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CA3 on Divisibility: Pesikan v. Atty. Gen.

September 26, 2023 (1 min read)

Pesikan v. Atty. Gen.

"Petitioner Srecko Pesikan argues that the Board of Immigration Appeals (“BIA”) erred in concluding that his 2018 Pennsylvania conviction for driving under the influence (“DUI”) of marijuana constituted an offense involving a “controlled substance,” as defined in the federal Controlled Substances Act (“CSA”), thereby rendering him removable under the Immigration and Nationality Act of 1952, 8 U.S.C. § 1227(a) (“INA”). We agree and will grant his petition for review. ... In sum, because the identity of the specific controlled substance is not an element of the Pennsylvania DUI statute, the state statute of conviction is indivisible and cannot serve as the basis for Pesikan’s removal under the INA. ... For the foregoing reasons, we will grant Pesikan’s Petition for Review in case number 21-1262 and will reverse the order for removal."

[Hats way off to appointed pro bono counsel Bruce Merenstein, Arleigh Helfer and Stephen Fogdall (argued)!  Here is a link to the audio of the oral argument.]

- Stephen A. Fogdall