BIA on Elements, Categorical Approach: Matter of German Santos

Matter of German Santos, 28 I&N Dec. 552 (BIA 2022)

(1) Any fact that establishes or increases the permissible range of punishment for a criminal offense is an “element” for purposes of the categorical approach, even if the term “element” is defined differently under State law. Matter of Laguerre, 28 I&N Dec. 437 (BIA 2022), followed.

(2) Title 35, section 780-113(a)(30) of the Pennsylvania Consolidated Statutes, which punishes possession with intent to deliver a controlled substance, is divisible with respect to the identity of the controlled substance possessed, and the respondent’s conviction under this statute is one for a controlled substance violation under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2018), under the modified categorical approach.

"An Immigration Judge found the respondent removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(B)(i) (2018), based on a Pennsylvania conviction for possession with intent to deliver a controlled substance. The respondent contends that under State law the identity of the controlled substance is a “grading factor” for sentencing rather than an element of the offense. Regardless of the State’s classification, any fact that establishes or increases the permissible range of punishment is an element of the offense for Federal purposes. Here, the identity of the controlled substance establishes the permissible range of punishment and is therefore an element of the offense. The statute of conviction is therefore divisible and the respondent was properly found removable. We affirm the Immigration Judge’s denial of cancellation of removal and will dismiss the respondent’s appeal."