Summary
This Board of Immigration Appeals decision determines whether a New Jersey conviction for possession with intent to distribute a controlled dangerous substance is divisible by the specific controlled substance. Applying the modified categorical approach, the Board concludes the statute is divisible and that the record of conviction identifies fentanyl as the federally controlled substance involved. Accordingly, the Board sustains the DHS appeal, holding the respondent removable as a controlled substance offender and an aggravated felony.
Topics
Practice areas
Questions Presented
- Whether the respondent’s conviction under N.J. Stat. Ann. § 2C:35-5(b)(4) is divisible by controlled substance and therefore a controlled substance offense and an illicit trafficking aggravated felony under INA § 101(a)(43)(B).
Holdings
- The statute is divisible by controlled substance; under the modified categorical approach the record shows the respondent was convicted of fentanyl, a federally controlled substance. Accordingly, the conviction is a controlled substance offense and an illicit trafficking aggravated felony, making the respondent removable. DHS’s appeal is sustained, the Immigration Judge’s decision is vacated, and the case is remanded for further proceedings.
Key quotations
“Section 2C:35-5(b)(4) of the New Jersey Statutes Annotated is divisible by controlled substance, and applying the modified categorical approach, the respondent’s record of conviction identifies the relevant substance as fentanyl, a federally controlled substance.” (259)
“We will sustain DHS’ appeal and remand the record to the Immigration Judge for further proceedings consistent with this opinion.” (262)
Factual background
The respondent was convicted in 2022 under New Jersey Statutes Annotated § 2C:35-5(b)(4) for possession with intent to distribute fentanyl. The conviction was challenged as to whether the statute is divisible by controlled substance and whether the conviction constitutes a controlled substance offense and an illicit trafficking aggravated felony under the INA.
Procedural history
The Immigration Judge granted the respondent's motion to terminate proceedings on July 2, 2024. DHS appealed the decision to the Board of Immigration Appeals.
Remand instructions
The record is remanded to the Immigration Judge for further proceedings consistent with this opinion.