Date: Jul 18, 2026

Divisibility of N.J. Stat. Ann. § 2C:35-5 by Drug Type and the Noncitizen’s Burden When the Conviction Record Is Inconclusive

1. Introduction

In Faheem Tariq v. Attorney General United States of America (3d Cir. July 15, 2026) (not precedential), the Third Circuit denied a pro se petition for review challenging a Board of Immigration Appeals (“BIA”) decision that pretermitted (i.e., dismissed without reaching the merits) Faheem Tariq’s application for cancellation of removal.

Tariq, a Pakistani citizen and lawful permanent resident, pleaded guilty in New Jersey state court in 2020 to drug offenses under N.J. Stat. Ann. § 2C:35-5(a)(1) and § 2C:35-5(b)(5), then later traveled abroad. When he attempted to reenter, the Department of Homeland Security charged him as inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled-substance conviction). He conceded inadmissibility but sought cancellation of removal for lawful permanent residents under 8 U.S.C. § 1229b(a).

The central issue was whether Tariq’s New Jersey conviction qualified as an “aggravated felony” (specifically, illicit drug trafficking) under 8 U.S.C. § 1101(a)(43)(B), which would make him ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3).

2. Summary of the Opinion

The Third Circuit held that N.J. Stat. Ann. § 2C:35-5 is divisible by drug type, permitting application of the modified categorical approach. Looking to the record of conviction, the court found it inconclusive as to the specific controlled substance involved (the indictment referenced only a “Schedule II narcotic drug”).

Because a noncitizen bears the burden of proving eligibility for cancellation of removal, and an inconclusive conviction record does not satisfy that burden, the court agreed with the BIA that Tariq failed to show his conviction was not an aggravated felony. The petition for review was therefore denied.

3. Analysis

A. Precedents Cited

Balogun v. Ashcroft, 270 F.3d 274 (5th Cir. 2001): Cited for the proposition that inadmissibility under § 1182(a) can also make a person removable; used to frame the jurisdictional/removability posture for arriving (or returning) noncitizens charged with controlled-substance offenses.
Kamara v. Att'y Gen., 420 F.3d 202 (3d Cir. 2005): Defined the scope of judicial review notwithstanding the criminal-alien jurisdictional bar—courts retain jurisdiction over constitutional claims and “pure questions of law,” including application-of-law-to-undisputed-fact issues, via 8 U.S.C. § 1252(a)(2)(D).
Chavez-Alvarez v. Att'y Gen., 783 F.3d 478 (3d Cir. 2015): Supported de novo review of the legal question whether the BIA correctly applied the aggravated-felony framework to the conviction.
Evanson v. Att'y Gen., 550 F.3d 284 (3d Cir. 2008): Supplied the operative aggravated-felony test for state drug crimes: a state drug conviction constitutes an aggravated felony if “it would be punishable as a felony under the federal Controlled Substances Act [CSA].”
Moncrieffe v. Holder, 569 U.S. 184 (2013): Anchored the categorical approach and described the “record of conviction” materials relevant under the modified categorical approach (especially for guilty pleas).
Javier v. Att'y Gen., 826 F.3d 127 (3d Cir. 2016): Quoted for determining “the least culpable conduct” necessary for conviction under the state statute in categorical analysis.
Martinez v. Att'y Gen., 906 F.3d 281 (3d Cir. 2018): Reinforced that categorical comparison of controlled-substance schedules is done “at the time of conviction.”
Descamps v. United States, 570 U.S. 254 (2013): Defined divisibility—whether a statute sets out elements “in the alternative”—as the gateway to the modified categorical approach.
Larios v. Att'y Gen., 978 F.3d 62 (3d Cir. 2020): Confirmed use of the modified categorical approach when a statute is divisible.
Mathis v. United States, 579 U.S. 500 (2016): Clarified how to identify elements versus means and reiterated that where alternatives change the penalty range, they are elements; also reaffirmed reliance on Shepard v. United States documents.
Shepard v. United States, 544 U.S. 13 (2005): Identified permissible conviction-record materials (e.g., plea agreement, plea colloquy, charging document).
United States v. Abbott, 748 F.3d 154 (3d Cir. 2014): The pivotal analogical precedent. The court relied on Abbott’s reasoning that where drug type affects sentencing exposure, drug type is an element, making the statute divisible.
Apprendi v. New Jersey, 530 U.S. 466 (2000): Underpinned the element/penalty logic—facts increasing the statutory maximum must be treated as elements (found by a jury or admitted), supporting divisibility when drug type changes punishment.
Air Courier Conf. of Am./Int'l Comm. v. U.S. Postal Serv., 959 F.2d 1213 (3d Cir. 1992): Supported the interpretive approach of reading statutes “as a whole,” used to justify examining § 2C:35-5’s penalty structure across subsections.
Syblis v. Att'y Gen., 763 F.3d 348 (3d Cir. 2014): The controlling burden-of-proof principle in the Third Circuit—an “inconclusive record of conviction” does not satisfy a noncitizen’s burden to show eligibility for relief.
Gutierrez v. Sessions, 887 F.3d 770 (6th Cir. 2018): Cited in agreement with Syblis—if the statute is overbroad and divisible and the record is inconclusive, the relief applicant loses on burden.
Jean-Louis v. Att'y Gen., 582 F.3d 462 (3d Cir. 2009): Reiterated the general rule that the applicant bears the burden of establishing eligibility for discretionary cancellation of removal.

B. Legal Reasoning

Jurisdictional posture: Because Tariq was removable for a criminal ground covered in § 1182(a)(2), the court acknowledged the limitation on review under 8 U.S.C. § 1252(a)(2)(C), but exercised jurisdiction under § 1252(a)(2)(D) to resolve the legal question whether the conviction was an aggravated felony for cancellation purposes.
Aggravated-felony framework: Under § 1101(a)(43)(B) and Evanson v. Att'y Gen., the question is whether the state offense would be punishable as a felony under the federal CSA.
Categorical approach and overbreadth: The BIA accepted (and the court did not disturb) that the New Jersey controlled-substance coverage is broader than the CSA, which triggers the need to assess divisibility (rather than ending the inquiry).
Divisibility by drug type: Relying heavily on United States v. Abbott, and reading New Jersey’s statute “as a whole” per Air Courier Conf. of Am./Int'l Comm. v. U.S. Postal Serv., the court reasoned that New Jersey’s scheme sets different penalty ranges depending on the type and quantity of substance. Under Apprendi v. New Jersey and Mathis v. United States, if an alternative changes the punishment, it is treated as an element. Therefore, drug type is an element, and the statute is divisible as to drug type.
Modified categorical approach and the conviction record: With divisibility established, the court turned to “Shepard documents” as described in Shepard v. United States and Moncrieffe v. Holder. The only drug reference was the indictment’s description of a “Schedule II narcotic drug” (less than one ounce), which did not identify a particular substance.
Burden and inconclusiveness: Because Tariq sought cancellation of removal, he carried the burden of proving eligibility. Under Syblis v. Att'y Gen. (and consistent with Gutierrez v. Sessions and Jean-Louis v. Att'y Gen.), an inconclusive record of conviction is insufficient. The court therefore upheld the BIA’s conclusion that Tariq failed to show his conviction was not an aggravated felony.

C. Impact

New Jersey drug convictions and divisibility: Even though the decision is “NOT PRECEDENTIAL,” it signals how the Third Circuit is likely to analyze N.J. Stat. Ann. § 2C:35-5: as divisible by drug type due to penalty differentiation, aligning New Jersey with the divisibility logic applied in United States v. Abbott (Pennsylvania).
Practical burden-of-proof consequences: The opinion reinforces a high-stakes evidentiary reality for relief applicants: when the state statute is overbroad but divisible, failure to secure conviction records specifying the drug can be dispositive. A charging document that names only a schedule (e.g., “Schedule II narcotic”) may be too vague to carry the applicant’s burden.
Relief screening at the IJ stage: The government’s use of a motion to pretermit, and the court’s approval of that approach where the record is inconclusive, may encourage early litigation over divisibility and Shepard documents rather than full hearings on discretionary factors.

4. Complex Concepts Simplified

Inadmissible vs. removable: “Inadmissible” generally applies at entry (including some returning residents treated as applicants for admission); “removable” applies to being expelled from within the U.S. Here, the controlled-substance conviction triggered inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(II).
Cancellation of removal (LPR cancellation): A discretionary form of relief under 8 U.S.C. § 1229b(a). Even if a person meets residence requirements, they are categorically ineligible if convicted of an aggravated felony under § 1229b(a)(3).
Aggravated felony (drug trafficking): A federal immigration term of art. For drug crimes, it can include certain state convictions that match felony punishability under the federal CSA (as articulated in Evanson v. Att'y Gen.).
Categorical approach: A method that compares the elements of the state offense to the federal generic offense (or federal controlled-substance scheme), focusing on what the statute necessarily covers, not the defendant’s real-world conduct (Moncrieffe v. Holder).
Divisible statute: A statute is divisible if it lists alternative elements—effectively multiple crimes—such that a court can identify which alternative formed the basis of conviction (Descamps v. United States).
Modified categorical approach / Shepard documents: If divisible, the adjudicator may consult a limited set of reliable court records (charging document, plea colloquy, plea agreement, jury instructions) to determine which statutory alternative was the basis of conviction (Shepard v. United States; Mathis v. United States).
Inconclusive record of conviction: When the permissible conviction documents do not reveal the necessary element (here, the specific drug). In the Third Circuit, that inconclusiveness generally defeats a relief applicant’s burden (Syblis v. Att'y Gen.).

5. Conclusion

The Third Circuit’s decision turns on two linked determinations: (1) N.J. Stat. Ann. § 2C:35-5 is divisible by drug type because drug type affects the range of punishment (invoking United States v. Abbott, Apprendi v. New Jersey, and Mathis v. United States), and (2) when a noncitizen seeks cancellation of removal, an inconclusive record of conviction as to the divisibility-critical element (the specific drug) means the noncitizen fails to carry the burden of proving eligibility (Syblis v. Att'y Gen.).

Although labeled not precedential, the opinion provides a clear roadmap for how divisibility and burden-of-proof principles can combine to foreclose cancellation of removal where the conviction paperwork does not precisely identify the controlled substance.