Drug Identity Is Not an Element of N.J. Stat. § 2C:35-5(b)(1): Second Circuit Bars the Modified Categorical Approach in Aggravated-Felony Removal

Case: Amaro Luna v. Bondi, No. 22-6399 (2d Cir. Oct. 10, 2025) (summary order)

Panel: Circuit Judges Beth Robinson and Sarah A. L. Merriam

Disposition: Petition for review granted; BIA decision vacated; case remanded

Note on precedential status: This is a Second Circuit “summary order,” which under Local Rule 32.1.1 does not have precedential effect. It may be cited for its persuasive value pursuant to Federal Rule of Appellate Procedure 32.1.

Introduction

This immigration case addresses whether a New Jersey drug distribution statute—N.J. Stat. Ann. § 2C:35-5(b)(1)—is “divisible” with respect to the identity of the controlled substance. Divisibility matters because it determines whether adjudicators may consult a noncitizen’s record of conviction to pinpoint the particular drug involved when deciding removability for an aggravated felony “drug trafficking” offense under the Immigration and Nationality Act (INA).

Petitioner Albert Modesto Amaro Luna, a native and citizen of the Dominican Republic, was ordered removed after the Immigration Judge (IJ) and Board of Immigration Appeals (BIA) concluded his 2020 conviction under N.J. Stat. Ann. § 2C:35-5(a)(1) and (b)(1) qualified as an aggravated felony drug trafficking offense pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Before the BIA, the Government did not challenge the IJ’s overbreadth finding—that the New Jersey law sweeps more broadly than the federal Controlled Substances Act (CSA) schedules—so the sole live issue on petition for review was whether the statute is divisible as to drug identity. If indivisible, the categorical approach controls, and the agency may not consult the record of conviction to salvage removability; if divisible, the modified categorical approach could permit reference to Shepard documents to match the offense to a federally controlled substance.

The Second Circuit holds the statute is indivisible as to drug identity and that the agency therefore erred in consulting the record of conviction. Because the Government had not otherwise contested overbreadth, the aggravated felony determination cannot stand. The court grants the petition, vacates the BIA’s decision, and remands for further proceedings—leaving unaddressed the IJ’s alternative “crimes involving moral turpitude” ground, which the BIA did not reach.

Summary of the Opinion

Issue framed: Whether N.J. Stat. Ann. § 2C:35-5(b)(1) is divisible as to drug identity so that the agency could use the modified categorical approach to consult the record of conviction.
Government’s posture: The Government did not contest the IJ’s determination that the New Jersey statute encompasses substances not on the federal schedules (i.e., it is categorically overbroad). Thus, divisibility was the only live question for purposes of the aggravated felony ground.
Holding: Section 2C:35-5(b)(1) is indivisible with respect to drug identity. Because drug identity is not an element of the New Jersey offense under subsection (b)(1), the modified categorical approach is unavailable. The agency erred by looking to the record of conviction to identify the substance.
Support: The panel aligns with a recent Second Circuit panel in Johnson v. Garland, 2024 WL 4820980 (2d Cir. Nov. 19, 2024) (summary order), and analogizes to Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017), and Stankiewicz v. Garland, 103 F.4th 119 (2d Cir. 2024).
Scope limitation: The court “decline[s] to consider the Government’s argument that even if the statute is indivisible, it is still a categorical match with the [CSA]’s drug schedules,” because the Government did not timely challenge the IJ’s overbreadth ruling and because the only issue presented was divisibility.
Disposition: Petition granted; BIA decision vacated; remanded for further proceedings consistent with the opinion. The court does not reach the IJ’s alternative CIMT ground, which the BIA had not addressed.

Analysis

Precedents Cited and Their Influence

Moncrieffe v. Holder, 569 U.S. 184 (2013): Establishes the categorical approach for determining whether a state conviction corresponds to a federal removal ground. The court quotes Moncrieffe’s baseline rule: focus on elements, not facts, and ask whether the least of the acts criminalized would be punishable as a felony under the CSA.
Mathis v. United States, 579 U.S. 500 (2016): Distinguishes “elements” (which a jury must unanimously find) from “means” (factual ways of committing a single element). If a statute lists alternative means rather than alternative elements, it is indivisible, and courts may not use the modified categorical approach.
Mellouli v. Lynch, 575 U.S. 798 (2015): Reinforces that the modified categorical approach applies only to divisible statutes and that inquiry into case-specific facts is “off limits” in a categorical analysis.
Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017): Holds that a New York “sale of a controlled substance” statute is indivisible as to drug identity because identity is not an element and jurors need not unanimously agree on the particular substance.
Stankiewicz v. Garland, 103 F.4th 119 (2d Cir. 2024): Explains how to determine elements-versus-means by looking to statutory text and state-court interpretations; concludes New Jersey’s school-zone distribution offense is indivisible as to drug identity.
Johnson v. Garland, No. 23-6590, 2024 WL 4820980 (2d Cir. Nov. 19, 2024) (summary order): Specifically addresses § 2C:35-5(b)(1), concluding drug identity is not an element and the subsection is indivisible. The present panel expressly agrees.
Chery v. Garland, 16 F.4th 980 (2d Cir. 2021): Confirms that whether a conviction is an aggravated felony is reviewed de novo and that the court reviews the IJ’s decision as modified by the BIA, limiting review to the grounds the BIA actually relied upon.
Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir. 2005): Articulates the “IJ decision as modified by the BIA” review framework, which narrows the issues the court may consider.

These authorities collectively shape the court’s approach: the court must look only to the statutory elements and, unless the statute is divisible, may not consult the record of conviction. The question of divisibility hinges on whether drug identity is an element. Finding no element-by-drug structure in § 2C:35-5(b)(1), the court follows Harbin and Stankiewicz to hold the New Jersey provision indivisible.

Legal Reasoning

1) The categorical baseline and the aggravated-felony inquiry. An aggravated felony “drug trafficking crime” covers any felony punishable under the CSA. The court asks whether a conviction under § 2C:35-5(b)(1)—as a categorical matter—necessarily involves conduct that would be a felony under the CSA. The IJ had found the New Jersey statute overbroad relative to federal schedules, meaning it criminalizes substances not federally controlled. The Government did not challenge that overbreadth finding before the BIA, so the only pathway left to sustain removability was to show the statute is divisible and to use the modified categorical approach to tie Mr. Amaro Luna’s conviction to a federally listed drug.

2) Elements versus means under § 2C:35-5(b)(1). The panel determines that drug identity is not an element within subsection (b)(1):

Textual structure: Subsection (a)(1) criminalizes manufacturing, distributing, or dispensing “a controlled dangerous substance or controlled substance analog.” Subsection (b) then sets offense degrees by reference to categories of substances and quantities. Within (b)(1), multiple substances (e.g., heroin, coca leaves and derivatives, MDMA/MDA) are grouped together without distinct element sets or penalties. Nothing in the text requires jury unanimity as to which particular substance among those listed was involved.
Penalty uniformity: The same first-degree penalty applies under (b)(1) regardless of which of the listed substances is involved (so long as the quantity threshold—five ounces or more including adulterants or dilutants—is met). This uniformity strongly signals that drug identity within the (b)(1) grouping is a factual “means,” not a separate element.
Jury unanimity and the Harbin/Stankiewicz analogy: Echoing Harbin, the court explains that a jury could convict a defendant for distributing “a controlled substance” under (b)(1) even if some jurors believed it was heroin and others believed it was cocaine. That is the signature of a means-based alternative, not an element that demands unanimity.

3) Consequence: the statute is indivisible; modified categorical approach is off-limits. Because the statute is indivisible as to drug identity, adjudicators cannot consult charging documents, plea colloquies, or other Shepard records to identify the particular substance. The categorical analysis is confined to the statutory elements, which—given the Government’s nonchallenge to overbreadth—do not categorically match the CSA schedules. On that logic, the aggravated felony ground fails.

4) Issue limitation and forfeiture-like principle. The court explicitly refuses to entertain the Government’s argument that, even if indivisible, § 2C:35-5(b)(1) is still a categorical match to the CSA. The panel’s reason is twofold: (i) the Government did not challenge the IJ’s overbreadth finding before the BIA (and thus framed the case in the court of appeals around divisibility alone); and (ii) the court limits its review to grounds embraced by the BIA (Xue Hong Yang/Chery), avoiding alternative rationales the agency did not adopt. This fidelity to the record and to administrative law channels (akin to the Chenery principle) controls the scope of appellate review and prevents post hoc rationalizations on appeal.

Impact

Within the Second Circuit:

Aggravated felony drug trafficking: For New Jersey convictions under § 2C:35-5(b)(1), DHS cannot rely on the modified categorical approach to identify the drug and “cure” an overbreadth problem vis-à-vis the CSA schedules—because drug identity is not an element. If (as here) overbreadth is not contested and thus stands, such convictions will generally not qualify as aggravated felonies under 8 U.S.C. § 1101(a)(43)(B).
BIA/IJ proceedings on remand: The BIA may address the IJ’s alternative removability theory (two crimes involving moral turpitude), which it previously declined to reach. The aggravated-felony bar to certain forms of relief (e.g., cancellation of removal for lawful permanent residents and some discretionary relief) may no longer apply if the aggravated-felony designation falls away, though other criminal grounds may still matter.
Practice guidance: Noncitizens with New Jersey § 2C:35-5(b)(1) convictions litigating in the Second Circuit should challenge aggravated-felony designations premised on modified categorical reasoning. Practitioners should also assess whether DHS has preserved any argument that the statute categorically matches the CSA schedules; where not preserved, courts may confine review accordingly.

Beyond this case:

Doctrinal reinforcement: The order consolidates the Second Circuit’s means/elements methodology in drug cases, extending the logic of Harbin and Stankiewicz to § 2C:35-5(b)(1). While nonprecedential, it signals how future panels are likely to assess similar New Jersey provisions and underscores the centrality of jury-unanimity and penalty-structure cues in the indivisibility analysis.
Limited reach of record-of-conviction documents: This case serves as a clear reminder that plea colloquies and charging documents cannot be used to identify the drug unless the statute is divisible as to drug identity. Counsel should scrutinize statutory text for whether it lists alternative elements or merely alternative factual means.
Preservation matters: The court’s refusal to entertain the Government’s late-breaking categorical-match argument highlights the importance of issue preservation before the agency and in appellate briefing. Parties risk losing potentially dispositive theories if they are not timely presented.

Complex Concepts Simplified

Categorical approach: A method courts use to decide if a state conviction matches a federal removal ground. The court looks only at the legal elements of the crime, not at the actual facts of the person’s conduct. If the least serious conduct covered by the statute would not be a federal offense (here, a CSA felony), the state conviction does not qualify.
Modified categorical approach: A limited tool that applies only to divisible statutes—those that set out alternative elements defining separate crimes. It allows consulting a narrow set of records (e.g., indictment, plea colloquy) to identify which statutory alternative formed the basis of the conviction. It does not permit a free-ranging inquiry into facts.
Elements versus means: Elements are what a jury must unanimously find beyond a reasonable doubt (or what a defendant admits when pleading guilty). Means are factual ways of satisfying an element. If a statute lists means (e.g., different drugs) rather than elements, jurors need not agree on them. Means-based alternatives make the statute indivisible.
Divisible statute: One that lists alternative elements (e.g., “assault with a gun” versus “assault with a knife”) each defining a different crime or requiring jury unanimity as to the alternative chosen. Only divisible statutes permit the modified categorical approach.
Overbreadth: A statute is overbroad if it criminalizes conduct more broadly than the federal definition at issue (here, the CSA schedules). If the statute covers substances not federally controlled, it is overbroad and not a categorical match unless the statute is divisible and the record shows conviction under the federally matching alternative.
Record of conviction (Shepard documents): The limited set of documents (charging instrument, plea agreement, plea colloquy, jury instructions) that a court may consult under the modified categorical approach to identify which statutory alternative formed the basis of a conviction.
Summary order: An appellate decision designated as nonprecedential. It may be cited for persuasive value but does not bind future panels as precedent. This designation does not lessen its immediate effect in the case or its practical guidance for similar disputes.
Aggravated felony (drug trafficking): For immigration purposes, this includes any “drug trafficking crime,” i.e., a felony punishable under the CSA. An aggravated felony has severe immigration consequences, including mandatory removal and ineligibility for many forms of relief.

Conclusion

In Amaro Luna v. Bondi, the Second Circuit provides clear, persuasive guidance that N.J. Stat. Ann. § 2C:35-5(b)(1) is indivisible with respect to drug identity. Because drug identity is not an element of the offense under that subsection, adjudicators may not use the modified categorical approach to look into the record of conviction to determine which drug was involved. In light of the Government’s failure to contest overbreadth relative to the federal CSA schedules, the aggravated felony drug trafficking designation cannot be sustained. The court therefore grants the petition, vacates the BIA’s decision, and remands for further proceedings, leaving open the agency’s consideration of alternative grounds such as crimes involving moral turpitude.

The order reinforces core categorical-approach principles from Moncrieffe, Mathis, and Mellouli, and it aligns with Second Circuit decisions like Harbin and Stankiewicz that treat drug identity as a “means” when statutory text and penalty structure do not require jury unanimity by substance. For practitioners and adjudicators alike, the case underscores two enduring lessons: (1) elements-versus-means analysis controls the availability of the modified categorical approach; and (2) preservation of arguments before the agency is decisive, as courts will cabin review to the issues the BIA actually decided. While nonprecedential, this decision will likely shape how New Jersey distribution convictions are analyzed in immigration proceedings within the Second Circuit, especially when the state schedules sweep more broadly than the federal CSA.