NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 18-3225 ______________ HERNANDEZ TOKPAH, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ On Petition for Review from the Board of Immigration Appeals (Agency No.: A079-864-650) Immigration Judge: Virna A. Wright ______________ Submitted under Third Circuit LAR 34.1(a) February 12, 2021 Before: CHAGARES, SCIRICA, and RENDELL, Circuit Judges (Filed: May 27, 2021) ______________ OPINION* ______________ SCIRICA, Circuit Judge * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Hernandez Tokpah petitions for review of the Board of Immigration Appeals’s order dismissing his appeal and affirming the Immigration Judge’s determination that he is removable as an aggravated felon. In making its decision, the Board relied on Matter of Rosa, 27 I. & N. Dec. 228 (BIA 2018). We have since reversed that decision and clarified the proper framework for determining whether a state conviction qualifies as an aggravated felony under 8 U.S.C. § 1229b(a)(3). See Rosa v. Att’y Gen., 950 F.3d 67, 81 (3d Cir. 2020). We will grant Tokpah’s petition for review, vacate the Board’s dismissal, and remand so that the Board can conduct further proceedings consistent with Rosa. I Tokpah is a native and citizen of Liberia. He was admitted to the United States in 2004 as a refugee and in 2008 obtained lawful permanent resident status. In 2017, following a guilty plea in New Jersey Superior Court, Tokpah was convicted for possession with intent to distribute cocaine within 1,000 feet of school property in violation of N.J. Stat. Ann. § 2C:35-7(a) (the “New Jersey School Zone Statute”). He was sentenced to two years of probation. The Department of Homeland Security (“DHS”) commenced removal proceedings against Tokpah. Based on his conviction under the New Jersey School Zone Statute, he was charged with removability under both 8 U.S.C. § 1227(a)(2)(B)(i), due to his conviction for a controlled substance offense, and 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony after admission to the United States. Tokpah conceded his removability on the controlled substance conviction but denied that he was removable as an aggravated felon. 2 Tokpah applied for cancellation of removal under 8 U.S.C. § 1229b(a), which requires, inter alia, that the applicant “has not been convicted of any aggravated felony.” An Immigration Judge rendered a written decision finding that Tokpah was not removable as an aggravated felon. Thus, Tokpah remained eligible for cancellation of removal.1 DHS, however, filed a motion to reconsider in light of Matter of Rosa, 27 I. & N. Dec. 228 (BIA 2018), an intervening Board decision determining that a conviction under the New Jersey School Zone Statute is an aggravated felony. In Matter of Rosa, the Board reasoned that it was permissible to look to multiple provisions of the Controlled Substances Act, 21 U.S.C. §§ 801 et seq., in determining whether a state offense constitutes an aggravated felony. 27 I. & N. Dec. at 231–32. Under this approach, …
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