NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 19-2790 ______________ EDGAR ONASIS MARMOLEJOS ACEVEDO, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ On Petition for Review of a Decision of the Board of Immigration Appeals (A200-545-016) Immigration Judge: Alice Song Hartye ______________ Submitted Under Third Circuit L.A.R. 34.1(a) March 31, 2020 Before: GREENAWAY, JR., PORTER, and MATEY, Circuit Judges (Filed: May 1, 2020) ______________ OPINION* ______________ * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. PORTER, Circuit Judge. The issue here is whether Edgar Onasis Marmolejos Acevedo’s conviction for violating 18 Pa. Cons. Stat. § 911(b)(3) is an aggravated felony, rendering him removable from the United States. We hold that section 911(b)(3) is divisible and that we thus analyze this question under the modified categorical approach. Under that approach, Marmolejos was convicted of an aggravated felony. We will deny his petition for review. I Marmolejos is a native and citizen of the Dominican Republic who entered the United States and then participated in criminal gang activity. Authorities eventually charged Marmolejos with several crimes, and he pleaded guilty to a racketeering offense under 18 Pa. Cons. Stat. § 911(b)(3). The Department of Homeland Security then charged Marmolejos with removal under the Immigration and Nationality Act (“INA”) based on his racketeering conviction. Marmolejos responded by moving to terminate the removal proceedings, arguing that his conviction did not render him removable. The Immigration Judge (“IJ”) denied Marmolejos’s motion and held that he was removable because he was convicted of both an aggravated felony and a controlled substance offense. Marmolejos appealed the IJ’s order to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s holding that Marmolejos was removable on aggravated felony grounds. The BIA did not consider whether Marmolejos was also removable on controlled substance offense grounds. Marmolejos timely petitioned this court for review. 2 II The IJ had jurisdiction over Marmolejos’s removal proceeding under 8 C.F.R. § 1003.14(a). The BIA had jurisdiction over Marmolejos’s appeal of the IJ’s order under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have jurisdiction over Marmolejos’s petition for review under 8 U.S.C. § 1252(a). The BIA issued its own decision on the merits rather than summarily affirming the IJ. Thus, we review the BIA’s decision, not that of the IJ. See Hanif v. Att’y Gen., 694 F.3d 479, 483 (3d Cir. 2012) (citing Sheriff v. Att’y Gen., 587 F.3d 584, 588 (3d Cir. 2009)). To the extent that we find that Marmolejos was convicted of an aggravated felony, our jurisdiction is limited to “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(C), (D). “[W]hether a particular criminal statute is an aggravated felony or related to a controlled substance” is a legal question that we review de novo, without deferring to the BIA under Chevron. Hillocks v. Att’y Gen., 934 F.3d 332, 338 (3d Cir. 2019) (first citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals