Rosa v. Attorney General United States, No. 18-1765 (3d Cir. 2020)Annotate this Case
Rosa, a citizen of the Dominican Republic, was admitted to the U.S. as a legal permanent resident in 1992, as a child. In 2004, he pled guilty to possession and sale of a controlled substance (cocaine) within 1,000 feet of school property under the New Jersey School Zone Statute. Eleven years later, Rosa was charged as removable for the conviction of a controlled substances offense and of an “aggravated felony” for a “drug trafficking crime.” Rosa denied removability for the aggravated felony, which would have precluded him from being eligible for cancellation of removal.
The IJ applied the “categorical approach” and compared the New Jersey School Zone Statute with the federal statute for distribution “in or near schools and colleges” and concluded that the state statute swept more broadly than its federal counterpart in both proscribed conduct and its definition of “school property,” so that Rosa’s state conviction was not an “aggravated felony” under federal law. The IJ granted cancellation of removal. The Board of Immigration Appeals held that Rosa’s state conviction could be compared to the federal statute generally prohibiting the distribution of a controlled substance as a lesser included offense of the Federal School Zone Statute and ordered Rosa removed. The Third Circuit remanded. The categorical approach, which compares the elements of prior convictions with the elements of crimes under federal law, does not permit comparison with any federal crime but only with the “most similar” one.