NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-2409 ___________

KEVIN ANTHONY MARSH, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A060-010-154) Immigration Judge: Pallavi Shirole ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) January 5, 2023

Before: HARDIMAN, PORTER, and FREEMAN, Circuit Judges

(Opinion filed: February 14, 2023)

___________

OPINION* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Kevin Marsh petitions for review of his final order of removal. We stayed his

petition pending his pursuit of a motion for reconsideration before the Board of

Immigration Appeals (“BIA”). The Government has filed a motion to lift the stay

because the BIA has since denied reconsideration. We grant that motion and will dismiss

in part and deny in remaining part Marsh’s petition for review.

I.

Marsh is a citizen of Jamaica who was admitted to the United States as a lawful

permanent resident in 2008. In 2019, he was convicted of possessing with the intent to

distribute between five and 25 pounds of marijuana in violation of N.J. Stat. Ann.

§§ 2C:35-5(a)(1) and 2C:35-5(b)(10)(b). The Government charged him as removable on

the grounds that his conviction (1) was for an offense “relating to” a controlled substance,

see

(a)(2)(B)(i), and (2) was an “illicit trafficking” aggravated felony, see

(a)(43)(B), 1227(a)(2)(A)(iii).

Marsh, through counsel, conceded the conviction but denied the charges and filed

a motion to terminate his proceeding on the ground that his conviction does not render

him removable. He did not apply for any other relief from removal. An Immigration

Judge (“IJ”) denied Marsh’s motion and ordered his removal to Jamaica. Marsh appealed

through counsel to the BIA, which affirmed. Marsh filed a petition for review of that

ruling. He also filed a motion for reconsideration with the BIA in which he raised a new

2 legal argument. The BIA denied his motion for reconsideration on August 24, 2022, but

Marsh has not filed a petition for review of that ruling.

II.

Marsh asks us to decide the issue that he raised before the BIA in his motion for

reconsideration and that the BIA later rejected. In that motion, Marsh argued for the first

time that his notice to appear did not include the time and date of his hearing as required

by

(a)(1)(G)(i). He further argued that the BIA should terminate his

proceeding for that reason because this defect either deprived the IJ of jurisdiction or

violated claims-processing rules. The Government argues that we should dismiss

Marsh’s petition for review to this extent. We agree.

If this issue were truly jurisdictional, then we might have been obliged to decide it

before reaching the merits. See Perez-Sanchez v. Att’y Gen.,

(11th

Cir. 2019). But as we have since clarified, § 1229(a) “is akin to a claims-processing

rule.” Chavez-Chilel v. Att’y Gen.,

(3d Cir. 2021) (citing Perez-

Sanchez,

). Thus, Marsh’s argument is subject to the exhaustion

requirement, see Perez-Sanchez,

, which is itself jurisdictional, see

Nkomo v. Att’y Gen.,

(3d Cir. 2021).

Marsh did not exhaust this issue as part of the proceeding giving rise to the order

of removal that he challenges in this petition for review. Instead, Marsh later raised this

issue in his motion to reconsider before the BIA and the BIA later denied it. The BIA’s

3 denial of reconsideration is a separate final order that requires a separate petition for

review. See Stone v. INS,

(1995); Castro v. Att’y Gen.,

(3d Cir. 2012). But Marsh has not filed a separate petition for review.1

And Marsh’s previously-filed petition for review is not effective to challenge the BIA’s

subsequent denial of reconsideration under the circumstances presented here. Cf.

Marshall v. Comm’r Pa. Dep’t of Corr.,

, 96-97 & n.2 (3d Cir. 2016) (per

curiam) (discussing, inter alia, Khan v. Attorney General,

(3d Cir. 2012)).

Thus, we lack jurisdiction to consider this argument and will dismiss the petition

for review to that extent. We nevertheless note that errors of the kind that Marsh alleges

can be harmless and that Marsh has not raised anything suggesting that he was

prejudiced. See Chavez-Chilel,

.

III.

Turning to the merits, Marsh argues that the BIA erred in concluding that his

conviction under N.J. Stat. Ann. §§ 2C:35-5(a)(1) and 2C:35-5(b)(10)(b) relates to a

controlled substance and is an aggravated felony. In reaching its conclusions, the BIA

acknowledged that the New Jersey statute does not categorically match its federal

counterpart because New Jersey controls more substances. But the BIA held that

1 The only document that Marsh has filed with this Court since the BIA denied reconsideration is a letter pursuant to Fed. R. App. P. 28(j). Marsh filed that document beyond the 30-day period for filing a petition for review, see

(b)(1), and that document does not mention this issue or the BIA’s denial of reconsideration in any

4 Marsh’s conviction nevertheless relates to a controlled substance because (1) the New

Jersey statute is divisible as to drug type, (2) drug type thus can be determined by using

the modified categorical approach and looking to Marsh’s conviction documents,

(3) those documents reveal that the drug was marijuana, and (4) marijuana is federally

controlled. The BIA also held that Marsh’s marijuana conviction is punishable as a

federal drug felony and therefore constitutes an aggravated felony.

Marsh’s only challenge to these rulings is that the BIA erred at the first of these

steps in holding that the New Jersey statute is divisible as to drug type. We disagree. A

statute is divisible if it lists alternative elements that define separate crimes but not if it

lists separate factual means of committing a single crime. See Mathis v. United States,

(2016). “If statutory alternatives carry different punishments,

then under Apprendi [v. New Jersey,

(2000)] they must be elements.”

.

We have not addressed in a precedential opinion whether N.J. Stat. Ann. § 2C:35-

5 is divisible as to drug type. Cf. Martinez v. Att’y Gen.,

(3d Cir.

2018) (noting petitioner’s concession that the statute is divisible). But we have held that

Pennsylvania’s analogous statute is. See United States v. Abbott,

(3d Cir. 2014) (addressing 35 Pa. Stat. Ann. § 780-113(a)(30)); see also Hillocks v. Att’y

Gen.,

(3d Cir. 2019) (summarizing Abbott). We reasoned that,

event. Marsh’s Rule 28(j) letter is addressed later in this opinion. 5 although the Pennsylvania statute criminalizes “the manufacture, delivery, or possession

with intent to manufacture or deliver, a controlled substance” generally, Abbott,

, “the type of controlled substance involved in a violation of [the statute] alters the

prescribed range of penalties. Accordingly, the type of drug, insofar as it increases the

possible range of penalties, is an element of the crime. Because [the statute] can be

violated by the possession of and intent to distribute many different drugs, the types of

which can increase the prescribed range of penalties, the statute includes several

alternative elements and is therefore divisible.”

.

As the BIA held, the same is true of the New Jersey statute at issue here. The

statute begins by criminalizing possession of any controlled substance, see N.J. Stat. Ann.

§ 2C:35-5(a)(1), but it goes on to prescribe different penalty ranges depending on the

type and quantity of the substance involved. See N.J. Stat. Ann. § 2C:35-5(b); see also

N.J. Stat. Ann. § 2C:43-6 (prescribing different penalty ranges for different degrees of

offenses). Because the different controlled substances “carry different punishments, then

under Apprendi they must be elements.” Mathis,

.

Marsh does not acknowledge Abbott or this reasoning. Instead, he argues that

certain state-court decisions indicate that the statute is not divisible as to drug type. See

State v. Torres,

(N.J. Super. Ct. App. Div. 1989); see also State v.

Moore,

(N.J. Super. Ct. App. Div. 1997) (summarizing Torres);

State v. Edwards,

(N.J. Super. Ct. App. Div. 1992) (same). In

6 Torres, the court stated that “the quantity and quality [of controlled substances] are not

elements of the [§ 2C:35-5] offense and, therefore, the State need not prove and the jury

need not find that the defendant knew the quantity or the quality of the controlled

dangerous substances involved.” Torres,

(emphasis added).

But Torres preceded Apprendi and does not appear to have used the word

“element” in the sense in which Mathis used it for purposes of the categorical approach.

That point is confirmed by the preceding discussion in Torres, in which the court stated

that “the jury must find beyond a reasonable doubt the existence of critical facts required

to elevate the degree or gradation of crime.”

. Thus, the court continued, “we

hold that in prosecutions under N.J.S.A. 2C:35-5 the jury must find that defendant

manufactured, distributed, dispensed or possessed the relevant quantity or quality of

[controlled dangerous substances] by proof beyond a reasonable doubt.”

.

In sum, Torres holds that a jury must find beyond a reasonable doubt the type and

quantity of drug involved in a § 2C:35-5 offense because the type and quantity “alters the

prescribed range of penalties.” Abbott,

. Thus, drug type is an element of

the § 2C:35-5 offense for purposes of determining divisibility under the categorical

approach. See id.; see also In re Laguerre,

(BIA 2022) (holding

that the references to “elements” in Torres and Edwards do not resolve the divisibility of

N.J. Stat. Ann. § 2C:35-10 because, inter alia, “those State decisions did not give the term

‘elements’ the precise meaning and significance the Supreme Court did in Mathis”); State

7 v. Florez,

(N.J. 1994) (holding that drug quantity is an element of

§ 2C:35-5).

IV.

For these reasons, we will dismiss Marsh’s petition to the extent that he seeks

relief on the basis of his allegedly defective notice to appear and will otherwise deny his

petition.2

2 Marsh raises a new argument for the first time in his Rule 28(j) letter. He argues that his marijuana conviction cannot constitute a removable offense because, at the time of his conviction, New Jersey’s definition of marijuana included more forms of hemp than federal law. But see United States v. Lewis, --- F.4th ---,

(3d Cir. Jan. 26, 2023). We lack jurisdiction to consider this argument because Marsh did not exhaust it by raising it before the BIA. We express no opinion on whether Marsh could properly raise this issue in a motion for reconsideration or reopening before the BIA.

8