Cruz-Chang was convicted of a drug offense. The government argued that the conviction was an aggravated felony, but the Immigration Judge disagreed, and granted Cruz-Chang cancellation of removal. The government appealed, and while on appeal. requested remand based on a transcript from the criminal proceedings that it alleged showed Cruz-Chang was convicted of an aggravated felony. The Board of Immigration Appeals (BIA) granted remand, and on remand, the court reversed, and denied cancellation on the basis of an aggravated felony conviction. Cruz-Chang appealed, and the BIA affirmed. Cruz-Chang appealed to the Third Circuit, who remanded at the Government's request, to determine what impact that the Supreme Court's decision in Descamps. On remand, the Government argued that Descamps had no impact on the case, and the BIA affirmed. Cruz-Chang again appealed to the Third Circuit.
The court first determined that the statute of conviction - which criminalized distribution and dispensing a controlled substance - necessarily involved a trafficking element, because it was not clear if distribution and dispensing were alternative means or alternative elements of the offense. Given this ambiguity, the Court concluded that the certainty required by the Supreme Court's recent conviction in Mathis was not present with respect to the issue of the aggravated felony. As such, Cruz-Chang is eligible for cancellation of removal.
The court also scolded the Government for what it perceived as its waste of judicial resources. "In closing, we note our expectation that on remand and in future cases the Government will refrain from engaging in the problematic conduct that has marked its performance here. The last time this case was before us, the Justice Department requested and we granted a remand to the BIA for the limited purpose of the BIA considering what effect, if any, Descamps has on this immigration case. Once back before the BIA, however, the Government asserted that Descamps was inapplicable and instead proceeded to argue that the plea transcript was relevant to whether Chang-Cruz should receive discretionary relief, along with an inadequate explanation for why it failed to obtain that plea transcript before the IJ rendered her initial decision cancelling Chang-Cruz’s removal. These were issues well outside the scope of our remand. Most troubling, however, is the Government’s resort before the BIA to a frivolous argument that Chang-Cruz engaged in 'obstructionism' by opposing the Government’s remand to the IJ to consider the plea transcript. It comports with neither the professionalism nor the ethical mandates of Government counsel to chill vigorous advocacy by asserting that an alien who avails himself of the congressionally prescribed opportunity to seek cancellation of removal thereby loses the privilege of cancellation. We trust that this was an unfortunate mistake that will not be repeated."
The full text of Cruz-Chang v. Attorney General can be found here: