1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 0

- 4615

___________ LLOYD ANTHONY MILLER ,

Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES

________________________ ____________ On Petition for Review of an Order of the Board of Immigration Appeals (A031

- 279

- 696) Immigration Judge: Honorable Walter A. Durling

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

July 20, 2011
B efore: FUENTES, GREENAWAY, JR. , and GREENBERG, Circuit Judges

(Opinion filed : July 25, 2011 )

___________ OPINION

___________ PER CURIAM

. Lloyd Anthony Miller, a native and citizen of Jamaica, petitions for review of a final order of removal entered by the Board of Immig r ation Appeals (“BIA”). For the
reasons that follow , we will deny the petition for review

.2 I.
Miller , currently age fifty

- f ive , entered the United States in 197 2 as a lawful permanent resident. He served in the United States Army f rom August 19 74 to August
1975. In 1982, Miller was convicted in the Philadelphia, Pennsylvania, Municipal Court
of p ossession of a c ontrolled s ubstance, in violation of 35 Pa. Cons. St at. Ann. § 780

- 113(a)(16)

. In 1983, Miller ple d guilty in the same court to delive ry of a controlled substance (marijuana) , in violation of 35 Pa. Cons. Stat. Ann. § 780

- 113 (a)(30)

. In 1999 , Miller pled guilty in a New Jersey state court to third

- degree theft from a person , in
violation of N .J. Stat. Ann. § 2C:20

- 3

. In 2009, after an arrest for driving under the influence, Miller was brought to the
attention of the Department of Homeland Security (“DHS”) , which served a notice to

a ppear charging removab ility due to the above

- mentioned criminal offenses under 8 U.S.C. § 1227(a)(2)(A)(ii i) (conviction for an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B) ), and 8 U.S.C. § 1227(a)(2)(B)(i) (conviction for a controlled substance offense). DHS later served notice of an additional charge o f removability under 8 U.S.C § 1227 (a)(2)(A )(ii) (conviction for two or more c rimes involving moral turpitude ). On January 6, 2010, Miller appeared with counsel at a hearing before an
I mmigr ation J udge (“IJ”)

. Although Miller seemed to concede at the hearing that he wa s removable as charge d und er § 1227(a)(2)(B)(i) for a controlled substance offense, see A.R. at 59, the IJ never accept ed th e concession and did not o rder removal on that basis

. Miller challenged the remaining grounds for removal , in clud ing the charge that his 19833

conviction for delivery of a controlled substance constitutes an aggravated felony under § 1227(a)(2)(A)(iii)

. Mille r did n ot express fear of returning to Jamaica or submit an application for relief from removal on that basis

. In March 2010, while the removal proceedi ng was pending, Miller submitted an application to United States Citizenship and Immigration Services (“USCIS”) seeking to
obtain naturalization based on his service in the United States Army. USCIS denied the application on the grounds that (i) removal p roceeding s w ere pending against Miller , and (ii) Miller failed to demonstrat e his good moral character , citing charges of driving under the influence, assault, and r ecklessly e ndangering a nother p erson that were pending against Miller stemming from his 200 9 arrest

. Thereafter , t he IJ determined from the evidence of record that the re was “ a slight remuneration for [Miller]‟s delivery of marijuana ” in the 1983 offense , A.R. at 38, and
concluded , therefore, that the government had sustained its burden in s how ing that the 1983 offense is an aggravated felony under § 1227(a)(2)(A)(iii). T he IJ ordered removal
to Jamaica based on the aggravated felony determination

. 1 Miller, with the assistance of a different lawyer, appealed to the BIA and raised
three conte ntions i n his notice of appeal: (1) he expressed a desire to apply for cancellation of removal; (2) he argued that the IJ fail ed to comply with Matter of Recinas , 23 I. & N. Dec. 467 (BIA 2002) ; and (3) he claimed that the IJ “abused his discretion.”

1 It is undisputed that the IJ did not susta in the charge s of removability under 8 U.S.C. §§ 1227 (a)(2)(A)(ii) and (a)(2)(B)(i). See Respondent‟s Br. at 10 n.7.4

A.R. at 27. Miller did not file a n appellate brief.
The BIA dismissed the appeal. It found no error in the determination that the 1983
conviction is an aggravated felony under § 1227(a)(2)(A)(iii) because the offense
involved illicit traffic king in a contro lled substance. (The BIA made no finding regarding the other charges of removability.) The BIA further found that Miller is ineligible for most forms of relief, including cancellation of removal, due to t h e a ggravated felony
conviction

. T he BIA observed that Miller expressed no fear of returning to Jamaica.
Miller timely filed a pro se p etition for review in this Court

. II.
We have jurisdiction under 8 U.S.C. § 1252( a )(1) to review a final order of
removal. While generally we lack jurisdiction over a petition for review if the alien , as here, is removable due to an aggravated felony conviction , see 8 U.S.C. § 1252(a)(2)(C) , we retain jurisdiction over constitutional claims and questions of law

. 8 U.S.C. § 1252(a)(2)(D ) ; Papageorgiou v. Gonzales , 413 F.3d 356, 358 (3d Cir. 2005).
Th e primary “ question of law” that Miller present s for our review is whether the
BIA erred in determin ing that his 1983 conv iction for delivery of a controlled substance
constitutes an aggravated felony. According to Mille r , the evidence does not support the aggravated felony determination , and therefore he should be eligible to apply for a cancellation of removal

. Exercising our “jurisdiction to determine de novo whether [ Miller‟s ] conviction constituted an aggravated fel ony ,” Evanson v. Att‟y Gen. , 550 F.3d5

284, 288 (3d Cir. 2008) , w e discern no error in the BIA‟s determination

. 2
A n aggravated felony is defined to include “illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). We have explained
that a state drug conviction constitutes an aggravated felony “ if (a) it would be punishable as a felony under the federal Controlled Subs tances Act, or (b) it is a felony under state law and includes an illicit trafficking element. ” Evanson , 550 F.3d at 288. Accordingly,

“ w e apply two independent tests for determining whether a state court drug conviction
constit utes an aggravated felony : the „illicit trafficking element‟ route and the „hypothetical federal felony‟ route. ” Id

. A t 288

- 89.
In Evanson , we considered the statute at issue here ( 35 Pa. Stat. Ann. § 780

-

2 Respondent contends that, because Miller raised no c hallenge to his removability before the BIA, he failed to exhaust administrative rem edies under 8 U.S.C. § 1252(d)(1) , leaving this Court without jurisdiction to review whether the 1983 conviction constitutes an aggravated felony. We conclude that Miller satisfied the exhaustion requirement. While Miller did not expressly challenge his removability before the BIA, he did request an opportunity to apply for cancellation of removal, which he had been precluded from seeking by virtue of the IJ‟s aggravated felony determination. See Evanson , 550 F.3d at 287 n.2 . In addressing Miller‟s appe al on the merits, the BIA expressly reviewed, and found no error in, the determination that Miller‟s 1983 offense is an aggravated felony, and further held that, “[a]s a[n LPR] convicted of an aggravated felony, [Miller] is ineligible for most forms of rel ief from removal, including ... cancellation of removal[.]” A.R. at 3. On this record, even if we assume that Miller‟s notice of appeal did not adequately alert the BIA of his desire to challenge the aggravated felony determination, the BIA reached the mer its of the issue nonetheless. Accordingly, we have jurisdiction over Miller‟s challenge to the BIA‟s aggravated felony determination. See Lin v. Att‟y Gen. , 543 F.3d 114, 126 (3d Cir. 2008) (holding that because “ the BIA sua sponte addressed and ruled on the unraised issue

... we have jurisdiction to c onsider the petition for review”).6

113(a)(30) ) and observed , in appl ying the hypothetical federal felony test , that “[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.” Evanson , 550 F.3d at 289. I n Jeune v. Att orney Gen eral , 476 F.3d 199 (3d Cir. 2007), we consid ered whether a conviction under § 780

- 113(a)(30) i s analogous to a violation of 21 U.S.C. § 841(b)(1)(D) , and “[w] e found that distributing a small amount of marijuana for no remuneration could be prosecuted under the Pennsylvania statute, and thus that we could not determine that it was equivalent to a federal drug felony without more information
about the conviction. ” Evanson , 550 F.3d at 289. In addition, u nder the illicit trafficking element test, “ a state felony drug conviction constitutes an aggrava ted felony if it contains a trafficking element ,” id. , and because § 780

- 113(a)(30) may encompass conduct that does not involve trading or dealing (such as manufacturing for personal use ),

“ more t han the bare fact of conviction” is needed to satisfy the il licit trafficking element.
J e u ne , 476 F.3d at 204. In short, “ under either the hypothetical federal felony test or the illicit trafficking element test, a conviction under [ § 780

- 113(a)(30) ] is not necessarily an aggravated felony. ” Evanson , 550 F.3d at 290. In Garcia v. Attorney General , 462 F.3d 287 (3d Cir. 2006) , we addressed a § 780

- 113(a)(30) offense under the illicit trafficking element test
and observed that a violation t his statute is a felony under Pennsylvania law, and
therefore “ the first re quirement of the illicit trafficking route is clearly satisfied. ” Id. A t
293. Turning to whether the offense contained a “trafficking element,” we conclude d in7

Garcia that “ we may examine the charging instrument to determine whether [petitioner]‟s
convic tion ” meets this requirement

. Id. A t 293; see also Evanson , 550 F.3d at 293 (explaining that “ the criminal information, as the relevant charging document, is an appropriate record to consider,” but “ a court applying the modified categorical approach
may o nly consider the charging document to the extent that the petitioner was actually convicted of the charges ”). In the present case, the government submitted a verified copy of the relevant charging instrument ( the “criminal complaint”) from Miller‟s 1983 c onviction

. See A.R.
at 12 5 ; see also Garcia , 462 F.3d at 292 ( explaining that “[s] ince t he record of conviction includes the charging instrument, and t he criminal complaint in Garcia‟ s case is the relevant charging instrument, we may appropriately examine that complaint ”) (citation omitted). The c riminal complaint reflects that, on or about September 5, 1982, Miller
“did deliver to Pol. B ENNETT #9904, T WO (2) MANILA ENVELOPES, EACH
CONTAINING MARI HUNA [sic ] (ANALYZED BY POL. CHEMIST KERZNER) for $10.00 U S CURRENCY.” A.R. at 125. Miller was charged with three offenses : (1) delivery of a controlled substance, (2) possession with the intent to deliver a controlled substance, and (3) knowing and intentional possession of a controlled substance. Id. A
sep arate document from the verified state record titled “criminal transcript” memorialize s the d isposition of Miller‟s case. See A.R. at 124. Th e criminal transcript reflects that
Miller pled guilty to only one of the three charged offenses, “Del. O f C/S , ” which the parties do not dispute i s shorthand for “delivery of a controlled substance.” I d. A t 124

.8

The prosecution was withdrawn on the other charges. Id. Miller was sentenced to fine s and costs totaling $2 5 0.00

. Id.
This record “ make [s] it clear t hat [Miller] actually pleaded guilty to selling or to exchanging the marijuana.” Thomas v. A tt‟y Gen. , 625 F.3d 134, 148 (3d Cir. 2010)

. In particular, it is clear from the evidence that Miller pled guilty under § 780

- 113(a)(30) to
d eliv ering two envelop es containing marijuana to an undercover officer in exchange for
ten dollars. A n offense contains a trafficking element when it involve s “the unlawful trading or dealing of a controlled substance

. ” Gerbier v. Holmes , 280 F.3d 297, 305 (3d Cir. 2002)

. “E ssential to the concept of „trading or dealing‟ is activity of a business or merchant nature, thus excluding simple possession or transfer without consideration.”
Steele v. Blackman , 236 F.3d 130, 135 (3d Cir. 2001). While Miller‟s offense may have
invol v ed a “ small amount ” of marijuana, 3 the offense, nevertheless , plainly involved trading or dealing , and therefore contain ed a trafficking element. See Garcia , 462 F.3d at
293

. The BIA, therefore, did not err in holding that Miller is removable as an aggr avated
felon under § 1227(a)(2)(A)(iii) , and, as a result the conviction , he is ineligible to seek
cancellation of removal. See 8 U.S.C. § 1229b(a)(3) ; Catwell , 623 F.3d at 209

. 4

3 See Catwell v. Att‟y Gen. , 623 F.3d 199, 209 (3d Cir. 2010) ( “Congress contemplated and intended „small amount‟ to mean the amount of marijuana an individual would be likel y to use on a single occasion, in a social setting.”).

4 Miller also claims that he is entitled to relief because his 1983 conviction was entered in violation of Padilla v. Kentucky , 130 S. Ct. 1473 (2010). Miller failed, however, to exhaust a ny Padilla

- related issue, and the BIA did not address any such issue on its own initiative. As such, we lack jurisdiction to review this claim.9 III.
For the r easons stated , we will d eny the petition for review. Respon dent‟s motion
to strike the non

- record evidence attached to Miller‟s opening brief is granted; we have limited our review, as we must, to the contents of the administrative record. See 8 U.S.C. § 1252(b)(4)(A)

.