Reaffirming Divisibility by Drug Identity: The Third Circuit Holds Pennsylvania PWID Remains a Controlled-Substance “Element” Offense for INA Removability

Introduction

In Jose Miguel German Santos v. Attorney General United States of America, the U.S. Court of Appeals for the Third Circuit issued a non-precedential opinion denying in part and dismissing in part a petition for review from a lawful permanent resident ordered removed following a Pennsylvania conviction for possession with intent to deliver (PWID) marijuana under 35 P.S. § 780-113(a)(30). The central legal issue was whether Pennsylvania’s PWID statute is divisible by the identity of the controlled substance, such that the specific drug is an element that must be proved beyond a reasonable doubt—thereby enabling immigration authorities and reviewing courts to apply the modified categorical approach and determine if the conviction relates to a substance controlled under federal law for purposes of removability under 8 U.S.C. § 1227(a)(2)(B)(i).

The Board of Immigration Appeals (BIA) had long treated § 780‑113(a)(30) as divisible by drug identity, relying on Third Circuit precedent, including United States v. Abbott and its progeny. Petitioner argued that intervening Pennsylvania decisions—especially Commonwealth v. Beatty and Commonwealth v. Ramsey—had undermined those precedents, rendering drug identity a non-element “means,” and thus making the statute indivisible. The Third Circuit rejected that contention, reaffirmed its prior holdings, and concluded that a PWID-marijuana conviction is a removable controlled-substance offense under the Immigration and Nationality Act (INA).

Beyond that core legal question, the petitioner raised challenges to the Immigration Judge’s adverse credibility findings and the BIA’s refusal to remand for additional evidence bearing on credibility. The Third Circuit dismissed those arguments for lack of jurisdiction as unreviewable factual or discretionary determinations.

Summary of the Opinion

Divisibility and removability: The court held that under binding Third Circuit precedent, the identity of the controlled substance is an element of Pennsylvania PWID (35 P.S. § 780‑113(a)(30)), making the statute divisible by drug. Because the record showed a conviction for PWID marijuana, a federally controlled substance, the conviction qualifies as a “controlled substance offense” under 8 U.S.C. § 1227(a)(2)(B)(i). Removability was therefore established.
No intervening change in law: The court rejected the argument that Pennsylvania cases such as Commonwealth v. Beatty and Commonwealth v. Ramsey abrogated Abbott and its INA counterparts “sub silentio.” Beatty involved conspiracy and knowledge standards, not the elements of the substantive PWID offense or the categorical approach; Ramsey addressed inseparable compound drugs and did not displace the long-standing recognition that the particular drug is an element in PWID prosecutions.
Jurisdictional limits: The court dismissed challenges to the IJ’s adverse credibility determination and to the BIA’s refusal to remand for additional evidence. Those are factual or discretionary rulings outside the court’s review under 8 U.S.C. § 1252, as explained in Jarbough v. Attorney General.
Certification history: The court previously certified to the Pennsylvania Supreme Court the question whether drug identity is an element of PWID. The Pennsylvania Supreme Court declined review, quoting its rule that it accepts certified questions only when “the question of law is one that the petitioning court has not previously decided,” reinforcing the Third Circuit’s view that the issue has already been authoritatively resolved in this Circuit.
Concurring dubitante: Judge McKee concurred dubitante, expressing doubts grounded in Beatty, Ramsey, and Mathis about whether the operative “element” might be the schedule-based penalty grouping rather than the specific drug. Nevertheless, he joined the judgment because the court remains bound by its precedent absent a clear intervening change in controlling law.

Analysis

Precedents Cited and Their Influence

United States v. Abbott, 748 F.3d 154 (3d Cir. 2014): The cornerstone case in which the Third Circuit held that § 780‑113(a)(30) is divisible by drug identity. Applying Alleyne and Apprendi, the court reasoned that because the drug involved can alter the penalty range under Pennsylvania law, drug identity is an “element” that must be proved to a jury beyond a reasonable doubt. That makes the statute divisible for categorical-approach purposes and permits resort to the modified categorical approach.
Avila v. Attorney General, 826 F.3d 662 (3d Cir. 2016): Reaffirmed Abbott’s divisibility holding in the immigration context, confirming its applicability under the INA’s removability provisions.
United States v. Henderson, 841 F.3d 623 (3d Cir. 2016): Construed the cross-referencing to Pennsylvania drug schedules as creating a disjunctive and exhaustive list of standalone crimes, reinforcing divisibility.
Singh v. Attorney General, 839 F.3d 273 (3d Cir. 2016): Emphasized that “drug identity—‘the particular controlled substance’ at issue—is an element” of § 780‑113(a)(30).
Commonwealth v. Swavely, 554 A.2d 946 (Pa. Super. Ct. 1989): A key Pennsylvania case recognizing that the particular controlled substance is an element of PWID, often cited by the Third Circuit as state-law support for Abbott’s conclusion.
Commonwealth v. Beatty, 227 A.3d 1277 (Pa. Super. Ct. 2020): Addressed conspiracy to commit PWID, not the substantive PWID offense. The Superior Court stated that the specific identity of the substance was not an element for that conspiracy conviction where schedule-based penalties would not differ. The Third Circuit explained that Beatty does not change PWID’s elements and does not control categorical-approach analysis.
Commonwealth v. Ramsey, 214 A.3d 274 (Pa. Super. Ct. 2019): Concerned inseparable compound drugs (heroin/fentanyl) and double jeopardy; the Superior Court distinguished Swavely and did not undermine the rule that separate drugs can support separate PWID counts when separable. The Third Circuit read Ramsey as consistent with Swavely and not abrogating the element-by-drug rule.
Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018): Invalidated certain mandatory minimums under Alleyne/Apprendi. The Third Circuit observed that its divisibility holdings do not depend on the existence of mandatory minimums; penalties also differ by maximums, so the element analysis remains intact.
Post-Beatty Pennsylvania practice: Commonwealth v. Shackelford, 293 A.3d 692 (Pa. Super. Ct. 2023) and non-precedential decisions such as Commonwealth v. Samad (2021 WL 1906375) and Commonwealth v. Jackson (2023 WL 3918403) continue to treat drug identity as central—charging, trying, and convicting by specific drug, and citing Swavely with approval.
Supreme Court authorities: Alleyne v. United States, 133 S. Ct. 2151 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), establish that any fact increasing punishment must be treated as an element. Mathis v. United States, 579 U.S. 500 (2016), instructs that statutory alternatives carrying different punishments are elements. Abbott and its progeny apply these principles to Pennsylvania PWID.
Jurisdictional constraint: Jarbough v. Attorney General, 483 F.3d 184 (3d Cir. 2007), frames the court’s limited jurisdiction to review questions of law or constitutional claims, not factual or discretionary determinations such as credibility findings or denial of remand for additional evidence.

Legal Reasoning

The Third Circuit grounded its decision in its established precedent that § 780‑113(a)(30) is divisible by drug identity. Under Alleyne and Apprendi, because the identity of the controlled substance can change the statutory penalties (including maximums) under § 780‑113(f), drug identity is an element of the offense. That conclusion both:

Permits application of the modified categorical approach; and
Allows immigration adjudicators to examine Shepard documents to determine the specific drug underpinning the conviction.

Applying that framework, the record documents showed a conviction for PWID marijuana. Marijuana is a controlled substance under federal law. Therefore, the conviction categorically relates to a federally controlled substance, satisfying § 1227(a)(2)(B)(i).

The court rejected the argument that Pennsylvania appellate decisions after Abbott rendered drug identity a non-element “means.” Chief among petitioner’s cases, Beatty, involved conspiracy to commit PWID and evaluated a sufficiency challenge to the mens rea requirement as to the substance’s identity. The Superior Court there observed that where penalties do not vary between two narcotics, proving a defendant knew the precise chemical identity was unnecessary; knowledge of the controlled nature sufficed. The Third Circuit explained that Beatty (a) addressed an inchoate offense’s mental-state requirement; (b) did not involve the categorical approach or define the elements of the substantive PWID offense; and (c) did not purport to overrule Swavely or alter the element-by-drug rule for § 780‑113(a)(30).

Ramsey similarly did not undermine divisibility. It addressed the unit of prosecution and double jeopardy when a single inseparable compound contains multiple controlled substances, distinguishing cases like Swavely where separate substances supported multiple counts. After Ramsey, Pennsylvania courts continue to charge and try PWID cases by naming the particular drug, and Pennsylvania’s Suggested Standard Criminal Jury Instructions require the “name of the drug,” confirming in practice that drug identity is treated as an element.

The court also noted that when it asked the Pennsylvania Supreme Court to resolve the certified question—whether drug identity is an element of PWID—the court declined, emphasizing its certification rule that it accepts only questions not already decided by the petitioning court. That signals the absence of any clear, intervening state-law change undermining the Third Circuit’s existing rule.

On the non-dispositive issues, the court enforced jurisdictional limits. It dismissed challenges to the IJ’s adverse credibility determination and to the BIA’s refusal to remand for additional evidence as unreviewable factual or discretionary determinations under § 1252(a)(2) and Jarbough. Although the court observed that even on the merits the proposed evidence was neither new nor dispositive, its holding rested on jurisdictional grounds.

The Concurring Opinion (Dubitante)

Judge McKee concurred in the judgment but wrote dubitante—signaling serious doubt without dissent. He underscored that § 780‑113(f) organizes penalties by schedule-based groupings (e.g., Schedule I/II narcotic vs. non-narcotic, Schedules III–V), and invoked Mathis’s teaching that alternatives carrying different punishments are elements. From that vantage, one could argue that the element is the penalty group (schedule category), not the precise drug identity. He pointed to Beatty’s statement that identity is relevant to gradation and Ramsey’s language suggesting the statute’s text itself does not list drug identity as an element of PWID.

Nonetheless, given the Third Circuit’s binding precedent and Pennsylvania charging practice and jury instructions that specify the particular drug, Judge McKee joined the majority while urging clarification from Pennsylvania’s appellate courts. His opinion also highlighted broader concerns with the categorical approach’s artificiality in this domain.

Impact

Immigration consequences in the Third Circuit: Practitioners should continue to expect that Pennsylvania PWID convictions will be treated as divisible by drug identity. If the record of conviction establishes the particular substance and that substance is controlled under the federal schedules, removability under § 1227(a)(2)(B)(i) will follow.
Record of conviction strategy: Defense counsel negotiating Pennsylvania pleas should be acutely aware that identifying a non-federally controlled substance—or ensuring the record of conviction does not specify a federally controlled substance—can be outcome-determinative in immigration cases. Conversely, prosecutors and DHS will rely on Shepard documents to fix drug identity.
No reliance on Beatty to avoid divisibility: Beatty’s conspiracy-focused discussion of mens rea and schedule parity does not unsettle the element-by-drug framework for substantive PWID. Ramsey does not change that result except in specific contexts (inseparable compound substances and unit-of-prosecution concerns).
Continued vitality across contexts: Abbott arose in the ACCA context, but the divisibility rule applies both in federal sentencing and immigration. The opinion reinforces cross-context consistency unless and until Pennsylvania’s highest court or the U.S. Supreme Court provides a contrary controlling rule.
Jurisdictional guardrails: The decision reiterates tight limits on appellate review of credibility findings and discretionary denials of relief in removal cases. Attempts to “recast” factual disagreements as legal issues will not suffice to create jurisdiction.
Potential future developments: The dubitante concurrence and the Pennsylvania Supreme Court’s recent interest (including a dissent from denial of certification) suggest the issue could be revisited. If Pennsylvania were to clarify that schedule groupings—not drug identity—are the operative elements for PWID, that could prompt reconsideration of divisibility under Mathis. For now, the Third Circuit’s rule stands.

Complex Concepts Simplified

Categorical approach: A method courts use to decide whether a prior conviction matches a generic federal definition (e.g., “controlled substance offense”) by looking only at the elements of the statute of conviction, not the underlying facts.
Modified categorical approach: Used when a statute is “divisible”—i.e., lists alternative elements defining multiple distinct crimes. Courts may consult a limited set of record documents (e.g., charging instrument, plea colloquy) to identify which statutory alternative the defendant was convicted of.
Element vs. means: An “element” is a fact the jury must find beyond a reasonable doubt (or to which a defendant pleads) to convict. A “means” is a way of committing an element that need not be unanimously found by the jury. Under Apprendi/Alleyne, facts that alter the prescribed penalty are elements.
Divisible statute: A law that lists alternative elements creating multiple distinct crimes (e.g., PWID heroin vs. PWID marijuana). Divisibility allows use of the modified categorical approach.
Controlled substance offense (INA): Under 8 U.S.C. § 1227(a)(2)(B)(i), a noncitizen convicted of violating any law “relating to” a controlled substance as defined by federal schedules is removable. The government must show the conviction relates to a federally controlled substance.
Aggravated felony (INA): A separate set of offenses defined at 8 U.S.C. § 1101(a)(43). Drug trafficking offenses can qualify, but here the BIA concluded on remand that petitioner’s PWID conviction was not an aggravated felony for § 1227(a)(2)(A)(iii) removal, a point not at issue in this appeal.
Particularly serious crime (PSC): A bar to asylum/withholding relief when certain convictions are deemed especially grave. The IJ initially found PSC, but the present opinion does not revisit that issue on the merits.
Convention Against Torture (CAT): Protection from removal when it is more likely than not the noncitizen would be tortured if returned. The IJ denied CAT; not revisited here.
Sub silentio abrogation: The idea that a later decision implicitly overruled an earlier rule without explicitly saying so. The court rejected the claim that Pennsylvania cases sub silentio abrogated the Third Circuit’s Abbott line.
Jurisdictional bar and Jarbough: Federal courts of appeals generally cannot review factual or purely discretionary immigration decisions (e.g., credibility findings, discretionary denial of cancellation). They retain jurisdiction over legal and constitutional claims under 8 U.S.C. § 1252(a)(2)(D).
Dubitante: A concurrence “doubting” a legal point while accepting it as binding. Judge McKee concurred dubitante here.

Conclusion

The Third Circuit’s decision reaffirms a settled rule in this Circuit: Pennsylvania’s PWID statute is divisible by drug identity because the identity of the controlled substance is an element of the offense. That conclusion flows from Apprendi/Alleyne and is anchored in Abbott, Avila, Henderson, and Singh, along with Pennsylvania authority such as Swavely and the Commonwealth’s charging and jury-instruction practices. Efforts to upend this framework through Beatty or Ramsey were unavailing; those decisions do not supply the kind of clear intervening change in state law that would justify departing from Circuit precedent.

For immigration practitioners, the practical takeaway is straightforward: a Pennsylvania PWID conviction that identifies a federally controlled substance in the record of conviction will trigger removability under § 1227(a)(2)(B)(i). At the same time, the court reiterates stringent jurisdictional limits on reviewing factual credibility determinations and discretionary denials of relief.

Although a thoughtful concurring opinion underscores unresolved theoretical tensions—particularly whether schedule-based penalty groupings, rather than specific drug identities, are the operative “elements”—those concerns await clarification by Pennsylvania’s high court or an intervening controlling decision. Until then, the element-by-drug identity rule remains the operative law in the Third Circuit, shaping both immigration adjudications and federal recidivist analyses for Pennsylvania PWID offenses.