On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A25 303 663) Immigration Judge Donald Vincent Ferlise Argued June 15, 2006.
The opinion of the court was delivered by: Fisher, Circuit Judge
Before: FISHER, CHAGARES and REAVLEY,*fn1 Circuit Judges.
Belito Garcia petitions for review from the Board of Immigrations Appeals' final order of removal. Garcia's petition requires us to determine whether his conviction under section 13(a)(30) of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act ("the Act"), 35 Pa. Stat. Ann. § 780-113(a)(30), constitutes an "aggravated felony" under relevant provisions of the Immigration and Nationality Act ("INA").
We have previously held that violations of similar Delaware and New Jersey statutes do not qualify as aggravated felonies. See Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003). For the reasons that follow, we conclude that the Pennsylvania Act is distinguishable from both the Delaware and New Jersey statutes, and that Garcia's conviction qualifies as an aggravated felony. We will therefore deny his petition for review.
Garcia, a resident alien, was arrested in Philadelphia in April 1996. According to the criminal complaint, which is part of the administrative record, Garcia sold an amount of marijuana to an undercover police officer, and later, on the same date, possessed an amount of marijuana with the intent to deliver. On September 26, 1996, Garcia pled nolo contendere*fn2 before the Philadelphia Municipal Court to two counts of manufacturing, delivering, or possessing with the intent to deliver a controlled substance, in violation of section 13(a)(30) of the Act, 35 Pa. Stat. Ann. § 780-113(a)(30), and two counts of knowingly possessing a controlled substance, in violation of section 13(a)(16) of the Act, 35 Pa. Stat. Ann. § 780-113(a)(16).
On December 11, 1996, the Immigration and Naturalization Service ("INS")*fn3 issued an order to show cause, advising Garcia that he was removable from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), based on his conviction of an "aggravated felony."*fn4 An Immigration Judge ("IJ") subsequently found that Garcia's conviction qualified as an aggravated felony, and that, as a result, he was deemed to have committed a "particularly serious crime." Based on that finding, the IJ denied Garcia's application for asylum and withholding of removal, and ordered him removed from the United States. Garcia appealed the IJ's order to the Board of Immigration Appeals ("BIA").
In a decision dated October 28, 1999, the BIA held that Garcia's aggravated felony conviction created a rebuttable presumption that he had committed a "particularly serious crime," so as to render him ineligible for asylum and withholding of removal under relevant provisions of the INA. The BIA remanded the case for further proceedings as to whether Garcia could "overcome the presumption that he had been convicted of a particularly serious crime," because the IJ incorrectly believed that he did not have the discretion to hold that the aggravated felony was not a particularly serious crime.
In an oral decision dated July 25, 2001, the IJ again held that Garcia was removable based on his conviction of an aggravated felony.*fn5 The IJ also determined that Garcia had failed to overcome the rebuttable presumption that his conviction was for a particularly serious crime. Thus, the IJ held that Garcia was ineligible for asylum and withholding of removal.*fn6
The BIA affirmed on March 12, 2003. In response to Garcia's argument that his conviction was not for an aggravated felony, the BIA first noted that it had found Garcia's conviction to be an aggravated felony in its decision dated October 28, 1999. The BIA added that the conviction records established the specific provision of Pennsylvania law under which Garcia was convicted, and supported a finding that he was convicted of an aggravated felony.*fn7 The BIA also affirmed on other matters not relevant to the current petition for review.
On August 11, 2004, Garcia filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania, seeking a determination that his Pennsylvania drug conviction was not an aggravated felony, and requesting that his case be remanded for further consideration of his withholding of removal, cancellation of removal, asylum, and CAT claims. The District Court then transferred the habeas petition to this Court pursuant to section 106(c) of the REAL ID Act. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005) (noting that, pursuant to section 106(c), "all habeas petitions brought by aliens that were pending in the district courts on the date the REAL ID Act became effective (May 11, 2005) are to be converted to petitions for review and transferred to the appropriate court of appeals").
We have jurisdiction over Garcia's petition for review pursuant to 8 U.S.C. § 1252(a)(2)(D). See Ng v. Att'y Gen., 436 F.3d 392, 394 (3d Cir. 2006) (stating that our jurisdiction extends to "questions of law raised upon a petition for review," including petitions for review of removal orders based on aggravated felony convictions). We exercise plenary review over Garcia's legal argument that he was not convicted of an aggravated felony and his constitutional ...