Affirmation of Divisibility of Pennsylvania Drug Statute and Modified Categorical Analysis in Removal Proceedings

Introduction

Leury Bacilio Roa v. Pamela Bondi (6th Cir. May 27, 2025) addresses whether Pennsylvania’s controlled‐substance statute, 35 Pa. Cons. Stat. § 780-113(a)(30), categorically or divisibly matches the federal definition of a removable drug offense under 8 U.S.C. § 1227(a)(2). The petitioner, Leury Bacilio Roa—a lawful permanent resident from the Dominican Republic—was convicted in Pennsylvania of manufacturing and delivering cocaine. The Department of Homeland Security charged him with removability on three grounds: a controlled‐substance offense under § 1227(a)(2)(B)(i), an aggravated felony involving illicit trafficking under § 1227(a)(2)(A)(iii), and conspiracy to commit an aggravated felony under § 1227(a)(2)(A)(iii). After his removal order was affirmed by both the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA), Bacilio Roa petitioned this Court of Appeals, arguing that his Pennsylvania convictions did not constitute removable offenses. The Sixth Circuit had to determine (1) whether it retained jurisdiction to entertain his challenge and (2) whether his convictions triggered removability under federal law.

Summary of the Judgment

The Sixth Circuit dismissed Bacilio Roa’s petition for review for lack of jurisdiction after concluding that:

It retained jurisdiction to decide pure questions of law concerning the scope of removable offenses, under 8 U.S.C. § 1252(a)(2)(D).
Under the categorical approach, Pennsylvania’s § 780-113(a)(30) appeared to criminalize more conduct (all controlled substances listed in state schedules) than the generic federal definitions, thus potentially exceeding the federal offense.
Because § 780-113(a)(30) is divisible—as previously held in this circuit in Raja v. Sessions—the court applied the modified categorical approach to identify the precise crime of conviction from Shepard-approved documents.
The criminal information and plea documents showed that Bacilio Roa pleaded guilty specifically to an offense involving cocaine, a Schedule II substance under the federal Controlled Substances Act (CSA).
Cocaine is a federally controlled substance; thus his conviction qualified as both a “controlled‐substance offense” under 8 U.S.C. § 1227(a)(2)(B)(i) and an “aggravated felony” involving illicit trafficking under 8 U.S.C. § 1227(a)(2)(A)(iii).

Having determined that Bacilio Roa’s conviction fell squarely within the removable‐offense definitions, the court dismissed the petition for review because it lacked jurisdiction to overrule a valid removal order predicated on a covered criminal offense.

Analysis

Precedents Cited

The court’s analysis turned on several key precedents:

Moncrieffe v. Holder, 569 U.S. 184 (2013): Established the “categorical approach,” comparing elements of a state statute to the generic federal offense.
Mathis v. United States, 579 U.S. 500 (2016): Clarified the distinction between “indivisible” and “divisible” statutes and authorized the modified categorical approach for divisible statutes.
Raja v. Sessions, 900 F.3d 823 (6th Cir. 2018): Held that Pennsylvania’s § 780-113(a)(30) is divisible because each controlled substance listed is an alternative element, and so the modified categorical approach applies.
Mellouli v. Lynch, 575 U.S. 798 (2015): Confirmed that the federal CSA schedules define the universe of “controlled substances” incorporated by 8 U.S.C. § 1227(a)(2)(B)(i).
Lopez v. Gonzales, 549 U.S. 47 (2006): Explained that a state offense qualifies as a “drug trafficking crime” (for aggravated‐felony purposes) only if it is punishable as a felony under the CSA.

Legal Reasoning

1. Jurisdictional Framework: Under 8 U.S.C. § 1252(a)(2)(C), federal courts cannot review removal orders based on covered criminal grounds. However, § 1252(a)(2)(D) preserves jurisdiction over pure legal questions, such as the proper categorization of a state conviction.

2. Categorical vs. Modified Categorical Approach:

The categorical approach asks whether the statutory elements necessarily fit within the generic federal offense.
When a statute is divisible (lists alternate elements), the modified categorical approach permits courts to consult Shepard documents—charging papers, plea agreements, transcript excerpts—to identify the specific factual basis of conviction.

3. Divisibility of § 780-113(a)(30): Bacilio Roa urged overruling Raja by pointing to post-Raja Pennsylvania cases (Ramsey, Beatty) that arguably cast doubt on divisibility. The Sixth Circuit declined, noting:

Only an en banc court or intervening binding state‐supreme-court authority can overrule published circuit precedent.
Ramsey merely addressed double‐jeopardy in compound‐mixture cases and did not reject Swavely’s treatment of different controlled substances as separate elements.
Beatty involved conspiracy and did not even cite Swavely; it did not refute divisibility.

4. Modified Categorical Analysis Applied: The court examined the criminal information (which expressly charged cocaine) and the plea colloquy/agreement. Together they established with certainty that Bacilio Roa pleaded guilty to a cocaine offense, a Schedule II drug under federal law. That factual showing triggered removability under both § 1227(a)(2)(B)(i) and § 1227(a)(2)(A)(iii).

Impact on Future Cases

This decision reinforces the Sixth Circuit’s adherence to its binding precedent on divisibility and underscores the importance of the modified categorical approach in removal proceedings. Practitioners should note:

State statutes listing multiple controlled substances will likely remain divisible so long as each substance constitutes an alternative element.
Shepard‐approved documents are critical for establishing the precise nature of the state conviction.
Challenging divisibility demands clear intervening controlling authority, either from the Supreme Court or the state’s highest court.

Complex Concepts Simplified

Categorical Approach: A method where courts compare a state statute’s elements to a federal statute’s generic definition. If every violation under the state statute necessarily violates the federal law, the conviction is removable.
Divisible Statute: A statute that lists multiple items in the alternative (e.g., delivery of “cocaine, heroin, or methamphetamine”), making each drug a separate element.
Modified Categorical Approach: When a statute is divisible, courts may examine certain trial or plea documents to figure out which alternative element formed the basis of the conviction.
Shepard Documents: The charging instrument, plea agreement, transcript of plea colloquy, or other judicial records that reliably reveal the offense of conviction.

Conclusion

Leury Bacilio Roa v. Pamela Bondi affirms that Pennsylvania’s § 780-113(a)(30) is a divisible statute for removal purposes and that the modified categorical approach—through charging papers and plea documents—can establish whether a conviction involved a federally controlled substance. Because Bacilio Roa pleaded guilty to manufacturing and delivering cocaine, his conviction qualified as both a “controlled‐substance offense” and an aggravated felony under the Immigration and Nationality Act. The Sixth Circuit thus properly dismissed his petition for review for lack of jurisdiction. This ruling solidifies the framework for assessing state drug convictions in removal proceedings and highlights the enduring authority of prior circuit precedent on divisibility.