NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 20-2937 ANDREW DAVIS, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA On Petition for Review of an Order of the Board of Immigration Appeals (BIA-1: A060-649-652) Immigration Judge: Edward Grant Argued April 21, 2021 Before: AMBRO, RESTREPO, Circuit Judges, and NOREIKA,* District Judge (Opinion Filed: September 13, 2021) Sandra Greene (Argued) Greene Fitzgerald Advocates and Consultants 2575 Eastern Boulevard, Suite 208 York, PA 17402 Counsel for Petitioner * The Honorable Maryellen Noreika, United States District Judge for the District of Delaware, sitting by designation. Jeffrey Bossert Clark Jennifer J. Keeney Imran R. Zaidi (Argued) Elizabeth R. Chapman Office of Immigration Litigation U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, DC 20044 Counsel for Appellee OPINION** NOREIKA, District Judge Petitioner Andrew Davis was convicted in Pennsylvania state court of possession with intent to distribute 47.5 pounds of marijuana. He argues before this Court that the Board of Immigration Appeals erred in not finding that his conviction could have been for less than thirty grams and was analogous to a federal misdemeanor. Under the modified categorical approach, Davis is correct. We must ignore the undisputed, underlying facts of his offense and find that his conviction could have involved a small amount of marijuana. Thus, the Board’s decision will be vacated and remanded for further proceedings. I. Background Davis is a native and citizen of Jamaica who was admitted as a lawful permanent resident in 2009.1 In February 2019, he pled guilty in Pennsylvania state court to possession with intent ** This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 1 Although Davis was initially admitted as a conditional resident, the Government later determined that he should have been admitted as a permanent resident and changed his classification accordingly. 2 to distribute a controlled substance under 35 P.S. § 780-113(a)(30), which prohibits, in relevant part. “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance.” The judgment of sentence shows that Davis’s conviction involved 47.5 pounds of marijuana. A.R. 527. A. Proceedings Before the Immigration Court In October of 2019, the Department of Homeland Security (“DHS”) initiated removal proceedings based on Davis’ conviction. DHS charged Davis as removable on two grounds: 1) because his conviction was a controlled-substance offense under 8 U.S.C. § 1227(a)(2)(B)(i), and 2) because the conviction was an aggravated felony under § 1227(a)(2)(A)(iii). On December 23, 2019, via counsel, Davis conceded removability for the controlled-substance offense, but denied that the offense constituted an aggravated felony. See A.R. 45. A week later, he applied for asylum, withholding of removal, and Convention Against Torture (CAT) relief, claiming that members of the People National Party in Jamaica had executed or otherwise persecuted several of his family members based on the family’s political ties to the rival Jamaica Labor Party. He also applied for cancellation of removal but the IJ ultimately concluded …
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