CA3 on 'relating to a controlled substance' - Borrome v. Attorney General

"We hold that (1) a conviction for violating the FDCA’s wholesale distribution provisions, see 21 U.S.C. §§ 331(t) & 353(e)(2)(A),  is not an “aggravated felony”  — specifically “illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)” — under 8 U.S.C. §§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii), and (2) the FDCA’s wholesale distribution provisions are not   laws “relating to a controlled substance (as defined in Section 802 of Title 21)” under 8 U.S.C.  § 1227(a)(2)(B)(i).  Accordingly, we grant the petition for review, reverse, and  vacate the order of removal." - Borrome v. Attorney General, July 18, 2012.

[Footnote 4 is especially tasty: "The Government does not defend the IJ’s aggravated felony analysis. Instead, it asks that we remand this case to the BIA to give it “an opportunity to re-consider the immigration judge’s determination that Mr. Borrome is removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii)” if we conclude that he is not removable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a law “relating to a controlled substance.”  Gov. Br. at 17.  According to the Government, a remand would give the BIA “an opportunity to re-consider the [IJ’s] determination that the ‘hypothetical federal felony’ approach applies in the current situation where the statute of conviction, the FDCA, was neither a state statute nor one of the three statutes enumerated in 18  U.S.C. § 924 (c)(2).”   Id. at 17 n.9.  It would also give the BIA “an opportunity to re-consider the application of the categorical approach to the aggravated felony determination in this case.”  Id.  We decline the Government’s request.  When Borrome appealed the IJ’s ruling to the BIA, the Government filed a motion for summary affirmance, claiming (among other things) that “the result reached in the decision under review is correct . . . and that the issues on appeal are squarely controlled by existing  precedent and do not involve the application of precedent to . . .  novel facts.”  A.R. at 19.  The BIA obliged.  Now the Government is singing a different tune.  It gives no good reason why the BIA should have a second chance to consider the issues raised on this appeal.  The BIA had the opportunity to consider the issues and, at the Government’s insistence, chose not to do so."]

Hats way off to superlitigator Thomas M. Griffin, Esq.!