On Petition for Review of a Final Order of the Board of Immigration Appeals Immigration Judge: Honorable Andrew Arthur (No. A044-824-479)
The opinion of the court was delivered by: Ambro, Circuit Judge
Before: SCIRICA, AMBRO, and VAN ANTWERPEN, Circuit Judges
This immigration case hinges on the relationship between prescription "drugs" and "controlled substances." The Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. §§ 301-399d, prohibits the unlicensed wholesale distribution of prescription "drugs" in interstate commerce.
See 21 U.S.C. §§ 331(t) & 353(e)(2)(A). Similarly, the Controlled Substances Act ("CSA"), 21 U.S.C. §§ 801-904, bans the unauthorized distribution of "controlled substances." See 21 U.S.C. § 841(a). Some prescription "drugs" (like Oxycontin) are also "controlled substances," but many (like Lipitor, Zithromax, and thousands of other common medications) are not. Importantly, the FDCA's wholesale distribution provisions make no distinction between those prescription "drugs" that are "controlled substances" and those that are not.
With this background, we answer two questions. First, is a conviction for violating the FDCA's wholesale distribution provisions 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)? Second, are these FDCA provisions laws "relating to a controlled substance (as defined in Section 802 of Title 21)" under 8 U.S.C. § 1227(a)(2)(B)(i)? Our answer to both questions is no. Accordingly, we grant the petition for review, reverse, and vacate the order of removal.
Petitioner Ramone Borrome is a citizen of the Dominican Republic, and since August 1996 has been a lawful permanent resident of the United States. In May 2002, a Special Agent with the United States Food and Drug Administration ("FDA") filed a criminal complaint against him and two other men in federal court. The next month, a grand jury returned a two-count indictment.
Count One charged the three defendants with having "unlawfully,
intentionally, and knowingly engaged in the
unauthorized wholesale distribution in interstate commerce of
prescription drugs in violation of [21 U.S.C. §§ 331(t) and 353(e)],
to wit, [Borrome, and his two co-defendants] distributed the
prescription drugs Combivir, Diflucan, Oxycontin, Serostim, Viagra,
Zerit, [and] Zyprexa without being licensed to do so."*fn1
A.R. at 102 ¶ 1. Count Two alleged a conspiracy.
Significantly, the indictment did not charge any of the three
defendants with violating the CSA. According to his judgment of
conviction, Borrome pled guilty to Count One while Count Two was
dismissed on the Government's motion.*fn2 The District
Court sentenced him to four months' imprisonment followed by four
months' home confinement.
In June 2010, Borrome was served with a Notice to Appear for immigration removal purposes. He filed a motion to terminate, which the Immigration Judge ("IJ") denied.
In a written opinion, the IJ found Borrome removable under 8 U.S.C. §§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony. The IJ concluded that the "hypothetical federal felony test" required him to compare the FDCA's wholesale distribution provisions to the CSA to determine whether Borrome's FDCA conviction is analogous to a felony under the CSA. He noted that the CSA makes it a felony to distribute knowingly or intentionally a controlled substance. See 21 U.S.C. § 841(a)(1) & (b)(1)(C). Turning to Borrome's indictment, he further noted that Borrome pled guilty to distributing Oxycontin, which contains the Schedule II controlled substance oxycodone. See 21 C.F.R. § 1308.12(b)(1)(xiii). (None of the other six prescription "drugs" listed in Borrome's indictment contains "controlled substances.") Thus, the IJ reasoned, "because [Borrome's] offense involved the unauthorized distribution of a Schedule II controlled substance," it is an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) pursuant to the "hypothetical federal felony test." A.R. at 40.
The IJ also found Borrome removable under 8 U.S.C. § 1227(a)(2)(B)(i) as an alien convicted of violating any law "relating to a controlled substance." After reiterating the reference in Borrome's indictment to Oxycontin, the IJ concluded that Borrome's conviction "is plainly a violation of a law relating to a controlled substance." Id. at 42.
In December 2010, the IJ ordered Borrome removed to the Dominican Republic. In March 2011, on the Government's motion, the Board of Immigration Appeals ("BIA") summarily affirmed the IJ's decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). Borrome timely petitioned for review. Before his counsel could file a motion to stay removal, he was removed from the United States.
II.Jurisdiction and Standard of Review
The IJ had jurisdiction over Borrome's removal proceedings under 8 U.S.C. § 1229a. The BIA had jurisdiction to review the IJ's order of removal and its underlying denial of Borrome's motion to terminate ...