PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 18-1765 WILLY DE JESUS ROSA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review from the Board of Immigration Appeals (Agency No.: A043-843-657) ______________ Argued March 14, 2019 ______________ Before: McKEE, ROTH, and FUENTES, Circuit Judges (Opinion filed: January 29, 2020) Raymond P. D’Uva, I Alexandra Miron Law Offices of Raymond P. D’Uva 17 Academy Street Suite 1000 Newark, NJ 07102 Derek A. Decosmo (Argued) DeCosmo & Rolon 511 Market Street Camden, NJ 08102 Counsel for Petitioner Matthew B. George (Argued) United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent Eric M. Mark, Esq. (Argued) 201 Washington Street Newark, NJ 07102 Counsel for Amici Curiae American Immigration Lawyers Association ________________ OPINION OF THE COURT ________________ FUENTES, Circuit Judge 2 This appeal asks us to address an issue of first impression under the Immigration and Nationality Act (the “Act”) that carries implications beyond immigration law: whether the categorical approach, which compares the elements of prior convictions with the elements of crimes under federal law, permits comparison with any federal crime, or only the “most similar” one. That issue arises in noncitizen Willy de Jesus Rosa’s petition for review from the determination of the Board of Immigration Appeals that his prior New Jersey convictions for possession and sale of a controlled substance within 1,000 feet of a school constitute aggravated felonies under the Act. Specifically, he challenges the Board’s conclusion that his prior convictions could be compared not only to the federal statute proscribing distribution near a school but also to the federal statute prohibiting distribution generally. We agree that the Board erred in that conclusion and will grant the petition for review and remand for further proceedings. I. Background The facts in the administrative record before us may be summarized as follows: Rosa, a citizen of the Dominican Republic, was admitted to the United States as a legal permanent resident in 1992, when he was still a child. When his family arrived in the United States, they resided in Paterson, New Jersey, where Rosa eventually attended high school. While Rosa was in high school, his family, including five of his seven siblings, moved out of state; Rosa remained in New Jersey to complete high school. 3 Shortly after he graduated from high school in 2001, Rosa lost his job as a car valet and became associated with the “wrong people.”1 In 2003, he was arrested for drug charges, and on February 20, 2004, he was convicted following a guilty plea in New Jersey Superior Court for the possession and sale of a controlled substance—cocaine—within 1,000 feet of school property in violation of § 2C:35-7 of the New Jersey statutes (the “New Jersey School Zone Statute”).2 Eleven years later, the Department of Homeland Security served Rosa with a Notice to Appear, charging that Rosa was removable for the conviction of a controlled substances offense3 ...
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