Ricardo Gayle v. ATTORNEY GENERAL UNITED STATES OF AMERICA. On Petition for Review of an Order of…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1811
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RICARDO GAYLE,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA.
____________
On Petition for Review of an
Order of the Board of Immigration Appeals
(Agency No. A056-493-021)
Immigration Judge: Pallavi Shirole
____________
Argued on May 18, 2023
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Before: GREENAWAY, JR., PHIPPS, and CHUNG, Circuit Judges.
(Opinion filed: June 15, 2023)
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OPINION*
____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.

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Peter Crossley
Rebecca Hufstader (ARGUED)
Legal Services of New Jersey
100 Metroplex Dr.
Suite 101
Edison, NJ 08817
Counsel for Petitioner
Craig A. Newell, Jr. (ARGUED)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
Amelia B. Marritz
Andrew B. Wachtenheim
Immigrant Defense Project
P.O. Box 1765
New York, NY 10027
Counsel for Amicus Petitioners American Immigration Council, Capital
Area Immigrants Rights Coalition, Kate Evans, Joanne Gottesman, HIAS
Pennsylvania, Immigrant Defense Project, National Immigration Project of
the National Lawyers Guild, Pennsylvania Immigration Resource Center
Susannah D. Volpe
Office of Public Defender
31 Clinton Street
Newark, NJ 07101
Counsel for Amicus Petitioner Office of Public Defender of New Jersey

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Michael Noriega
Bramnick Rodriguez Grabas Arnold & Mangan
1827 E Second Street
Scotch Plains, NJ 07076
Counsel for Amicus Petitioner New Jersey Association of Criminal Defense
Lawyers
CHUNG, Circuit Judge.
Ricardo Gayle seeks review of a Board of Immigration Appeals (“BIA”) decision
ordering his removal and dismissing his appeal. The BIA found that the Immigration
Judge (“IJ”) correctly concluded that Gayle was removable as an aggravated felon. Since
the BIA properly determined that Gayle’s prior conviction is an aggravated felony for
removability purposes, we will deny Gayle’s petition for review.
I. Factual and Procedural History
Gayle is a Jamaican national. He was admitted to the United States as a
permanent resident in 2003. In 2017, Gayle pleaded guilty to possessing with intent to
distribute heroin in violation of N.J. Stat. Ann. (“N.J.S.A.”) §§ 2C:35-5(a)(1) and based
on the quantity and drug he possessed – over five ounces of heroin – that offense was
graded as a crime of the first degree under N.J.SA. § 2C:35-5(b)(1).1 In 2021, the
1 N.J.S.A. §§ 2C:35-5(a)(1) and (b)(1) reads as follows:
a. Except as authorized by P.L.1970, c. 226 (C.24:21-1 et seq.), it shall be
unlawful for any person knowingly or purposely: (1) To manufacture, distribute or
dispense, or to possess or have under his control with intent to manufacture,
distribute or dispense, a controlled dangerous substance or controlled substance
analog; or
…
b. Any person who violates subsection a. with respect to: (1) Heroin, or its analog,
or coca leaves and any salt, compound, derivative, or preparation of coca leaves,

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Department of Homeland Security (“DHS”) issued a Notice to Appear charging Gayle as
removable for being a noncitizen convicted of an aggravated felony and a controlled
substance offense. The basis for the aggravated felony charge was Gayle’s 2017
conviction. DHS later added a third ground of removability for being an individual
convicted of two crimes involving moral turpitude. Gayle admitted to the allegations and
conceded two charges of removability,2 but challenged the charge of removability as an
aggravated felon. He also filed applications for cancellation of removal, asylum,
withholding of removal, and protection under the Convention Against Torture (“CAT”).
The IJ sustained the aggravated felony charge, and Gayle appealed the IJ’s decision to the
BIA. The BIA affirmed the IJ’s determination that Gayle’s conviction was an aggravated
felony rendering him removable under 8 U.S.C. § 1227(a)(2)(A)(iii) and dismissed the
appeal.
Gayle timely petitioned this Court for review of the BIA’s dismissal.
and any salt, compound, derivative, or preparation thereof which is chemically
equivalent or identical with any of these substances, or analogs, except that the
substances shall not include decocainized coca leaves or extractions which do not
contain cocaine or ecogine, or 3,4-methylenedioxymethamphetamine or 3,4-
methylenedioxyamphetamine, in a quantity of five ounces or more including any
adulterants or dilutants is guilty of a crime of the first degree. The defendant shall,
except as provided in N.J.S.2C:35-12, be sentenced to a term of imprisonment by
the court. The term of imprisonment shall include the imposition of a minimum
term which shall be fixed at, or between, one-third and one-half of the sentence
imposed, during which the defendant shall be ineligible for parole.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to
$500,000 may be imposed[.]
2 Gayle conceded that he was removable under the Immigration and Nationality Act
(“INA”) §§ 237(a)(2)(B)(i) (individual convicted of a controlled substance offense) and
237(a)(2)(A)(ii) (individual convicted of two crimes involving moral turpitude).

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II. Legal Standard3
Our jurisdiction to review orders removing aggravated felons is limited to
“constitutional claims [and] questions of law.” 8 U.S.C. §§ 1252(a)(2)(C), (D). “When
the BIA issues its own decision on the merits, rather than a summary affirmance, we
review its decision, not that of the IJ.” Chavez-Alvarez v. Att’y Gen., 783 F.3d 478, 482
(3d Cir. 2015) (quoting Syblis v. Att’y Gen., 763 F.3d 348, 352 (3d Cir. 2014)). Legal
conclusions, including whether an offense constitutes an aggravated felony under the
INA, are reviewed de novo. Darby v. Att’y Gen., 1 F.4th 151, 159 (3d Cir. 2021);
Chavez-Alvarez, 783 F.3d at 482 (quoting Restrepo v. Att’y Gen., 617 F.3d 787, 790 (3d
Cir. 2010)).
III. Analysis
Gayle contends that his prior conviction under N.J.S.A. § 2C:35-5 for possession
cannot qualify as an aggravated felony under the INA because § 2C:35-5 is categorically
overbroad insofar as it proscribes more conduct than its generic federal analogue.4
Because we determine that Gayle’s conviction is an aggravated felony under the INA, we
3 The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction under 8
U.S.C. § 1252(a)(1). The Government notes that we do not have jurisdiction over the
BIA’s discretionary ruling that Gayle was ineligible for cancellation of removable. See
Gov. Br. at 2–4 (citing 8 U.S.C. § 1252(a)(2)(C)). We agree and only exercise
jurisdiction over the question of law presented, i.e., whether Gayle’s offense constitutes
an aggravated felony, pursuant to 8 U.S.C. § 1252(a)(2)(D).
4 The BIA determined, and the parties do not contest, that the relevant federal analog is
21 U.S.C. §§ 841(a) and (b). See Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003)
(using 21 U.S.C. § 841(a)(1) as the appropriate comparator for N.J. Stat. § 2C:35
5(b)(11)).

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will deny Gayle’s petition.5
A. The Modified Categorial Approach
A noncitizen is statutorily removable and ineligible for cancellation of removal if
convicted of an “aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C.
§ 1229b(b)(1). An aggravated felony includes crimes of “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).” 8 U.S.C. § 1101(a)(43)(B); see also Moncrieffe v.
Holder, 569 U.S. 184, 188 (2013) (citing Lopez v. Gonzales, 549 U.S. 47, 60 (2006)).
Courts employ the categorical approach to determine whether a noncitizen’s conviction
under state law qualifies as an aggravated felony. Moncrieffe, 569 U.S. at 190. Under
the categorical approach, courts examine the proscribed conduct under state law and
compare it to the conduct proscribed by the relevant federal analogue. Mathis v. United
States, 579 U.S. 500, 505 (2016); Vurimindi v. Att’y Gen., 46 F.4th 134, 141–42 (3d Cir.
2022). If the state statute is broader than federal law, meaning it proscribes more conduct
than its federal counterpart, a conviction under that statute does not qualify as an
aggravated felony. Vurimindi, 46 F.4th at 142.
In assessing the state statute and the crime a petitioner is convicted of, courts
employ a divisibility analysis. If the state statute consists of a single crime, then the
5 Gayle also argues that the BIA erred in its reliance on In re Laguerre, 28 I. & N. Dec.
437 (B.I.A.2022) and failed to apply the proper framework to establish whether § 2C:35-
5(b)(1) is divisible. We need not determine whether the BIA erred in relying on
Laguerre, because we determine, based on de novo review, that § 2C:35-5 is divisible by
type of controlled substance, an element of the statute.

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statute is indivisible. Rosa v. Att’y Gen., 950 F.3d 67, 75 (3d Cir. 2020) (citing Mathis,
579 U.S. 500 at 505-06). This analysis is “straightforward” and requires a court to align
the state statute elements with the generic offense. Mathis, 579 U.S. at 505. Some state
statutes are divisible, however. These statutes define multiple crimes in subdivisions by
listing alternative elements of a crime. Rosa, 950 F.3d at 75. When faced with divisible
statutes, courts must “go an extra step” and employ a modified categorical approach to
determine whether a noncitizen’s conviction qualifies as an aggravated felony. Id. at 75
(citing Mathis, 579 U.S. at 505). Under the modified categorical approach, courts may
examine a “limited class of documents … solely to determine under which portion of the
statute and under which elements … the defendant was convicted.” Id., 950 F.3d at 75.
Once it is determined “what crime, with what elements, a defendant was convicted of”
the court will then compare that crime with its federal analogue, that is, the relevant
generic federal offense. Id. at 75-76 (citing Mathis, 579 U.S. at 505). If the offense of
conviction is broader than its federal analogue, then the conviction does not qualify as an
aggravated felony.
When a statute lists “elements in the alternative, and thereby define[s] multiple
crimes,” it is divisible by those elements. Mathis v. United States, 579 U.S. 500, 505
(2016). Elements are facts that must be found beyond a reasonable doubt by a unanimous
jury or admitted by a defendant when he pleads guilty. Id. at 504. A statutory alternative
subjecting a defendant to a higher punishment, is an element that must be found
unanimously by a jury and the statute is divisible as to that element. Id. at 518.

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B. The BIA Decision
In its review of the IJ’s decision, the BIA first acknowledged that § 2C:35-5(b)(1)
proscribes the possession of more controlled substances, and is hence broader, than its
federal counterpart, 21 U.S.C. § 841(a)(1).6 After de novo review, the BIA also found
that § 2C:35-5(b)(1) is divisible because the type of a controlled substance is an element
of § 2C:35-5(b)(1). Upon application of the modified categorical approach, the BIA
determined that Gayle’s conviction, which involved a federally controlled substance
(heroin), is an aggravated felony. Accordingly, the BIA found that Gayle could not seek
cancellation of removal and that he was ineligible for withholding of removal.
Gayle argues that the BIA erred in applying the modified categorical approach
because under § 2C:35-5(b)(1), the listed controlled substances are merely ways one can
violate the statute (i.e., means), not elements of the offense; therefore, the statute is not
6 Section 2C:35-5(b)(1) regulates “coca leaves and any salt compound, derivative, or
preparation of coca leaves” but federal law specifically exempts a type of cocaine
derivative, ioflupane. See Schedules of Controlled Substances: Removal of [123
I]Ioflupane from Schedule II of the Controlled Substances Act, 80 Fed. Reg. 54,715,
54,715 (Sept. 11, 2015).
The Government argues, for the first time on appeal, that New Jersey has “a
unique statutory scheme that makes federal law the default for determining which
substances it controls, absent an objection by the State”; therefore, even if the statute
were not divisible, it would still categorically match federal law because “Ioflupane was
not controlled by New Jersey at the time of Gayle’s 2017 conviction given that it was
removed from federal schedule in 2015.” Gov. Br. at 14-15; see N.J. Stat. § 24:21-3(c);
N.J. Admin Code § 13:45H-10.1(a)-(b); State v. Nicolas, 219 A.3d 1077, 1081 (N.J. App.
Div. 2019). This argument was never presented to the BIA or the IJ, and we decline to
consider it. See Argueta-Orellana v. Att’y Gen., 35 F.4th 144, 146 (3d Cir. 2022) (noting
that this Court generally does not “consider the new arguments raised for the first time on
appeal”).

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divisible by controlled substance. Gayle thus argues that, because § 2C:35-5(b)(1)
regulates controlled substances that federal law exempts, § 2C:35-5(b)(1) is overbroad
and requires us to conclude that Gayle’s conviction cannot qualify as an aggravated
felony. The Government disagrees and argues that the BIA correctly determined that
§ 2C:35-5(b) is divisible by controlled substance.
C. The Type of Controlled Substance is an Element
of Offenses Charged under Sections 2C:35-5(a)(1) and (b)(1)
We agree with the Government that the type of a controlled substance is an
element of § 2C:35-5(b)(1) for determining divisibility under the modified categorical
approach.
Any fact that “increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt,” and
therefore must be an element. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); see
also, Mathis, 579 U.S. at 518. Thus, when the “type of controlled substance involved ….
increases the possible range of penalties, [it] is an element of the crime.” United States v.
Abbott, 748 F.3d 154, 159 (3d Cir. 2014); see also Apprendi, 530 U.S. at 521 (Thomas,
J., concurring) (noting that if “a fact is by law the basis for imposing or increasing
punishment … it is an element.”).
Following Apprendi, we have recognized that when the type of controlled
substance relates to grading, i.e., when it increases the punishment for the crime, it is an
element of the offense. We have thus found that, under 21 U.S.C. §§ 841(a) and (b), drug
type and quantity are elements for any offense charged with increased statutory

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maximums. See, e.g., United States v. Lacy, 446 F.3d 448, 454 (3d Cir. 2006) (“[I]n this
case, both the drug type and amount serve to increase the maximum statutory penalty,
and must be treated as ‘elements’ of the offense.”); United States v. Henry, 282 F.3d 242,
244 (3d Cir. 2002) (concluding that drug type was an element because it was “relevant to
determining the statutory maximum”); United States v. Barbosa, 271 F.3d 438, 453, 458
(3d Cir. 2001).
Section 2C:35-5(b), like its federal analogue 21 U.S.C. § 841(b), imposes higher
penalties depending on the type of controlled substance and quantity charged. See, e.g.,
§ 2C:35-5(b)(1)-(2) (imposing statutory maximum sentences of 10 and 20 years for
increasing quantities of heroin and cocaine); § 2C:35-5(b)(6)-(7) (imposing statutory
maximum sentences of 10 and 20 years for increasing quantities of LSD and PCP);
§ 2C:35-5(b)(8)-(9) (imposing statutory maximum sentences of 10 and 20 years for
increasing quantities of methamphetamine and phenyl-2-propanone (P2P)). Under
§2C:35-5(b)(1), the subsection at issue for Gayle, a defendant is subject to an increased
statutory maximum of 20 years if the quantity of heroin or cocaine involved is over 5
ounces.
Reading the statute as a whole reveals that each controlled substance is treated as
its own element. Air Courier Conf. of Am./Int’l Comm. v. U.S. Postal Serv., 959 F.2d
1213, 1217 (3d Cir. 1992) (“We do not ... construe statutory phrases in isolation; we read
statutes as a whole.” (quoting United States v. Morton, 467 U.S. 822, 828 (1984)))); see
also State v. Friedman, 209 N.J. 102, 117 (2012) (“We must, however, read the statute as
a whole and not seize upon one or two words as a fixed guide to the meaning of the

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entirety.”). That is, an increased penalty is assigned to the level of harm the legislature
ascribed to each controlled substance by quantity. See, e.g., § 2C:35-5(b) (imposing
statutory maximum sentences of 20 years for offenses involving five ounces or more of
heroin, cocaine, methamphetamine, and P2P; 100 milligrams or more of LSD; 10 grams
or more of PCP; 25 pounds or more of marijuana; and five pounds or more of hashish).
Although the drafters could have tracked the structure of 21 U.S.C. § 841(b) and grouped
drugs by penalty (i.e. all first-degree offenses in one subsection), the drafters instead
appear to have grouped drugs by type; e.g. common street drugs in subsections (b)(1)-(3),
narcotics in subsections (b)(4)-(b)(5), psychedelics in subsections (b)(6)-(b)(7),
amphetamines in subsections (b)(8)-(b)(9), and depressants in (b)(10).
Gayle takes the position, essentially, that because heroin and cocaine are
addressed together in subsection (b)(1) and carry the same penalty for the same quantity
possessed, they are means. We decline to join Gayle in elevating form over substance.
As noted above, this grouping appears merely to reflect the drafters’ decision to address
drugs by type and, reading the statute as a whole, such groupings do not reflect a desire to
treat grouped substances interchangeably as means. Indeed, Petitioner acknowledged at
oral argument that LSD and PCP are elements, despite being listed in the same
subsection. See, e.g., § 2C:35-5(b)(6) (prescribing 20-year maximum penalty for
offenses involving 100 milligrams or more of LSD and 10 grams or more of PCP).
If we were to accept Gayle’s argument that the controlled substances listed are
merely means of committing the offense, we would be forced to endorse an outcome
wherein a defendant would face a twenty-year statutory maximum – when he would

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otherwise be acquitted entirely – based on a non-unanimous jury determination as to the
appropriate substance. For example, if a defendant and four passengers were stopped in a
car and one five-ounce package of heroin was found under the passenger seat and one
five-ounce package of cocaine were found in the trunk, under Gayle’s reading of the
statute, a defendant could face a 20-year sentence based on only six jurors determining
that he possessed the five ounces of heroin under the seat and only six jurors determining
that he possessed the five ounces of cocaine in the trunk. At oral argument, Gayle
acknowledged that this would result in an acquittal if the type of a controlled substance is
an element under §2C:35-5(b)(1). Gayle nonetheless advocates for a position wherein
this non-unanimous jury finding would expose a defendant to the statutory maximum
penalty of twenty years.7 This is inconsistent with the holding in Apprendi. Explicitly
put, Gayle’s position would expose defendants to statutory maximum punishments
without unanimous findings by juries.
Resisting this conclusion, Gayle mainly relies on two state court cases, State v.
Torres, 563 A.2d 1141 (N.J. Super. Ct. App. Div. 1989) and State v. Edwards, 607 A.2d
1312 (N.J. Super. Ct. App. Div. 1992), which he argues “show[] that the substances listed
in (b)(1) are only means of committing the crime.” Pet. Br. at 21, 21–28. But both cases
7 And since Gayle does not argue that 2C:35-5(b) as a whole is indivisible (i.e., he does
not argue that (b)(1) and (b)(8) are indivisible from each other), this reading of § 2C:35-
5(b) seems particularly fraught when considering that under such reading the
aforementioned hypothetical would result in a conviction when the packages contained
heroin and cocaine, but an acquittal when the packages contained heroin and
methamphetamine. See § 2C:35-5(b)(8) (20-year maximum sentence for offenses
involving five ounces or more of methamphetamine).

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fail to support Gayle’s argument. Most significantly, both cases were decided pre-
Apprendi, and the courts did not use the term “element” in the same way as Apprendi and
Mathis. In both Torres and Edwards, the court analyzed whether drug type was an
“element” in order to determine whether the state needed to prove the defendant’s
knowledge of the type of drug at issue; this is a substantively distinct analysis from the
grading analysis under Apprendi.
When contemplating whether drug type must be proven beyond a reasonable
doubt for grading purposes, however, the courts in both Torres and Edwards found that
“the jury must find that defendant manufactured, distributed, dispensed or possessed the
relevant quantity or quality of [controlled substance] by proof beyond a reasonable
doubt.” Torres, 563 A.2d at 1145; Edwards, 607 A.2d at 1314 (relying on Torres and
noting that controlled substance is relevant for grading purposes). Thus, because a
unanimous jury must agree on the type and quantity of controlled substance for grading
purposes, those attributes must be elements under Apprendi. See Mathis, 579 U.S. at 518
(“If statutory alternatives carry different punishments . . . they must be elements.”)
(referencing Apprendi).
We find that the statute is therefore divisible by controlled substance for purposes
of the categorical approach. Gayle’s conviction involved heroin, a federally controlled
substance,8 so, his conviction matches the federal offense and is an aggravated felony.
8 See 21 U.S.C. § 812(c), scheds. I(b)(10); 21 C.F.R. § 1308.11(c)(11).

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IV. Conclusion
For the foregoing reasons, the BIA properly determined that Gayle’s prior
conviction under §§ 2C:35-5(a)(1) and (b)(1) is an aggravated felony rendering him
removable and ineligible for cancellation of removal. We therefore deny Gayle’s
petition.

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