PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 17-2384 _______________ DEXTER ANTHONY HILLOCKS, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _______________ On Petition for Review of a Decision of the Board of Immigration Appeals (A047-365-390) Immigration Judge: Walter Durling _______________ Argued: January 10, 2019 Before: AMBRO, BIBAS, and FUENTES, Circuit Judges (Opinion filed: August 12, 2019) James C. Martin Reed Smith 225 Fifth Avenue Suite 1200 Pittsburgh, PA 15222 Natalie R. Salazar M. Patrick Yingling [ARGUED] Reed Smith 10 South Wacker Drive 40th Floor Chicago, IL 60606 Counsel for Petitioner Dexter Anthony Hillocks Benjamin Zeitlin Gregory A. Pennington, Jr. [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent Attorney General United States of America _______________ OPINION OF THE COURT _______________ 2 FUENTES, Circuit Judge. Petitioner Dexter Anthony Hillocks is a lawful permanent resident who was convicted of the Pennsylvania state crime of using a communication facility—i.e., a phone— to facilitate a felony. The question before us is whether that crime constitutes either an “aggravated felony” or a “conviction relating to a controlled substance” under federal immigration laws. Either would make him removable. Typically, when deciding whether a particular state crime falls into those categories, the immigration courts look to see if the statute matches the federal definition of a qualifying crime. This is known as the “categorical approach.” 1 In some instances, however, a particular statute is divisible into multiple alternate elements—i.e., facts that a jury must find beyond a reasonable doubt. In that situation, we instead apply the “modified categorical approach.” The major difference is that, with the modified approach, courts can look at the records of conviction to see which of the alternatives applied in a particular case; under the broader categorical approach, courts do not look at any court documents at all, and 1 Under our Circuit’s current stated precedent, we do not apply the categorical approach to questions of whether a particular crime relates to a controlled substance. However, as explained more fully in this Opinion, we conclude that the Supreme Court has directed us to apply the categorical approach to questions of whether a crime relates to a controlled substance. 3 instead “presume that the state conviction rested upon the least of the acts criminalized by the statute.”2 The Board of Immigration Appeals concluded that the modified categorical approach applied to Hillocks’s conviction here. Applying that approach, the Board looked to Hillocks’s plea colloquy and found that Hillocks used a phone to facilitate the sale of heroin. The Board found that his conviction was therefore both an aggravated felony and related to a controlled substance, and accordingly ordered Hillocks removed. On appeal, Hillocks argues that the Board misapplied the approach. He asserts that the various felonies that a person could facilitate with a phone are “means” by which the crime could be committed, not alternative elements, and that, under this analysis, his conviction does not make ...
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