NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 18-2935 ______________ GLENNIS ELIAS JUNIOR HARVE, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review from an Order of The Board of Immigration Appeals (Agency No. A047-224-684) Immigration Judge: Daniel A. Morris ______________ Submitted Under Third Circuit L.A.R. 34.1(a) October 1, 2019 ______________ Before: SHWARTZ, FUENTES, and FISHER, Circuit Judges. (Opinion Filed: October 17, 2019) ______________ OPINION* ______________ SHWARTZ, Circuit Judge. * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. Glennis Elias Junior Harve petitions for review of the Board of Immigration Appeal’s (“BIA”) decision denying him cancellation of removal. Because Harve’s state marijuana conviction is not a categorical match to a federal drug felony, he is not disqualified from receiving such relief, and so we will grant the petition for review. I Harve is a native and citizen of Antigua and Barbuda and has lived in the United States as a lawful permanent resident since 2001. In 2015, Harve was convicted of possession with the intent to distribute marijuana under N.J. Stat. Ann. § 2C:35-5(a)(1), (b)(11). The Department of Homeland Security initiated removal proceedings under the Immigration and Nationality Act (“INA”) § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), for a conviction involving a controlled substance. Harve’s charge of removability was sustained, and he applied for cancellation of removal. The Immigration Judge (“IJ”) denied Harve’s application and ordered him removed because his drug conviction made him statutorily ineligible for cancellation under 8 U.S.C. § 1229b(a). The IJ examined Harve’s New Jersey statute of conviction and concluded that Harve failed to show that his conviction did not match the Controlled Substances Act’s (“CSA”) definition of a federal drug felony. See e.g., 21 U.S.C. § 841. The IJ found that Harve did not carry his burden at the cancellation stage to prove his state crime only “involved . . . a few grams” of marijuana and the CSA only exempts a 2 “small amount” of marijuana from felony classification. AR 141.1 The BIA adopted the IJ’s reasoning and affirmed. Harve petitions for review. II2 A A petitioner bears the burden to prove his eligibility for cancellation of removal, see Syblis v. Att’y Gen., 763 F.3d 348, 352 (3d Cir. 2014) (citing 8 U.S.C. § 1229a(c)(4)(A)(i)), including that he was lawfully admitted to the United States as a permanent resident for no less than five years and continuously resided in the United States for no less than seven years after admission, 8 U.S.C. § 1229b(a)(1)-(2). An alien is ineligible for cancellation of removal if he is convicted of an aggravated felony. Id. § 1229b(a)(3). We must therefore determine whether the petitioner’s prior conviction constitutes an aggravated felony that would render him 1 The IJ also found that Harve’s conviction (1) did not meet the personal use exception under the INA and (2) could not constitute an aggravated felony as an act of illicit drug ...
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