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Sambare v. Attorney General of United States of America

United States Court of Appeals, Third Circuit

May 28, 2019

MOHAMED SAMBARE, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA Respondent

          Submitted Pursuant to Third Circuit LAR 34.1(a): March 8, 2019

          On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A058-305-898) Immigration Judge: Honorable Kuyomars Golparvar

          Raymond G. Lahoud Norris McLaughlin & Marcus Counsel for Petitioner

          Erik R. Quick Marina Carin Stevenson United States Department of Justice Office of Immigration Litigation Counsel for Respondent

          Before: AMBRO, RESTREPO, GREENBERG, Circuit Judges.

          OPINION

          RESTREPO, CIRCUIT JUDGE

         Petitioner Mohamed Sambare seeks review of the decision of the Board of Immigration Appeals ("BIA"), which dismissed his appeal of an order of removal entered by the Immigration Court. In particular, Sambare asserts that the BIA erred in finding that his conviction under Pennsylvania's statute criminalizing driving under the influence of a controlled substance, 75 Pa. Cons. Stat. § 3802(d)(1)(i) ("Pennsylvania DUI Statute"), constituted a conviction for a "violation of . . . any law or regulation of a State . . . relating to a controlled substance . . ., other than a single offense involving possession for one's own use of 30 grams or less of marijuana" pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). We disagree, and thus we will deny the Petition.

         I.

         Sambare is a thirty-one-year-old native of Côte d'Ivoire and a citizen of Burkina Faso. In 2006, Sambare was admitted to the United States as a lawful permanent resident. In the years following his admission to the United States, Sambare was convicted of various crimes, including credit card theft and forgery. In connection with these convictions, U.S. Immigration and Customs Enforcement ("ICE") initiated removal proceedings in August 2013, when Sambare returned to the United States from Ghana, where he was visiting his mother. ICE asserted that Sambare was inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I), insofar as it alleged that Sambare previously had been convicted of "crime[s] involving moral turpitude." In October 2013, however, an Immigration Court granted Sambare's application for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h) and thus restored his status as a lawful permanent resident.

         In September 2015, police in York County, Pennsylvania, stopped Sambare in his vehicle after he allegedly made an illegal U-turn. During the traffic stop, the officer informed Sambare that he detected the scent of marijuana, and Sambare-who at one point provided a false name to the officer-admitted that he had smoked marijuana prior to operating the vehicle. Pursuant to a subsequent drug screening, Sambare tested positive for marijuana in his system. The Commonwealth charged Sambare with, among other crimes, driving under the influence of a Schedule I controlled substance, in violation of the Pennsylvania DUI Statute. In April 2016, Sambare pleaded guilty to violating the Pennsylvania DUI Statute.

         As a result of Sambare's conviction for violating the Pennsylvania DUI Statute, the U.S. Department of Homeland Security initiated removal proceedings, asserting that Sambare's conviction was for a "violation of . . . any law or regulation of a State . . . relating to a controlled substance . . ., other than a single offense involving possession for one's own use of 30 grams or less of marijuana" under 8 U.S.C. § 1227(a)(2)(B)(i). The Immigration Court found that Sambare was removable, concluding that his violation of the Pennsylvania DUI Statute "is a completely different type of offense involving being under the influence of marijuana and . . . fall[s] outside of the exception" for possession of thirty grams or less of marijuana for personal use.[1] App. 18A. On appeal, the BIA "disagree[d] with [Sambare]'s argument that his controlled substance conviction falls within the scope of the 'possession for personal use' exception in [8 U.S.C. § 1227(a)(2)(B)(i)]" and concluded that his "conviction encompasses more than simply ingesting marijuana for personal use." Id. at 8A. The BIA reasoned that Sambare's conviction "is associated with the prohibition of driving, operating, or actual physical control of the movement of a vehicle . . . while there is a controlled substance in the individual's blood" and that such a conviction "is more serious than simple possession." Id. The BIA thus dismissed Sambare's appeal, and he petitions this Court for review of the BIA's decision.

         II.

         The BIA exercised jurisdiction pursuant to 8 C.F.R. §§ 1003.1(b)(3), 1240.15. The Immigration and Nationality Act of 1965 places restrictions on the jurisdiction of our Court to review final orders of removal. As relevant to this case, the Act restricts our jurisdiction "to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section . . . 1227(a)(2)[](B)," which relates to controlled substances. 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, "to determine whether the necessary jurisdiction-stripping facts are present in a particular case, specifically . . . whether [an alien] has been convicted of one of the enumerated offenses." Borrome v. Attorney Gen., 687 F.3d 150, 154 (3d Cir. 2012). Thus, subject to the principles of deference espoused in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), we review de novo the BIA's legal determination that Sambare's conviction under the Pennsylvania DUI Statute constituted a conviction for a "violation of . . . any law or regulation of a State . . . relating to a controlled substance . . ., other than a single offense involving possession for one's own use of 30 grams or less of marijuana" pursuant to 8 U.S.C. § 1227(a)(2)(B)(i).[2] See Denis v. Attorney Gen., 633 F.3d 201, 205-06 (3d Cir. 2011).

         The sole issue in this case is whether the Court can interpret the word "involving" in such a broad manner so as to construe Sambare's conviction for violating Pennsylvania's DUI Statute as a conviction for "a single offense involving possession for one's own use of 30 grams or less of marijuana," the effect of which would be to enable Sambare to avail himself of the "possession for personal use" exception to removability contained in 8 U.S.C. § 1227(a)(2)(B)(i). Sambare urges us to analyze this issue by applying the categorical approach, which is "a method often used to ascertain whether a prior conviction 'fits' the definition of a generic federal predicate offense for purposes of certain immigration or sentencing consequences." Rojas v. Attorney Gen., 728 F.3d 203, 214 (3d Cir. 2013) (en banc). Under the categorical approach, a court "determine[s] only whether a conviction under [a] state statute 'necessarily' contained all of the elements of the [relevant] federal baseline offense." Id. To make ...


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