PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-1877 HASSAN BAH, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent. No. 18-2106 HASSAN BAH, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent. On Petitions for Review of an Order of the Board of Immigration Appeals. Argued: September 18, 2019 Decided: February 13, 2020 Before THACKER, RICHARDSON, and RUSHING, Circuit Judges. No. 18-1877, petition dismissed; No. 18-2106, petition denied by published opinion. Judge Rushing wrote the majority opinion, in which Judge Richardson joined. Judge Thacker wrote a dissenting opinion. ARGUED: Bryan James Harrison, BRYAN CAVE LEIGHTON & PAISNER LLP, Washington, D.C., for Petitioner. Christopher Alan Bates, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Rodney F. Page, Colin S. Harris, BRYAN CAVE LEIGHTON PAISNER LLP, Washington, D.C.; Claudia R. Cubas, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C., for Petitioner. Joseph H. Hunt, Assistant Attorney General, Linda S. Wernery, Assistant Director, Walter Bocchini, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. 2 RUSHING, Circuit Judge: Federal immigration law makes aliens who have been convicted under “any law . . . of a State . . . relating to a controlled substance (as defined [by federal law])” removable— that is, subject to deportation. 8 U.S.C. § 1227(a)(2)(B)(i). The question in this case is whether Petitioner’s conviction for possession of ethylone, a substance illegal under both Virginia and federal law, renders him removable even though Virginia’s controlled substance statute is broader than its federal counterpart. We hold that it does and so deny his petition for review. I. Petitioner Hassan Bah is a native and citizen of Sierra Leone. He entered the United States as a child in 1999 on a temporary visitor visa. When the visa expired, Bah stayed in the United States. Overstaying his visa rendered Bah removable, but because he is now married to an American citizen, Bah could apply for an adjustment of status to prevent his deportation. Such an adjustment is unavailable, however, if Bah is also removable because he committed a qualifying controlled substance offense. In December 2015, a Virginia grand jury indicted Bah for possession of “3,4- methylenedioxymethamphetamine (MDMA),” as well as possession of marijuana. Forensic testing later revealed that the substance believed to be MDMA was in fact “3,4- methylenedioxyethcathinone (ethylone).” Ethylone is a chemically similar variant of MDMA that is listed separately from MDMA on Schedule I of Virginia’s controlled substance schedules. See Va. Code § 54.1-3446. It is undisputed that ethylone, a positional isomer of butylone, qualifies as a Schedule I controlled substance under federal law, as 3 does MDMA. See 21 C.F.R. § 1308.11(d)(62) (butylone); 21 C.F.R. § 1308.11(d)(11) (MDMA); see also Oral Arg. at 21:44–23:10, 33:10–33:43. After the forensic testing, Bah’s indictment was amended by striking the reference to MDMA and handwriting “3,4-methylenedioxyethcathinone (ethylone)” in its place. A.R. 261. The word in parentheses in the handwritten amendment is unclear and could be read as “ethylene.” A bench trial ...
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