Marc David Cadet v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1091
___________
MARC DAVID CADET,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A43-679-303)
Immigration Judge: Alberto J. Riefkohl
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
August 3, 2009
Before: BARRY, SMITH and GARTH, Circuit Judges
(Opinion filed: August 4, 2009)
_________
OPINION
_________
PER CURIAM
Petitioner Marc David Cadet seeks review of a final order of removal. For the
reasons that follow, we will dismiss the petition for review for lack of jurisdiction.

-- 1 of 4 --

2
I.
Cadet is a native and citizen of Haiti. He entered the United States in August
1993, at age six, and became a lawful permanent resident. In March 2007, Cadet was
convicted in the New Jersey Superior Court of possessing with intent to distribute less
than one-half ounce of cocaine and heroin in violation of N.J. Stat. Ann. § 2C:35-5(b)(3).
He was sentenced to two years probation, conditioned on his serving 364 days of
imprisonment. DHS served Cadet with a Notice to Appear in April 2008.
An Immigration Judge (“IJ”) determined that Cadet’s conviction constituted an
“aggravated felony” and, thus, that Cadet was ineligible for his requested relief:
cancellation of removal. The Board of Immigration Appeals (“BIA”) affirmed. In
addition to its agreement with the IJ’s aggravated felony determination, the BIA held that
“[t]he exception under 21 U.S.C. 841(b)(4) for possession of small amounts of marijuana
distributed without remuneration, for which [Cadet] relies on appeal, is not applicable
because his conviction involves heroin and/or cocaine rather than marijuana.” (A.R. 2.)
The BIA also held that Cadet’s conviction rendered him ineligible for withholding of
removal, and that he had “provided no indication on appeal that he seeks or could qualify
for” deferral of removal under the Convention Against Torture (“CAT”). (A.R. 2.) Cadet
filed this petition for review.
II.
Our jurisdiction to review final orders of removal is governed by 8 U.S.C.

-- 2 of 4 --

3
§ 1252(a). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). As stated above, the
Attorney General has concluded that Cadet’s state criminal conviction constitutes an
aggravated felony. We have limited jurisdiction in these circumstances: “once we
determine that the state criminal statute fits the legal definition of aggravated felony, our
review of an alien’s deportability comes to an end.” Wilson v. Ashcroft, 350 F.3d 377,
381 (3d Cir. 2003); see 8 U.S.C. § 1252(a)(2)(D) (preserving judicial review of
constitutional claims and questions of law). Our review in making that determination is
de novo. See Evanson v. Att’y Gen., 550 F.3d 284, 288 (3d Cir. 2008)
III.
We conclude that Cadet’s New Jersey conviction constitutes an aggravated felony
using the hypothetical federal felony approach. “Under the hypothetical federal felony
route, we compare the offense of conviction to the federal Controlled Substances Act to
determine if it is analogous to an offense under that Act.” Id. at 289. In doing so, we
presumptively apply the “formal categorical approach” from Taylor v. United States, 495
U.S. 575, 600 (1990), looking only to the statutory definition of the prior conviction and
not its underlying facts. Garcia v. Att’y Gen., 462 F.3d 287, 291 (3d Cir. 2006).
We have already recognized that N.J. Stat. Ann. § 2C:35-5(a) generally proscribes
the same conduct as its federal analog: 21 U.S.C. § 841(a). See Wilson, 350 F.3d at 381.
The specific provision under which Cadet was convicted criminalizes the manufacture,
distribution and dispensation of less than one-half ounce of cocaine and heroin, as well as

-- 3 of 4 --

4
the possession of those substances if there is intent to perform any of the aforesaid acts.
See N.J. Stat. Ann. § 2C:35-5(b). Similarly, the Controlled Substances Act (“CSA”)
makes it a crime to “manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). And
both heroin and cocaine are “controlled substances” under the CSA. See 21 U.S.C.
§ 802(6); 21 U.S.C. §§ 812(c)(Sched. I)(b)(1) and 812(c)(Sched. II)(a)(4).
Finally, the conduct proscribed by the New Jersey law is punishable by more than
one year of imprisonment under the CSA. See 8 U.S.C. § 841(b)(1)(C). Therefore,
Cadet’s conviction, upon which his removability is predicated, constitutes an aggravated
felony. See 8 U.S.C. § 1101(a)(43)(B) (“The term ‘aggravated felony’ means . . . 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)”); Gerbier v. Holmes, 280
F.3d 297, 301 (3d Cir. 2002) (“drug trafficking crime” is defined as any felony punishable
under the CSA).
Accordingly, we will dismiss the petition for review for lack of jurisdiction. See 8
U.S.C. § 1252(a)(2)(C).

-- 4 of 4 --