CA3 on 'Relating to a Controlled Substance' - Rojas v. Attorney General (En Banc)

"Petitioner Ramiro Rojas entered the United States as a lawful permanent resident in 2003 when he was 12 years old. Six years later, Rojas pled guilty to possessing drug paraphernalia in violation of Pennsylvania law and was ordered to pay a fine and court costs. The Department of Homeland Security (the “Department”) then initiated removal proceedings against Rojas, contending that he was removable for having violated a law “relating to a controlled substance (as defined in section 802 of Title 21).” 8 U.S.C. § 1227(a)(2)(B)(i). Rojas sought to terminate the proceedings on the theory that the offense that constitutes the basis of removal must involve a substance defined in section 802 of Title 21, i.e., a federally controlled substance, but that the Department had failed to meet such a burden in this particular case. The immigration agencies disagreed that § 1227(a)(2)(B)(i) imposes that requirement and ordered Rojas removed.

After consideration of Rojas‟s petition for review by a three-judge panel of our Court, we sua sponte ordered that the case be heard en banc. See Third Cir. I.O.P. 9.4 (2010). We now grant Rojas‟s petition for review and conclude that, in a removal proceeding under § 1227(a)(2)(B)(i), the Department must show that the conviction for which it seeks to remove a foreign national involved or was related to a federally controlled substance. The record here was silent as to the drug involved. Accordingly, we conclude that the Department failed to meet its burden and remand the case for the agency to determine whether the Department may have another opportunity to demonstrate that Rojas‟s conviction involved a federally controlled substance." - Rojas v. Attorney General, Aug. 23, 2013, en banc.  [Hats off to Graig R. Shagin and Tracey M. Hubbard!]