Yesterday afternoon we received a helpful unpublished decision from the BIA on a pro bono appeal we had filed for a permanent resident from Connecticut. The case involves the distinction between conspiracy and a predicate offense in determining whether a conviction is an aggravated felony. It also raises the issue of what an Immigration Judge is allowed to consider when certain documents aren’t in the record. I’m sharing it in case the decision helps anyone with a similar circumstance (posted in full below).


Our client had a conviction for conspiracy to commit burglary as well as a conviction the court concluded was a controlled substance offense. Without an attorney in immigration court, the immigrant applied for cancellation of removal, but the IJ decided the “burglary” offense was an aggravated felony and thus denied relief and ordered removal. We took over on appeal and began to look for issues with the immigration proceedings.

The Issues

Immediately upon reviewing the transcript it became clear that the court had made a number of errors. Most notably, the Connecticut controlled substance statute was broader than the federal definition, meaning substances could be considered a “controlled substance” under Connecticut law that aren’t controlled substances federally, raising the same problem the Supreme Court had identified in Mellouli v. Lynch.

Because only federally controlled substances trigger removability as a “controlled substance” offense, convictions in states that control more substances than the federal government does may include substances that aren’t sufficient to trigger deportation. For example, the Connecticut statute controls certain isomers, “opium poppy,” Jimson Weed, and salvia divinorum which aren’t on the federal list.

The judge had also relied on a number of resources including what he described as a “DEA Handbook” that wasn’t in the record. And our review of the DEA’s drug schedules revealed that the Connecticut list and the federal list were not an exact match. Moreover, because our client was a permanent resident, the DHS had the burden of proving that his conviction was really a controlled substance offense and not something else. Thus, having these documents missing from the record was a significant issue and raised serious questions about the Immigration Judge’s decision to deport our client, a lawful permanent resident of the United States.

Finally, the court had mistakenly conflated the crime of “burglary” with the crime of “conspiracy to commit burglary,” which are distinct offenses. The immigrant had been convicted of Conspiracy to Commit Burglary in the Third Degree under Conn. Gen Stat. §53a-48. The BIA has held that deciding what is a “conspiracy” under the Aggravated Felony definition at INA 101(a)(43)(U) is entirely distinct from that of the predicate offense. Matter of Richardson, 25 I. & N. Dec. 226, 230 (BIA 2010). A conspiracy offense under federal law requires certain facts that sometimes aren’t required under a state’s version of “conspiracy.” And if an immigrant is convicted of “conspiracy” in a state that has a much broader conspiracy statute than the federal definition of “conspiracy” it is highly possible that a state conviction which is labeled as “conspiracy” might not actually amount to a conspiracy conviction under federal law.

The result is a remand to the Immigration Judge to make a new decision.

Matter of O-H-: