The Third Circuit has determined that when analyzing whether a state statute defines a felony under the Controlled Substances Act (and as such, qualifies as an aggravated felony), the agency is limited to comparing the state statute to the most similar federal analog. “Rosa was charged with and convicted of a greater offense—sale of a controlled substance within a school zone—with the additional school zone element not included in the lesser offense. The Government cannot now avoid the implications of Rosa’s actual conviction. “We have reasoned that Congress would not have incorporated the entirety of substantive felony offenses under the Controlled Substances Act as federal analogs if it also intended to permit prosecutors and immigration officials to resort to the federal analogs with the least number of elements.“
“The application of those principles in this case is straightforward. Rosa’s statute of conviction, the New Jersey School Zone Statute, has three elements that may be described as: (1) “distributing, dispensing or possessing with intent to distribute” (2) “a controlled dangerous substance” (3) “while on any school property.” The Federal Distribution Statute, however, lacks that critical third element, requiring only that a person (1) knowingly or intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” (2) “a controlled substance.” Because it lacks what may be described as a location element, the Federal Distribution Statute is not a proper analog to the New Jersey School Zone Statute. Instead, the Federal School Zone Statute supplies that missing element and is the proper federal analog. Consequently, the Board of Immigration Appeals erred in concluding that it could select a generic federal analog from any provision of the Controlled Substances Act and in comparing Rosa’s statute of conviction to the general Federal Distribution Statute.“
“In this case, the text of the New Jersey School Zone Statute and New Jersey case law do not definitively determine whether the disjunctively phrased conduct and location elements of that statute are divisible or indivisible. Therefore, the Court may look to a limited class of underlying documents to determine divisibility. However, the record before us in this case is one that does not “speak plainly.” In particular, we find that the record is too limited to permit us to determine if the various items listed in the New Jersey School Zone Statute are means or elements or, if necessary, to determine which of those elements played a role in Rosa’s conviction. In our review of the record, we were unable to locate Rosa’s plea agreement or plea colloquy or a charging document for his possession charge. Although we do have the judgments of conviction for Rosa’s convictions for both possession and “sale” of controlled substances, we have previously held that “we may not look to factual assertions in the judgment of sentence.” Furthermore, the jury instructions available for the New Jersey School Zone Statute fail to clarify whether the conduct at issue consists of elements or means. There is only one set of jury instructions for distributing or dispensing on school property, which suggests that distributing and dispensing are interchangeable means. However, there is a separate set of instructions for possession with the intent to distribute on school property, which may indicate that the conduct consists of different elements that the jury must find beyond a reasonable doubt. The jury instructions, absent support from the other Shepard documents from Rosa’s criminal case, are inconclusive. Thus, we remand to the Board for further proceedings to supplement the record; if the record cannot be supplemented to satisfy the ‘demand for certainty’ in analyzing whether the statute lists means or elements, Rosa cannot be found to have committed an aggravated felony.”
The full text of Rosa v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/181765p.pdf
