taylor articulated the modified categorical

approach in a case involving a conviction by jury, the Supreme

Court determined in Shepard v. United States, 544 U.S. 13

(2005), that sentencing courts could apply the modified

categorical approach to convictions obtained pursuant to guilty

pleas. Id. at 19. It explained that Taylor did not limit the

evidence that may be considered under this modified approach

“strictly to charges and [jury] instructions . . . since a conviction

might follow trial to a judge alone or a plea of guilty.” Id. at 20.

The Court refused, however, to allow a sentencing court to

consider under the modified categorical approach a police report

submitted with the application for the issuance of criminal

complaint. It held that under the modified categorical approach

the inquiry 

to determine whether a plea of guilty . . .

necessarily admitted elements of the generic

offense is limited 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.

Id. at 26. 

Thomas’s convictions under § 221.40 are dated, to say

the least. The records adduced by Thomas in an effort to

establish that he had not been convicted of an aggravated felony
 The government contends that the BIA’s consideration of 4

the police officers’s written statements is consistent with the Supreme

Court’s decision in Nijhawan v. Holder, __ U.S. __, 129 S. Ct. 2294,

2303 (2009), which held that consideration of sentencing related

material is permitted under the modified categorical approach in

21

are sparse. With respect to the December 10, 1996 conviction,

No. 96x072866, there is the police officer’s written statement,

a plea colloquy, what appears to be a docket page, and a

certificate of disposition. For the January 2, 1998 conviction,

No. 97x074755, the record before us contains only the police

officer’s written statement and a certificate of disposition.

There are no documents relating to the guilty plea proceeding in

the 1998 conviction.

The BIA determined that it could consider the police

officers’s written statements, which it characterized as affidavits

of probable cause, because they were charging documents. It

explained that in “New York, a criminal action commences with

the filing of an accusatory instrument” and the officer’s

statements were “the accusatory instrument[s] prepared by the

arresting officer[s] in connection with the filing of [the] criminal

complaint[s].” Because the statements indicated that Thomas

exchanged marijuana for money, the BIA concluded that the

statements established that Thomas’s convictions involved

remunerative sales that would be punishable under 21 U.S.C.

§ 841 of the Controlled Substance Act which makes it a crime

to, inter alia, distribute marijuana. 

4
determining whether an alien’s conviction constituted an aggravated

felony. In a footnote, the government acknowledged that its argument

might not be persuasive as Nijhawan could be distinguished on the

basis that it concerned the approach to be employed for a

“circumstance-specific” offense, as opposed to a “generic” crime such

as an “illicit trafficking” offense. This very distinction was pointed

out by the Supreme Court in Carachuri-Rosendo v. Holder, __ U.S.

__, 130 S. Ct. 2577, 2586 n.11 (2010). For that reason, we conclude

Nijhawan provides no support for the government’s argument that the

BIA appropriately considered the police officers’s written statements.

 We limit our discussion to whether the written statements 5

constitute an information or a misdemeanor complaint under New

York Penal Law § 100.10 because the other accusatory instruments

are not applicable here. 

22

We accept that the police officer’s written statements

played a role in the initiation of this particular criminal action.

Nonetheless, we are unwilling to accept the BIA’s

characterization of the statements as the relevant accusatory

instruments under New York Crim. Proc. Law § 100.10, as we

are unable to find, and we have not been directed to, any

authority establishing that a police officer’s lone written

statement, punishable if false under § 210.45, constitutes an

“information” or a “misdemeanor complaint.” Furthermore, 5

even if the statements alone qualified as informations or

misdemeanor complaints, without some judicial indication of

whether the statement was processed as an information or a

misdemeanor complaint, we would be unable to determine if

such written statements were the relevant charging documents
23

under New York law. Our inability would stem from the fact

that a misdemeanor complaint “must . . . be replaced by an

information” unless the defendant “waive[s] prosecution by

information and consent[s] to be prosecuted upon the

misdemeanor complaint.” N.Y. Crim. Proc. Law §§ 170.65 (1),

(3). As a result, without documentation as to the type of

accusatory instrument that was filed, we could not ascertain if

the defendant had to waive his right to prosecution by

information. In the absence of such documentation, it would be

unclear whether the written statements constituted the relevant

charging documents under New York law. See Evanson, 550

F.3d at 293 n.7 (noting that, because the criminal complaint,

which appended an affidavit of probable cause, was superceded

by the criminal information, it was not the relevant charging

document). 

We are cognizant that the plea colloquy for the December

10, 1996 conviction, No. 96x072866, established that Thomas

waived his right to prosecution by an information. Therefore,

the government might successfully argue on remand that the

police officer’s written statement, assuming that it could be

regarded as an accusatory instrument, constituted the relevant

charging document and provided evidence from the record of

conviction establishing that Thomas engaged in a remunerative

sale of marijuana. This argument falls short in our view because

it fails to recognize that a court is permitted under the modified

categorical approach to consult the charging documents,

together with other judicial records, “to determine what
24

elements formed the basis for a defendant’s underlying

conviction.” Evanson, 550 F.3d at 291 (citing Taylor, 495 U.S.

at 602). Taylor instructed that the purpose of going “beyond

the mere fact of conviction” was to determine whether there was

a finding of each element necessary to convict the defendant.

495 U.S. at 602. Shepard confirmed this focus. It explained

that, under the modified categorical approach, a court may not

look to a police officer’s report appended to the application for

the issuance of a criminal complaint because the purpose of

consulting records is to determine whether during a plea a

defendant “necessarily admitted elements” of the offense. 544

U.S. at 26. In Carachuri-Rosendo v. Holder, the Supreme Court

focused on whether the record of the defendant’s second state

misdemeanor conviction contained any “finding of the fact of

his prior drug offense[,]” which would render the second state

misdemeanor conviction a recidivist simple possession offense

punishable under the Controlled Substances Act, hence an

aggravated felony. 130 S. Ct. 2577, 2586 (2010). Because there

was no “finding of recidivism” in the record of the second state

misdemeanor conviction, id., the Court rejected the

government’s position which relied on what the alien “could

have been convicted of . . . but was not.” Id. at 2587. 

In Steele, 236 F.3d at 136-37, we considered the very

issue addressed in Carachuri-Rosendo. There, we were

presented with the question whether any of the alien’s

misdemeanor convictions for § 221.40 constituted an aggravated

felony because it was punishable under the Controlled
25

Substances Act as a recidivist simple possession. 236 F.3d at

137 (citing 21 U.S.C. § 844). We heeded Taylor’s instruction

that the modified categorical approach must focus on whether

the record for the offense of conviction evinces the necessary

factual findings or admissions for the statute of conviction. We

declared that 

[o]ne cannot suffer the disabilities associated with

having been convicted of an aggravated felony

unless one has been convicted of a felony. This,

of course, means that there must be a judicial

determination beyond a reasonable doubt of every

element of a felony or a constitutionally valid plea

that encompasses each of those elements.

Id. at 136-37. We were troubled by the grave consequences that

could attach to the misdemeanor charges if they qualified as an

aggravated felony, noting that such charges 

are frequently not addressed by a defendant with

the same care and caution as a felony indictment

with its more serious, immediate consequences.

This concern counsels, at a minimum, that we

insist on sufficient formality in the misdemeanor

proceeding to assure that each and every element

of the . . . federal felony is focused on and

specifically addressed in that proceeding.

Id. at 137. Because the recidivist element necessary for a
26

federal felony had never been litigated and there was no judicial

determination regarding that element, we concluded that Steele

had not been convicted of an aggravated felony.

In United States v. Johnson, 587 F.3d 203 (3d Cir. 2009),

we questioned whether the records of the state conviction were

sufficient under the modified categorical approach to establish

the elements necessary to constitute a crime of violence. There,

the plea agreement was “not particularly helpful” and the

colloquy was “not available.” Id. at 206 (internal quotation

marks omitted). As a result, the government urged the

sentencing court in applying the modified categorical approach

to infer from the criminal information, which was the charging

document, that the defendant’s simple assault conviction

constituted a violent crime for purposes of U.S.S.G.

§ 4B1.2(a)(2). 587 F.3d at 206. We recognized that the

criminal information could properly be considered under

Shepard. But we did not believe that we could “conclusively

determine, based on the information alone, whether [the

defendant] actually admitted” the necessary facts to establish a

knowing or intentional assault. Id. at 212. As a result, we

declined to engage in such a “speculative exercise.” Id. at 213.

We remanded the case for further proceedings because the

government had located a transcript of the plea colloquy.

That we hesitated to speculate in Johnson suggests that

we should exercise caution here as well. Thomas pleaded guilty,

but the documentation supporting his two guilty pleas is sparse.
27

It is undisputed that Thomas pleaded guilty to violating

§ 221.40, which makes it a criminal offense to sell marijuana.

As we noted above, in light of the definition of “sell,” there are

four alternative grounds upon which criminal culpability under

the statute may be established, i.e., selling, exchanging, giving

or disposing of marijuana. After scrutinizing the record,

however, we cannot definitively establish that Thomas actually

admitted during the guilty plea proceedings that he sold or

exchanged marijuana, which are the only two grounds for

concluding that a § 221.40 conviction constitutes the

hypothetical federal felony of distributing marijuana in violation

of § 841(a). 

Ordinarily, the factual basis for the plea appears in the

record of conviction, and a court applying the modified

categorical approach should be able to discern which of the

alternative elements a defendant “necessarily admitted” during

a guilty plea colloquy. Shepard, 544 U.S. at 26. The factual

basis for Thomas’s plea could have been placed on the record by

incorporating the written statement of the police officer or by

specific inquiry of Thomas during the colloquy. In this case,

there is no documentation relative to the plea proceeding for the

January 2, 1998 conviction, No. 97x074755. The transcript of

the plea colloquy for the December 10, 1996 conviction, No.

96x072866, reveals that Thomas admitted nothing during that

plea colloquy. Indeed, he never uttered a word. His counsel

informed the Court that Thomas was “pleading guilty to

§ 221.40 in full satisfaction.” In the absence of a specific
28

reference to the police officer’s written statement, we cannot

construe counsel’s entry of a guilty plea on behalf of his client

as an admission to the facts set forth in the statement. Nor is

there any inquiry by the presiding judge during the guilty plea as

to Thomas’s specific conduct. The Court never even inquired

whether Thomas agreed with his counsel’s representation that he

was pleading guilty. 

Because the records of these § 221.40 convictions are

silent regarding the factual basis for the guilty pleas, we cannot

conclusively determine that Thomas actually admitted that he

sold or exchanged marijuana. It is equally plausible that

Thomas’s admission of guilt under § 221.40 was to conduct

which would not constitute a hypothetical federal felony, i.e.

giving or disposing of the marijuana. The police officers’s

written statements are, therefore, of no assistance to us in

determining whether Thomas’s convictions qualify as

aggravated felonies.

The government contends that the written statements by

the police officers, which it presumes constituted the charging

documents, are sufficient under Garcia, 462 F.3d 287. There,

the alien had been convicted under a Pennsylvania statute that

proscribed three offenses: manufacturing, delivering, and

possessing with the intent to deliver or manufacture a controlled

substance, 35 Pa. Stat. Ann. § 780-113(a)(30). We noted that it

was unclear whether the manufacturing prong involved the

trading and dealing element required to demonstrate that the
29

conviction qualified as an aggravated felony under the illicit

trafficking route. Because the statute criminalized some conduct

which would not constitute an aggravated felony, we departed

from the formal categorical approach and considered the

charging document, which alleged that the alien had sold

marijuana to an undercover officer. 462 F.3d at 289, 292.

Although the alien entered an open plea to violating § 780-

113(a)(30), we concluded that the charging document made it

“clear . . . that Garcia pled guilty to delivery and possession with

the intent to deliver[,]” as opposed to the manufacturing offense.

Id. at 293. 

The government’s reliance on Garcia is misplaced. The

criminal information in Garcia set forth a factual basis for

Garcia’s plea that could not have supported a prosecution for

violation of the manufacturing prong of the statute of

conviction. As a result, the averments in the criminal

information ruled out the possibility that during the open plea

Garcia admitted that he engaged in conduct violative of the

manufacturing provision. By eliminating the manufacturing

prong as the factual basis for the plea, the criminal information

eliminated the sole ground for finding that Garcia’s open plea

was to conduct that did not constitute an aggravated felony. As

a consequence, the criminal information made it “clear” that

Garcia pled guilty to the elements of delivery and possession

with intent to deliver under the statute. 

Unlike Garcia, the averments in the written statements of
30

the police officers that Thomas received money in exchange for

marijuana provided a factual basis for Thomas to plead guilty to

each of the alternative elements under § 221.40, i.e., “sell[ing],

exchang[ing], giv[ing] or dispos[ing] of” the marijuana to

another person. N.Y. Penal Law §§ 220.00, 221.40.

Accordingly, the written statements, if they were the charging

documents, did not narrow the factual basis for the plea to the

type of offense that necessarily entailed a remunerative sale. In

other words, the written statements do not make it clear that

Thomas actually pleaded guilty to selling or to exchanging the

marijuana. Without evidence that Thomas actually admitted that

he engaged in a remunerative sale, his open plea to § 221.40 did

not establish that he was convicted of a drug trafficking crime

that qualified as an aggravated felony. 

For the reasons set forth above, we conclude that the

records for the December 10, 1996 conviction and the January

2, 1998 conviction do not establish that Thomas admitted or

assented to engaging in a remunerative sale of marijuana. In the

absence of judicial records to establish such a finding, we

conclude that Thomas’s misdemeanor convictions under

§ 221.40 were not drug trafficking crimes under 8 U.S.C.

§ 1101(a)(43)(B). 

IV.

In sum, we conclude that we have jurisdiction over

Thomas’s petition for review of the BIA’s original decision.
Because Thomas’s misdemeanor convictions for violating New

York Penal Law § 221.40 do not constitute drug trafficking

crimes that qualify as aggravated felonies, we will grant

Thomas’s petition for review and remand for further

proceedings.