Johnson (Not-Precedential): Violation of 35 Pa. Stat. Ann. § 780-113(a)(30) requires analysis under the modified categorical approach to determine whether it constitutes an aggravated felony

Johnson v. Attorney General of the United States Not-Precedential 
Third Circuit Court of Appeals
605 Fed.Appx. 138
Filed: June 16, 2015

Facts: 

Minikan Wreth Johnson (Johnson) was admitted into the United States as a refugee in 2003. In 2008, Johnson pled guilty to two counts of possession with intent to deliver marijuana in violation of 35 Pa. Stat. Ann. § 780-113(a)(30). In 2010, Johnson was charged as being removable for an aggravated felony conviction and a controlled substance conviction. The Immigration Judge (IJ) sustained the controlled substance charge of removability but not the aggravated felony charge, and granted Johnson’s application for asylum. The Board of Immigration Appeals (BIA) reversed and ordered Johnson removed, finding that he had been convicted of a crime consituting an aggravated felony. 

Holding: 

The Third Circuit found that 35 Pa. Stat. Ann. § 780-113(a)(30) was divisible and applied the modified categorical approach. The Court determined that no document it was permitted to examine under Shepard v. U.S., 544 U.S. 13 (2005) showed that Johnson was convicted of any offense that would be an aggravated felony under federal law. The Third Circuit then determined that because it was possible to violate 35 Pa. Stat. Ann. § 780-113(a)(30) by distributing a small amount of marijuana for no remuneration or transferring marijuana to another person without payment, it was possible to violate the statute without violating the federal statute. Because it was unclear if Johnson’s offense qualified as an aggravated felony, the Court applied the minimum conduct and determined his conviction did not constitute an aggravated felony. 

The Court found it inappropriate to remand this issue to the BIA, because “Moncrieffe did not change our existing precedent—it confirmed it” and noted that because the BIA committed legal error, the Court could decide the aggravated felony issue without remand. Johnson at 143. The Court then determined that the government had waived its argument as to asylum eligibility requirements and its argument that Johnson’s conviction was for a particularly serious crime and remanded the case to the BIA with instructions to reinstate the IJ’s decision granting Johnson asylum. 

Note:

This case was originally decided in December 2014. See Johnson v. Attorney General of the U.S., 595 Fed.Appx. 117 (3d. Cir. 2014), which is discussed in the PWID Chart on the Resources Page, but was amended and superseded in 2015 by this decision, although the extent to which the original decision has changed is unclear.