In the United States Court of Appeals For the Second Circuit

August Term, 2022

(Argued: February 21, 2023 Decided: May 31, 2024)

Docket Nos. 21-6265(L), 22-6121(Con)

ALEKSANDRA MALGORZATA STANKIEWICZ,

Petitioner,

–v.–

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

Before: WALKER, LYNCH, and ROBINSON, Circuit Judges.

In this case, we must decide whether N.J. Stat. § 2C:35-7, which criminalizes distributing a controlled substance on or near school property, is an “aggravated felony,” as defined in 8 U.S.C. § 1101(a)(43)(B).

Petitioner Aleksandra Malgorzata Stankiewicz was convicted in 2003 of violating § 2C:35-7. In removal proceedings initiated in 2018, the immigration judge (IJ) and the Board of Immigration Appeals (BIA) concluded that Stankiewicz’s § 2C:35-7 conviction was an aggravated felony that made her both removable and ineligible to apply for cancellation of removal under 8 U.S.C. § 1229b(a). Stankiewicz now seeks review of that conclusion.

Applying the “categorical approach,” we hold that Stankiewicz’s § 2C:35-7 conviction is not an “aggravated felony” under § 1101(a)(43)(B). In particular, we conclude that a state controlled substances conviction is an aggravated felony if it categorically matches any offense in the federal Controlled Substances Act and is a felony subject to a sentence exceeding one year. Here, neither of the parties’ proposed federal analogs—21 U.S.C. § 860, the federal school zone statute, and 21 U.S.C. § 841, the federal controlled substance distribution statute—categorically matches § 2C:35-7. And, § 2C:35-7 is not divisible. We therefore GRANT Stankiewicz’s petition for review, VACATE the agency’s ruling, and REMAND this case to the BIA for further proceedings consistent with this opinion.

JOSHUA E. BARDAVID, Bardavid Law, P.C., New York, NY (Thomas V. Massucci, Law Office of Thomas V. Massucci, New York, NY, on the brief), for Petitioner.

ALEXANDER J. LUTZ, Trial Attorney, Office of Immigration Litigation (Craig A. Newell, Jr. Senior Litigation Counsel, on the brief), for Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC, for Respondent.

ROBINSON, Circuit Judge:

Under the Immigration and Nationality Act (INA), immigration officials can remove a noncitizen who has been “convicted of an aggravated felony at any time after admission” to the United States. 8 U.S.C. § 1227(a)(2)(A)(iii). Usually, an

2 otherwise-removable permanent resident who has lived in the United States for a certain amount of time can apply to the Attorney General for “[c]ancellation of removal.” 8 U.S.C. § 1229b(a). However, a permanent resident who has been convicted of an “aggravated felony” is not eligible for cancellation of removal. Id. § 1229b(a)(3). Therefore, a permanent resident who has been convicted of an aggravated felony is both removable and statutorily ineligible to apply for cancellation of removal.

The issue in this case is whether Petitioner Aleksandra Malgorzata Stankiewicz’s conviction for distributing a controlled substance on or near schoo