2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-18-2012

Ramone Borrome v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 11-1975

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 11-1975

_______________

RAMONE BORROME,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

Respondent

_______________

On Petition for Review of a Final Order

of the Board of Immigration Appeals

Immigration Judge: Honorable Andrew Arthur

(No. A044-824-479)

_______________

Argued March 6, 2012

_______________

Before: SCIRICA, AMBRO,

and VAN ANTWERPEN, Circuit Judges
2

(Opinion filed: July 18, 2012)

Thomas M. Griffin, Esq. [ARGUED]

Surin & Griffin, P.C.

325 Chestnut Street, Suite 1305-P

Philadelphia, PA 19106

Counsel for Petitioner

Eric H. Holder, Jr.

 Attorney General

Anthony C. Payne

 Senior Litigation Counsel

Yedidya Cohen, Esq. [ARGUED]

Thomas W. Hussey, Esq.

Daniel I. Smulow, Esq.

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 OF THE COURT

_______________

AMBRO, 

This immigration case hinges on the relationship 

between prescription “drugs” and “controlled substances.” 

The Federal Food, Drug, and Cosmetic Act (“FDCA”), 21 

U.S.C. §§ 301-399d, prohibits the unlicensed wholesale 

distribution of prescription “drugs” in interstate commerce. 

Circuit Judge
3

See 21 U.S.C. §§ 331(t) & 353(e)(2)(A). Similarly, the 

Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-904, 

bans the unauthorized distribution of “controlled substances.”

See 21 U.S.C. § 841(a). Some prescription “drugs” (like 

Oxycontin) are also “controlled substances,” but many (like 

Lipitor, Zithromax, and thousands of other common 

medications) are not. Importantly, the FDCA’s wholesale 

distribution provisions make no distinction between those 

prescription “drugs” that are “controlled substances” and

those that are not.

With this background, we answer two questions. First, 

is a conviction for violating the FDCA’s wholesale 

distribution provisions an “aggravated felony” — specifically 

“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)” — under 8 U.S.C. 

§§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii)? Second, are these 

FDCA provisions laws “relating to a controlled substance (as 

defined in Section 802 of Title 21)” under 8 U.S.C. 

§ 1227(a)(2)(B)(i)? Our answer to both questions is no. 

Accordingly, we grant the petition for review, reverse, and 

vacate the order of removal.

I. Background

Petitioner Ramone Borrome is a citizen of the 

Dominican Republic, and since August 1996 has been a 

lawful permanent resident of the United States. In May 2002, 

a Special Agent with the United States Food and Drug 

Administration (“FDA”) filed a criminal complaint against 

him and two other men in federal court. The next month, a 

grand jury returned a two-count indictment. 

Count One charged the three defendants with having 

“unlawfully, intentionally, and knowingly engaged in the 
4

unauthorized wholesale distribution in interstate commerce of 

prescription drugs in violation of [21 U.S.C. §§ 331(t) and

353(e)], to wit, [Borrome, and his two co-defendants] 

distributed the prescription drugs Combivir, Diflucan, 

Oxycontin, Serostim, Viagra, Zerit, [and] Zyprexa without 

being licensed to do so.”1

 A.R. at 102 ¶ 1. Count Two 

alleged a conspiracy. Significantly, the indictment did not

charge any of the three defendants with violating the CSA. 

According to his judgment of conviction, Borrome pled guilty 

to Count One while Count Two was dismissed on the 

Government’s motion.

2

In June 2010, Borrome was served with a Notice to 

Appear for immigration removal purposes. He filed a motion 

to terminate, which the Immigration Judge (“IJ”) denied. 

 The District Court sentenced him to 

four months’ imprisonment followed by four months’ home 

confinement.

In a written opinion, the IJ found Borrome removable

under 8 U.S.C. §§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii) as 

an alien convicted of an aggravated felony. The IJ concluded 

that the “hypothetical federal felony test” required him to 

compare the FDCA’s wholesale distribution provisions to the 

CSA to determine whether Borrome’s FDCA conviction is 

analogous to a felony under the CSA. He noted that the CSA 

makes it a felony to distribute knowingly or intentionally a 

 1 These drugs are prescribed for people with the human 

immunodeficiency virus (Combivir, Serostim, Zerit), fungal 

infections (Diflucan), severe pain (Oxycontin), schizophrenia 

(Zyprexa), and erectile dysfunction (Viagra). See The 

National Center for Biotechnology Information, 

http://www.ncbi.nlm.nih.gov/ (last visited July 17, 2012).

2

 There is no plea agreement or plea colloquy transcript in 

the administrative record.
5

controlled substance. See 21 U.S.C. § 841(a)(1) & (b)(1)(C). 

Turning to Borrome’s indictment, he further noted that 

Borrome pled guilty to distributing Oxycontin, which 

contains the Schedule II controlled substance oxycodone. See

21 C.F.R. § 1308.12(b)(1)(xiii). (None of the other six 

prescription “drugs” listed in Borrome’s indictment contains

“controlled substances.”) Thus, the IJ reasoned, “because 

[Borrome’s] offense involved the unauthorized distribution of 

a Schedule II controlled substance,” it is an aggravated felony

under 8 U.S.C. § 1101(a)(43)(B) pursuant to the “hypothetical 

federal felony test.” A.R. at 40.

The IJ also found Borrome removable under 8 U.S.C. 

§ 1227(a)(2)(B)(i) as an alien convicted of violating any law 

“relating to a controlled substance.” After reiterating the 

reference in Borrome’s indictment to Oxycontin, the IJ

concluded that Borrome’s conviction “is plainly a violation of 

a law relating to a controlled substance.” Id. at 42.

In December 2010, the IJ ordered Borrome removed to 

the Dominican Republic. In March 2011, on the 

Government’s motion, the Board of Immigration Appeals 

(“BIA”) summarily affirmed the IJ’s decision without opinion 

pursuant to 8 C.F.R. § 1003.1(e)(4). Borrome timely 

petitioned for review. Before his counsel could file a motion 

to stay removal, he was removed from the United States.

II. Jurisdiction and Standard of Review

The IJ had jurisdiction over Borrome’s removal 

proceedings under 8 U.S.C. § 1229a. The BIA had 

jurisdiction to review the IJ’s order of removal and its 

underlying denial of Borrome’s motion to terminate under 8 

C.F.R. §§ 1003.1(b)(3) and 1240.15.
6

We generally have jurisdiction under 8 U.S.C. § 1252 

to review final orders of removal from the BIA. But 8 U.S.C. 

§ 1252(a)(2)(C) provides that “no court shall have jurisdiction 

to review any final order of removal against an alien who is 

removable” under, among other provisions, 8 U.S.C. 

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

“aggravated felony” or 8 U.S.C. § 1227(a)(2)(B)(i) for having 

been convicted of violating a law “relating to a controlled 

substance.” We have jurisdiction, however, to determine our 

jurisdiction. In other words, we have jurisdiction to 

determine whether the necessary jurisdiction-stripping facts 

are present in a particular case, specifically (1) whether the 

petitioner is an alien and (2) whether he has been convicted of 

one of the enumerated offenses. See Papageorgiou v. 

Gonzales, 413 F.3d 356, 357-58 (3d Cir. 2005); Valansi v. 

Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002). Furthermore, 

nothing in 8 U.S.C. § 1252(a)(2)(C) precludes our review of 

questions of law presented in a petition for review. See 8 

U.S.C. § 1252(a)(2)(D).

“When the BIA affirms an IJ’s decision without 

opinion, we review the IJ’s decision as the final agency 

determination.” Konan v. Att’y Gen., 432 F.3d 497, 500 (3d 

Cir. 2005). We review de novo, without affording the 

Attorney General deference under Chevron, U.S.A., Inc. v. 

Natural Resources Defense Council, Inc. 467 U.S. 837 

(1984), the purely legal questions of whether a violation of 

particular federal criminal statutes is an “aggravated felony”

and whether those statutes are laws “relating to a controlled 

substance.” See Denis v. Att’y Gen., 633 F.3d 201, 207-09 

(3d Cir. 2011); Bobb. v. Att’y Gen., 458 F.3d 213, 217 n.4 (3d 

Cir. 2006); Valansi, 278 F.3d at 207-08.3

 3

 “We have also previously questioned whether a BIA 

decision is entitled to deference when, as here, the BIA has 
7

III. Analysis

A. Removability Under 8 U.S.C. §§ 1101(a)(43)(B) and 

1227(a)(2)(A)(iii): Conviction for Committing an 

“Aggravated Felony”

First, we must determine whether — as the IJ 

concluded — Borrome’s conviction for violating the FDCA’s 

wholesale distribution provisions, see 21 U.S.C. §§ 331(t) &

353(e)(2)(A), is an “aggravated felony” under 8 U.S.C. 

§§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii).

“Any alien who is convicted of an aggravated felony at 

any time after admission is deportable.” 8 U.S.C. 

§ 1227(a)(2)(A)(iii). With respect to a controlled substances

offense, “aggravated felony” means “illicit trafficking in a 

controlled substance (as defined in section 802 of Title 21)

[the definitional section of the CSA], including a drug 

trafficking crime (as defined in section 924(c) of Title 18).” 8 

U.S.C. § 1101(a)(43)(B). “[T]he term ‘drug trafficking 

crime’ means any felony punishable under the Controlled 

Substances Act (21 U.S.C. 801 et seq.), the Controlled 

 

affirmed without opinion the decision of the IJ pursuant to 8 

C.F.R. § 1003.1(e)(4).” Ng v. Att’y Gen., 436 F.3d 392, 395 

n.4 (3d Cir. 2006); see also Smriko v. Ashcroft, 387 F.3d 279, 

289 n.6 (3d Cir. 2004) (“[I]t would seem to be, at the very 

least, an open question as to whether an IJ’s decision affirmed 

through the streamlining process would be entitled to 

Chevron deference . . . [D]eferring to the reasoning of an IJ 

from which the BIA would be free to depart in other cases 

would seem highly problematic.”); Singh v. Att’y Gen., 383 

F.3d 144, 152 (3d Cir. 2004) (“[T]he BIA, by affirming 

without opinion, gave no considered and authoritative 

agency-wide interpretation of the statute . . . .”).
8

Substances Import and Export Act (21 U.S.C. 951 et seq.), or 

chapter 705 of title 46,” which includes the maritime 

controlled substances laws. 18 U.S.C. § 924(c)(2).

We have held, however, that in addition to a federal

felony conviction for violating any of § 924(c)(2)’s three 

statutes, a state controlled substances conviction may also 

qualify as an “aggravated felony” under § 1101(a)(43)(B). 

When presented with such a conviction, we have applied two 

independent tests to determine whether the conviction is an 

“aggravated felony”: the “hypothetical federal felony” test

and the “illicit trafficking element” test. See, e.g., Evanson v. 

Att’y Gen., 550 F.3d 284, 288-90 (3d Cir. 2008); Garcia v. 

Att’y Gen., 462 F.3d 287, 291 (3d Cir. 2006); Gerbier v. 

Holmes, 280 F.3d 297, 313 (3d Cir. 2002). “Under the 

hypothetical federal felony route, we compare the offense of 

conviction to the federal Controlled Substances Act to 

determine if it is analogous to an offense under that Act.” 

Evanson, 550 F.3d at 289. “Under the illicit trafficking 

element test, a state felony drug conviction constitutes an 

aggravated felony if it contains a trafficking element.” Id.

When applying either the “hypothetical federal felony” 

test or the “illicit trafficking element” test under 

§ 1101(a)(43)(B), “and in making aggravated felony 

determinations in general,” we presumptively start our 

analysis by applying the “formal categorical approach.” 

Garcia, 462 F.3d at 291. Under this approach, we “‘must 

look only to the statutory definitions of the prior offenses,’ 

and may not ‘consider other evidence concerning the 

defendant’s prior crimes,’ including . . . ‘the particular facts 

underlying [a] conviction[].’” Id. (quoting Singh, 383 F.3d at 

147-48) (quoting Taylor v. United States, 495 U.S. 575, 600 

(1990))). There are two instances where we may depart from 

the formal categorical approach when conducting an 

aggravated felony analysis: (1) when “[c]onfronted with a 
9

disjunctive statute of conviction, one in which there are 

alternative elements, . . . to determine which of the alternative 

elements was the actual basis for the underlying conviction,”

Evanson, 550 F.3d at 291; see also Garcia, 462 F.3d at 292; 

Singh, 383 F.3d at 162-63; and (2) when “the language of a 

particular subsection of § 1101(a)(43) — the aggravated 

felony enumerating statute — ‘invites inquiry into the 

underlying facts of the case.’” Evanson, 550 F.3d at 291-92 

(quoting Nijhawan v. Att’y Gen., 523 F.3d 387, 393 (3d Cir. 

2008)).

i. Can the “Hypothetical Federal Felony” Test Apply 

to a Conviction for Violating Federal Law?

As a preliminary matter, we must decide whether the 

“hypothetical federal felony” test can apply to a conviction 

for violating a federal law, like the FDCA, that is not one of 

the three federal controlled substances laws enumerated in 

§ 924(c)(2) and incorporated in § 1101(a)(43)(B). We hold 

that it can.

4

 4 The Government does not defend the IJ’s aggravated felony 

analysis. Instead, it asks that we remand this case to the BIA 

to give it “an opportunity to re-consider the immigration 

judge’s determination that Mr. Borrome is removable as an 

aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii)” if we 

conclude that he is not removable under 8 U.S.C. 

§ 1227(a)(2)(B)(i) for having been convicted of a law 

“relating to a controlled substance.” Gov. Br. at 17. 

According to the Government, a remand would give the BIA

“an opportunity to re-consider the [IJ’s] determination that 

the ‘hypothetical federal felony’ approach applies in the 

current situation where the statute of conviction, the FDCA, 

was neither a state statute nor one of the three statutes 
10

As noted, § 1101(a)(43)(B) incorporates § 924(c)(2), 

which defines a “drug trafficking crime” as “any felony 

punishable under” the CSA, the Controlled Substances 

Import and Export Act, or the maritime controlled substances 

laws. 18 U.S.C. § 924(c)(2) (emphasis added). In this 

statute, “Congress referred to felonies ‘punishable under[,]’ 

not ‘convictions obtained under[,]’” the three enumerated 

statutes. Gerbier, 280 F.3d at 204 (quoting Matter of Barrett, 

20 I. & N. 171, 175 (BIA 1990)). Therefore, § 924(c)(2) does 

not require an actual conviction under one of its three laws. 

Id. A conviction that is hypothetically punishable as a felony 

under one of § 924(c)(2)’s three statutes can also qualify as a 

“drug trafficking crime.” Id. at 305, 312.

 

enumerated in 18 U.S.C. § 924 (c)(2).” Id. at 17 n.9. It 

would also give the BIA “an opportunity to re-consider the 

application of the categorical approach to the aggravated 

felony determination in this case.” Id. 

We decline the Government’s request. When Borrome 

appealed the IJ’s ruling to the BIA, the Government filed a 

motion for summary affirmance, claiming (among other 

things) that “the result reached in the decision under review is 

correct . . . and that the issues on appeal are squarely 

controlled by existing precedent and do not involve the 

application of precedent to . . . novel facts.” A.R. at 19. The 

BIA obliged. Now the Government is singing a different 

tune. It gives no good reason why the BIA should have a 

second chance to consider the issues raised on this appeal. 

The BIA had the opportunity to consider the issues and, at the 

Government’s insistence, chose not to do so. 
11

Thus far the BIA and our Court have applied this 

“hypothetical federal felony” test only to convictions for 

violating state controlled substances laws. See, e.g., Evanson, 

550 F.3d at 289-293; Garcia, 462 F.3d at 292-93; Gerbier, 

280 F.3d at 308-11; Matter of Davis, 20 I. & N. Dec. 536, 541 

(BIA 1992). Ordinarily when an alien is convicted of 

violating a federal controlled substances law, he is convicted 

under the CSA. In those cases, there is no need for the 

hypothetical federal felony test because § 924(c)(2) makes an 

actual federal felony conviction under the CSA a “drug 

trafficking crime,” and thus, via § 1101(a)(43)(B), an

“aggravated felony.” But in this case the Government argues 

that the FDCA’s wholesale distribution laws create the same

bases for removability as § 924(c)(2)’s three controlled 

substances laws.

5

Notwithstanding the unusual circumstances of this 

case, we conclude that the “hypothetical federal felony” test 

can apply to a conviction for violating a federal law other 

than those enumerated in § 924(c)(2). There is nothing in the 

text of either § 1101(a)(43)(B) or § 924(c)(2) that limits 

application of the “hypothetical federal felony” test to state 

controlled substances convictions. In fact, § 1101(a)(43)

specifically indicates that the term “aggravated felony” 

applies to an offense “whether in violation of Federal or State 

law.” When applying the test, the key inquiry is simply 

whether the alien’s conviction is hypothetically punishable as 

a felony under any of the three controlled substances laws 

listed in § 924(c)(2).

 5 We have found no precedent for using a conviction under 21 

U.S.C. §§ 331(t) and 353(e)(2)(A) as a basis for removability.
12

ii. Does Borrome’s FDCA Conviction Meet the

“Hypothetical Federal Felony” Test? 

Having determined that the “hypothetical federal 

felony” test can apply in this case, we turn to whether it is 

met. To do so, we first consider whether the presumption in 

favor of the categorical approach applies to our analysis. It is 

well established that the aggravated felony enumerating 

statute at issue here, § 1103(a)(43(B), does not permit 

departure from the categorical approach nor does it invite 

inquiry into the underlying facts of a conviction. See 

Evanson, 550 F.3d. at 292; Garcia, 462 F.3d at 292. If we 

were to depart from the categorical approach, we would have 

to find justification for that departure in Borrome’s statutes of 

conviction. We conclude, however, that the FDCA’s 

wholesale distribution statutes, 21 U.S.C. §§ 331(t) and

353(e)(2)(A), do not permit departure from the formal 

categorical approach because they are not “disjunctive” 

statutes that define distinct offenses. They are instead a 

single offense that is not categorically “punishable under” any 

of § 924(c)(2)’s three controlled substances statutes. 

Therefore, a conviction under these FDCA provisions fails 

the “hypothetical federal felony” test.

We begin by unraveling what Borrome’s statutes of 

conviction, 21 U.S.C. §§ 331(t) and 353(e), actually prohibit. 

In pertinent part, § 331(t) prohibits “the distribution of drugs 

in violation of section 353(e) of this title.”6

 6 A “drug” means

 Section 

(A) articles recognized in the 

official United States 

Pharmacopeia, official 

Homeopathic Pharmacopeia of 
13

353(e)(2)(A), in turn, provides that “[n]o person may engage 

in the wholesale distribution in interstate commerce of drugs 

subject to subsection (b) of this section in a State unless such 

person is licensed by the State in accordance with the 

guidelines issued under subparagraph (B).” “The term 

‘wholesale distribution’ means distribution of drugs subject to 

subsection (b) of this section to other than the consumer or 

patient,” with some exceptions not relevant here. 21 U.S.C. 

§ 353(e)(3)(B). Section 353(b)(1) — the relevant part of the 

“subsection (b) of this section” to which §§ 353(e)(2)(A) and

353(e)(3)(B) refer — subjects to certain prescription 

requirements 

[a] drug intended for use by a man 

which (A) because of its toxicity 

or other potentiality for harmful 

effect, or the method of its use, or 

 

the United States, or official 

National Formulary, or any 

supplement to any of them; and 

(B) articles intended for use in the 

diagnosis, cure, mitigation, 

treatment, or prevention of 

disease in man or other animals; 

and (C) articles (other than food) 

intended to affect the structure or 

any function of the body of man 

or other animals; and (D) articles 

intended for use as a component 

of any article specified in clause 

(A), (B), or (C).

21 U.S.C. § 321(g)(1).
14

the collateral measures necessary 

to its use, is not safe for use 

except under the supervision of a 

practitioner licensed by law to 

administer such drug; or (B) is 

limited by an approved 

application under section 355 of 

this title to use under the 

professional supervision of a 

practitioner licensed by law to 

administer such drug.

For simplicity, these are called prescription drugs.

Section 353(b)(1) does not provide a list of specific 

drugs subject to its prescription requirements. Whether a 

drug is a prescription drug by virtue of § 353(b)(1)(A) is a 

question of fact for the jury. See United States v. Munoz, 430 

F.3d 1357, 1367 (11th Cir. 2005). The FDA does, however, 

publish in what is colloquially known as the “Orange Book” a 

list of what are prescription drugs by virtue of § 353(b)(1)(B) 

because they are “limited by an approved application under 

section 355 of [title 21] to use under the professional 

supervision of a practitioner licensed by law to administer 

such drug.” See U.S. Food & Drug Admin., U.S. Dep’t

of Health & Human Servs., Approved Drug Products 

with Therapeutic Equivalence Evaluations 3-1 to 3-424 

(32d ed. 2012), available at 

http://www.fda.gov/downloads/Drugs/DevelopmentApproval

Process/UCM071436.pdf.

The term “controlled substance” appears nowhere in 

§§ 331(t) and 353(e). A “controlled substance” is defined in 

the CSA to mean “a drug or other substance, or immediate 

precursor, included in schedule I, II, III, IV, or V of part B of 

this subchapter.” 21 U.S.C. § 802(6). A list of “controlled 
15

substances” is provided in 21 U.S.C. § 812 and supplemented 

by 21 C.F.R. §§ 1308.11–.15. The only way to discern an

overlap between prescription drugs and controlled substances 

is to compare the list of prescription drugs in the FDA’s 

Orange Book and the list of controlled substances in the CSA 

and its corresponding regulations. When doing so, it is clear 

that, while some prescription drugs contain chemicals that are

also regulated as “controlled substances” under the CSA,

many do not. For example, Oxycontin — one of the seven 

drugs listed in Borrome’s indictment — is a prescription 

drug, see Approved Drug Products with Therapeutic 

Equivalence Evaluations, supra, at 3-324, and it contains the 

“controlled substance” oxycodone, see 21 C.F.R. 

§ 1308.12(b)(1)(xiii). In contrast, Viagra — another of the 

seven drugs listed in Borrome’s indictment — is a 

prescription drug, see Approved Drug Products with 

Therapeutic Equivalence Evaluations at 3-371, but it does not 

contain a “controlled substance.”

Although some prescription drugs do contain 

controlled substances, §§ 331(t) and 353(e)(2)(A) make no 

distinction between convictions involving prescriptions drugs 

that do contain controlled substances and those that do not. 

In other words, under §§ 331(t) and 353(e)(2)(A), a 

conviction for the unlicensed wholesale distribution of Viagra 

is no different than a conviction for the unlicensed wholesale 

distribution of Oxycontin. 

This is the pivot point for our “hypothetical federal 

felony” analysis. When making aggravated felony 

determinations under § 1101(a)(43)(B), “[w]e must rely only 

on ‘what the convicting court must necessarily have found to 

support the conviction.’” Jeune v. Att’y Gen., 476 F.3d 199, 

205 (3d Cir. 2007) (quoting Steele v. Blackman, 236 F.3d 

130, 135 (3d Cir. 2001)). When Borrome pled guilty to 

violating the FDCA’s wholesale distribution provisions, the 
16

convicting court did not necessarily have to find whether the 

prescriptions drugs involved also contained controlled 

substances. Such a finding would be irrelevant under 

§§ 331(t) and 353(e)(2)(A) because those statutes define a 

single offense, not separate and distinct offenses. Therefore, 

§§ 331(t) and 353(e)(2)(A) do not permit departure from the 

formal categorical approach.

When we apply the categorical approach, we see 

daylight between the elements of a CSA controlled 

substances distribution conviction and an FDCA prescription 

drug distribution conviction. Under the CSA, it is unlawful to 

“knowingly or intentionally . . . distribute . . . a controlled 

substance.” 21 U.S.C. § 841(a)(1). Under the FDCA, it is 

unlawful to “engage in the wholesale distribution in interstate 

commerce of [prescription] drugs” without a proper license. 

21 U.S.C. § 353(e)(2)(A). As our discussion above 

demonstrates, prescription drugs and controlled substances do 

not always go hand-in-hand. If the Government successfully 

proves the elements for a conviction under 21 U.S.C. 

§ 353(e)(2)(A), it does not necessarily prove the elements for 

a conviction under 21 U.S.C. § 841(a)(1). Because a 

conviction under the FDCA for the unlicensed wholesale 

distribution of prescription drugs is not categorically 

“punishable under” the CSA or § 924(c)(2)’s other controlled 

substances laws, Borrome’s conviction fails the “hypothetical 

federal felony test.”

iii. The “Illicit Trafficking” Element Test

Neither the Government before us, nor the IJ, contends 

that Borrome’s conviction meets the “illicit trafficking 

element” test. That test requires that a felony contain a 

“trafficking element,” meaning “the unlawful trading or 

dealing of a controlled substance.” Jeune, 476 F.3d at 202

(quoting Gerbier, 280 F.3d at 305). Because, as discussed 
17

above, §§ 331(t) and 353(e)(2)(A) do not permit departure 

from the categorical approach and they do not require the 

distribution of a controlled substance, they must necessarily 

fail the “illicit trafficking element” test as well.

B. Removability Under 8 U.S.C. § 1227(a)(2)(B)(i): 

Conviction for Violating Any Law “Relating to a 

Controlled Substance”

Next, we consider whether Borrome was removable 

under 8 U.S.C. § 1227(a)(2)(B)(i). That section of the 

Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-

1537, provides that:

Any alien who at any time after

admission has been convicted of a 

violation of (or a conspiracy or 

attempt to violate) any law or 

regulation of a State, the United 

States, or a foreign country 

relating to a controlled substance

(as defined in section 802 of Title 

21), other than a single offense 

involving possession for one’s 

own use of 30 grams or less of 

marijuana, is deportable.

(Emphases added.)

Unless an alien claims that the basis of his alleged 

removability is “a single offense involving possession for 

one’s own use of 30 grams or less of marijuana,” 

§ 1227(a)(2)(B)(i) does not ask courts to scour an alien’s 

indictment and sniff out a controlled substance, or otherwise

to look to the underlying facts of an alien’s conviction, to 

determine whether the alien is removable. Such an inquiry 
18

would be irrelevant. The important statutory phrase is 

“relating to a controlled substance,” and it modifies “law or 

regulation.” See Mielewczyk v. Holder, 575 F.3d 992, 994

(9th Cir. 2009); see also Mizrahi v. Gonzales, 492 F.3d 156, 

159 (2d Cir. 2007) (noting that 8 U.S.C. 

§ 1182(a)(2)(A)(i)(II), which is the inadmissibility 

counterpart to 8 U.S.C. § 1227(a)(2)(B)(i), “applies only if 

the ‘law or regulation’ violated relates to controlled 

substances”). An analysis of the laws or regulations of 

conviction is required. Therefore, our task is to determine 

whether the FDCA’s wholesale distribution provisions, 21 

U.S.C. §§ 331(t) and 353(e)(2)(A), are laws “relating to a 

controlled substance,” not (as the IJ seems to have believed) 

whether the facts of Borrome’s conviction “relat[e] to a 

controlled substance.”7

The INA does not define the phrase “relating to.” But

the BIA has interpreted it expansively: “[t]he ‘relating to’ 

concept has a broad ordinary meaning, namely, ‘to stand in 

some relation; to have bearing or concern; to pertain; refer; to 

bring into association with or connection with.”’ Matter of 

Espinoza, 25 I. & N. Dec. 118, 120 (BIA 2009) (quoting 

Black’s Law Dictionary 1158 (5th ed. 1979) (other quotation 

marks omitted)); see also Matter of Beltran, 20 I. & N. Dec. 

521, 526 (BIA 1992) (“The phrase ‘relating to’ . . . has long 

been construed to have broad coverage.”). The Supreme 

Court, when interpreting the phrase “relating to” in the 

Airline Deregulation Act, has also adopted the broad Black’s 

Law Dictionary definition. See Morales v. Trans World 

 7 As discussed above, the FDCA wholesale distribution 

provisions are non-divisible statutes that define a single 

offense. Therefore, we apply the formal categorical approach 

to determine whether they are laws “relating to a controlled 

substance.”
19

Airlines, Inc., 504 U.S. 374, 383 (1992) (quoting Black’s Law 

Dictionary 1158 (5th ed. 1979)).

We too have explained, in the context of another 

provision of the INA, that the phrase “relating to” is “to be 

read expansively[,] and ‘must not be strictly confined to its 

narrowest meaning.’” Denis, 633 F.3d at 209 (quoting 

Drakes v. Zimski, 240 F.3d 246, 249 (3d Cir. 2001)). As we 

have said, “[t]he term ‘relate’ means ‘to show or establish a 

logical or causal connection between.’” Bobb, 458 F.3d at

219 (quoting Webster’s Third New International Dictionary 

(Unabridged) 1916 (1991)). Other Courts of Appeals have 

given the phrase similarly broad readings. See Mielewczyk, 

575 F.3d at 994-95 (quoting Webster’s dictionary definition 

with approval); Desai v. Mukasey, 520 F.3d 762, 764 (7th Cir. 

2008) (same).

As the breadth of the phrase “relating to” suggests, a

law need not require for its violation the actual involvement 

of a controlled substance in order to “relat[e] to” a controlled 

substance. “If Congress wanted a one-to-one correspondence 

between the [laws of conviction] and the federal CSA, it 

would have used a word like ‘involving’ instead of ‘relating 

to,’ or it could have written the statute the way that it wrote

§ 1101(a)(43)(B) [the aggravated felony controlled 

substances statute].” Desai, 520 F.3d at 766.

8

In this vein, the BIA and several of our sister Courts of 

Appeals have held that a law prohibiting the possession or use 

of drug paraphernalia is a law “relating to a controlled 

substance.” See Matter of Espinoza, 25 I. & N. Dec. at 118; 

 8 For example, to achieve this correspondence, Congress 

could have made removable any alien convicted of an offense 

“involving a controlled substance (as defined in section 802 

of Title 21)” or an offense “punishable under” the CSA. 
20

see also Alvarez-Acosta v. Att’y Gen., 524 F.3d 1191, 1196 

(11th Cir. 2008); Escobar Barraza v. Mukasey, 519 F.3d 388, 

390-91 (7th Cir. 2008); Luu-Le v. I.N.S, 224 F.3d 911, 914-16 

(9th Cir. 2000). Paraphernalia statutes relate to controlled 

substances, even though they prohibit the possession of 

instruments rather than controlled substances themselves, 

because “the possession of an item intentionally used for 

manufacturing, using, testing, or enhancing the effect of a 

controlled substance necessarily pertains to a controlled 

substance.” Espinoza, 25 I. & N. Dec. at 120. The Ninth 

Circuit has reached this conclusion notwithstanding that the 

definition of the term “drug” as used in the California drug 

paraphernalia statute “does not map perfectly” with the 

definition of “controlled substance” under the CSA. See LuuLe, 224 F.3d at 915. 

Similarly, the Seventh Circuit has held that a statute

prohibiting the unlawful delivery of a “Look-Alike 

Substance” is a law “relating to a controlled substance.” 

Desai, 520 F.3d at 764-66. The defendant in that case was 

convicted of selling chocolates purporting to contain, but not 

actually containing, the hallucinogenic controlled substance 

Psilocybin. Id. at 763. He was charged under Illinois law 

with the unlawful delivery of a “Look-Alike Substance,” 

defined as a substance which (1) by its identifying physical 

characteristics “would lead a reasonable person to believe that 

the substance is a controlled substance, or (2) is expressly or 

impliedly represented to be a controlled substance or is 

distributed under circumstances which would lead a 

reasonable person to believe that the substance is a controlled 

substance.” Id. at 764-65 (quoting 720 Ill. Comp. Stat. 

570/102(y)). The Court explained that the state law is one

“related to” a federal controlled substance because 

distributing something that would lead one to believe it 

contained a federal controlled substance brings the state law 
21

“into association with a federal controlled substance.” Id. at 

765. 

It is the fact that there is a relation 

between the Look-Alike and the 

controlled substance that justifies 

making the distribution of the 

Look-Alike illegal. To put it more 

bluntly, the idea of distributing a 

“Psilocybin Look-Alike” would 

not even exist as a legal (or 

linguistic) concept without its 

connection to, or relationship 

with, Psilocybin. The simulacrum 

and the thing itself are always 

connected.

Id. Therefore, according to the Seventh Circuit, the law 

relates to a controlled substance, notwithstanding that a 

“Look-Alike” itself is not a “controlled substance,” as there is 

“enough of a relation to the federal controlled substance to 

warrant removal from the United States for violating the 

law.” Id. at 766.

The drug paraphernalia cases and the Seventh Circuit’s 

decision in Desai convince us that the phrase “any law . . . 

relating to a controlled substance” reaches those laws that do 

not require the actual involvement of a controlled substance 

for a conviction. But we are equally convinced that a law 

does not automatically come within the ambit of that phrase 

simply because a conviction may involve a controlled 

substance. Another section of the FDCA provides a reductio 

ad absurdum.

Under 21 U.S.C. § 353(d)(3)(B), “[d]rug 

manufacturers or authorized distributors of record shall store 
22

drug samples under conditions that will maintain their 

stability, integrity, and effectiveness and will assure that the 

drug samples will be free of contamination, deterioration, and 

adulteration” when distributing the drug samples (unless they 

use mail or common carrier). Distributing drug samples in 

violation of § 353(d), or otherwise failing to comply with its 

requirements, is punishable by not more than one year 

imprisonment, a $1,000 fine, or both. See 21 U.S.C. 

§§ 331(t) & 333(a). If we were to give the phrase “relating 

to” a boundless interpretation, we might conclude that 

§ 353(d)(3)(B) is a law “relating to” a controlled substance 

because it regulates some chemicals that also happen to 

contain “controlled substances.” It would be difficult to 

accept, however, that a non-citizen authorized distributor who

fails to transport a sample of Oxycontin under the proper 

temperature or in the proper container, in violation of 21 

U.S.C. § 353(d)(3)(B), could be deported from the United 

States simply because Oxycontin — in addition to being a 

prescription “drug”— also happens to contain a “controlled 

substance.” The coincidental possibility that a controlled 

substance might be involved with the violation of a law or 

regulation is not enough to make that law or regulation one 

“relating to a controlled substance” for deportability purposes 

under § 1227(a)(2)(B)(i). 

Though we must interpret the phrase “relating to a 

controlled substance” broadly, that phrase must have limits, 

lest it be bent beyond all logical meaning. See Denis, 633 

F.3d at 212 (noting that we must interpret the phrase 

“‘relating to’ broadly, seeking a logical or causal 

connection”). We believe that bringing the FDCA’s 

wholesale distribution provisions within the scope of that 

phrase would extend it beyond its breaking point for two 

related reasons. First, the connection between §§ 331(t), 

353(e)(2)(A), and illicit controlled substance-related activity,

is too attenuated. Second, §§ 331(t) and 353(e)(2)(A) 
23

criminalize a substantial swath of conduct with no nexus to 

controlled substances as defined in 21 U.S.C. § 802.

In this case there is undeniably a connection between

the FDCA wholesale distribution provisions and illicit 

controlled substance-related activity: the FDCA prohibits the 

unlicensed wholesale distribution of prescription “drugs,” the 

CSA in turn criminalizes the unauthorized distribution of 

“controlled substances,” and some prescription “drugs” are 

also “controlled substances.” But that nexus, though simply 

stated, is not at all evident from the face of §§ 331(t) and

353(e) and only emerges after a journey through other laws, 

regulations, and governmental publications. To repeat, 

§§ 331(t) and 353(e) do not use the term “controlled 

substance” nor do they list specific prescription drugs that are 

in fact controlled substances. To see the connection between 

prescription drugs and controlled substances, we must 

rummage through the 400-plus page “Prescription Drug 

Product List” in the FDA’s Orange Book, see Approved Drug 

Products with Therapeutic Equivalence Evaluations, supra at 

3-1 to 3-424, and then hunt for a match in the roughly 100 

pages of schedules of controlled substances in the Code of 

Federal Regulations, see 21 C.F.R. §§ 1308.11–.15. Even if 

we complete this odyssey, the fruits of our labor are for 

naught. It is inconsequential under §§ 331(t) and 

353(e)(2)(A) if the prescription drugs at issue are also 

controlled substances “(as defined in section 802 of Title 

21).” Thus, the “relationship” between §§ 331(t) and 

353(e)(2)(A) and “controlled substances” is a mere 

coincidence devoid of any legal significance under the 

FDCA. 

Moreover, the FDCA wholesale distribution 

provisions, which (to repeat) define a single offense and not 

distinct and separate offenses, prohibit a wide range of 

behavior completely unconnected to controlled substances. 
24

The statutes are blind to whether a particular prosecution 

involves highly addictive prescription painkillers, or 

relatively benign prescription shampoos, topical creams, or 

eye drops. In this regard, we believe §§ 331(t) and

353(e)(2)(A) to be analogous to a law criminalizing the 

receipt of stolen property. In Pennsylvania, for example, a 

person may be convicted of theft if he intentionally receives 

property knowing that it has been stolen. See, e.g., Pa. C.S.A. 

§ 3925(a). Whether that stolen property includes Oxycontin

or cotton candy is inconsequential under the statute. Like 

§§ 331(t) and 353(e)(2)(A), the Pennsylvania receipt-ofstolen-property statute reaches countless activities that are 

completely unconnected to controlled substances. Classifying 

such a law as one “relating to a controlled substance” would 

stretch too far the bounds of the phrase “relating to.”

* * * * *

We hold that (1) a conviction for violating the FDCA’s 

wholesale distribution provisions, see 21 U.S.C. §§ 331(t) &

353(e)(2)(A), is not an “aggravated felony” — specifically 

“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)” — under 8 U.S.C. 

§§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii), and (2) the

FDCA’s wholesale distribution provisions are not laws 

“relating to a controlled substance (as defined in Section 802 

of Title 21)” under 8 U.S.C. § 1227(a)(2)(B)(i).

9

 9 We note that our holding today should have very little effect 

on the vast majority of aliens convicted in federal court for 

violating federal controlled substances laws. Inexplicably, 

Borrome was not charged with violating the CSA, even 

though one of the seven prescription drugs listed in his 

indictment was a controlled substance. If he had been 
25

Accordingly, we grant the petition for review, reverse, and 

vacate the order of removal.

 

convicted of violating the CSA, he almost certainly would be 

removable.