CA2 on AgFel: Stankiewicz v. Garland

Stankiewicz v. Garland

"In this case, we must decide whether N.J. Stat. § 2C:35-7, which criminalizes distributing a controlled substance on or near school property, is an “aggravated felony,” as defined in 8 U.S.C. § 1101(a)(43)(B). Petitioner Aleksandra Malgorzata Stankiewicz was convicted in 2003 of violating § 2C:35-7. In removal proceedings initiated in 2018, the immigration judge (IJ) and the Board of Immigration Appeals (BIA) concluded that Stankiewicz’s § 2C:35-7 conviction was an aggravated felony 2 that made her both removable and ineligible to apply for cancellation of removal under 8 U.S.C. § 1229b(a). Stankiewicz now seeks review of that conclusion. Applying the “categorical approach,” we hold that Stankiewicz’s § 2C:35-7 conviction is not an “aggravated felony” under § 1101(a)(43)(B). In particular, we conclude that a state controlled substances conviction is an aggravated felony if it categorically matches any offense in the federal Controlled Substances Act and is a felony subject to a sentence exceeding one year. Here, neither of the parties’ proposed federal analogs—21 U.S.C. § 860, the federal school zone statute, and 21 U.S.C. § 841, the federal controlled substance distribution statute—categorically matches § 2C:35-7. And, § 2C:35-7 is not divisible. We therefore GRANT Stankiewicz’s petition for review, VACATE the agency’s ruling, and REMAND this case to the BIA for further proceedings consistent with this opinion."

[Hats off to Joshua Bardavid and Thomas Massucci!  Listen to the oral argument here.]