NOT RECOMMENDED FOR PUBLICATION
                                File Name: 25a0032n.06

                                         Case No. 24-3125

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                  FILED
                                                                                 Jan 24, 2025
JAVI PORTER,                                            )
                                                                        KELLY L. STEPHENS, Clerk
       Petitioner,                                      )
                                                        )
v.                                                      )        ON PETITION FOR REVIEW
                                                        )        FROM THE UNITED STATES
JAMES R. MCHENRY III, Acting Attorney                   )        BOARD OF IMMIGRATION
General,                                                )        APPEALS
       Respondent.                                      )
                                                        )                              OPINION

Before: THAPAR, NALBANDIAN, and DAVIS, Circuit Judges.

       DAVIS, Circuit Judge. The Immigration and Nationality Act (“INA”) provides that any

noncitizen who has been convicted of an aggravated felony is deportable.                   

(a)(2)(A)(iii). Aggravated felonies include “illicit trafficking in a controlled substance,” 

§ 1101(a)(43)(B), which, in turn, includes Controlled Substance Act (“CSA”) offenses that are

punishable by more than one year of imprisonment. See 

(c)(2), 3559(a)(1)–(5).

A state drug-trafficking conviction qualifies as an aggravated felony if the state law “proscribes

conduct punishable as a felony under [the CSA].” Lopez v. Gonzales, 

 (2006).

       Petitioner Javi Porter’s appeal turns on whether his Virginia drug-trafficking conviction is

an aggravated felony under the INA. Porter had been a lawful permanent resident of the United

States for roughly six years before he was convicted under Virginia law of possessing with intent

to distribute methamphetamine. The Department of Homeland Security (“DHS”) classified this
No. 24-3125, Porter v. McHenry


conviction as an aggravated felony and initiated removal proceedings against Porter, which

culminated in an order of removal. Porter seeks review of the final order of the Board of

Immigration Appeals (“BIA” or “Board”) in which the Board affirmed an immigration judge’s

(“IJ”) denial of his motion to terminate removal proceedings and found him removable as an

aggravated felon. We deny the petition for review.

                                                     I.

       Factual Background. Porter is a native and citizen of Jamaica. In January 2015, he was

admitted to the United States on an F-33 visa and granted lawful-permanent-resident status. A

little over six years later, a Virginia grand jury indicted Porter for possession of more than two

hundred grams of a mixture containing a detectable amount of methamphetamine with intent to

distribute, in violation of 

. Porter accepted a plea agreement in which

the Commonwealth agreed to strike from the indictment the language specifying the weight of the

methamphetamine. He then pleaded no contest to an amended indictment which alleged that he

“knowingly, intentionally, feloniously and unlawfully ha[d] in his possession a quantity of the

Schedule II controlled substance Methamphetamine with intent to distribute said controlled

substance” in violation of § 18.2-248. (AR 194, 211). Porter was convicted in the Circuit Court

of the City of Roanoke, Virginia. He received a sentence of five years’ imprisonment, with four

years and three months of the sentence suspended and probation during the first two years of the

suspended portion of the sentence.

       Procedural Background. After this Virginia conviction, DHS issued a Notice to Appear

(“NTA”),    charging   Porter   as   removable    under   INA    § 237(a)(2)(A)(iii);   

(a)(2)(A)(iii), because he was “convicted of an aggravated felony as defined in section

101(a)(43)(B) of the Act, a law relating to drug trafficking.” (AR 265). Porter moved to terminate


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No. 24-3125, Porter v. McHenry


the removal proceedings under 

(b) and § 1003.1(d)(1)(ii), arguing that the

government could not show by clear and convincing evidence that his Virginia crime constituted

an aggravated felony under the INA. DHS responded in opposition to the motion to terminate and,

on the same day, served Porter’s counsel with a Form I-261 adding a charge of removability under

INA § 237(a)(2)(B)(i); 

(a)(2)(B)(i) for having a conviction for a controlled

substance offense.

        The IJ’s Decision. An IJ denied Porter’s motion to terminate in a written order in which

she concluded that DHS had met its “burden of proving that [Porter] was convicted of an

aggravated felony by clear and convincing evidence.” (AR 165). In the same order, the IJ

sustained the charge of removability against Porter. (Id.) And the IJ denied Porter’s subsequent

motion for reconsideration. In the months that followed, the IJ held a removal hearing and issued

an oral decision, finding Porter removable as charged in both the NTA and the Form I-261 and

incorporating her prior written order which denied his motion to terminate removal proceedings.

The IJ followed up with a June 29, 2023, final summary order finding Porter removable as charged

in the NTA. The order also noted that Porter did not apply for relief from removal under 

 and ordered Porter removed to Jamaica. Porter timely appealed to the BIA, arguing that

the IJ erroneously denied his motion to terminate removal proceedings.1

        The BIA’s Decision. Applying de novo review and following guidance from Descamps v.

United States, 

 (2013), the BIA affirmed the IJ’s decision and ordered Porter

removed to Jamaica. Citing its decision in Matter of Dingus, 

 (BIA 2022),

the BIA agreed with the IJ’s conclusion that 

 is divisible by the identity



1
 Porter also filed an interlocutory appeal from the IJ’s April 27, 2023, written order. On August 9, 2023, the Board
dismissed the appeal as moot because the IJ issued the final order of removal on June 29, 2023.

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No. 24-3125, Porter v. McHenry


of the controlled substance and applied the modified categorical approach to determine whether

Porter’s conviction was a felony offense under the CSA. Consistent with the IJ’s decision, the

BIA found that the controlled substance involved in Porter’s offense was methamphetamine. The

BIA observed that the CSA lists methamphetamine as a controlled substance in schedules II and

III and that possession with intent to distribute any schedule II or III controlled substance carries

maximum prison sentences of 20 years and 10 years, respectively, absent any aggravating factors.

Given this statutory scheme, the BIA concluded that possession with intent to distribute any

quantity of a schedule II or III controlled substance is a federal felony, regardless of weight. The

BIA rejected Porter’s argument to the contrary, noting that the five-gram threshold for

methamphetamine in 

(b)(1)(B)(viii) merely enhances the sentence; it is not a

minimum requirement for conviction. The BIA also rejected Porter’s remaining arguments as

unpersuasive.

       The BIA concluded, “possession with the intent to distribute even less than 5 grams of

methamphetamine nonetheless constitutes a federal felony.” (AR 4). Therefore, DHS established

by clear and convincing evidence that Porter’s conviction involving an undetermined amount of

methamphetamine was an aggravated felony that rendered him removable under 

(a)(2)(A)(iii). As for DHS’s additional charge of removability based on Porter’s conviction

for a controlled substance offense under § 1227(a)(2)(B)(i), the BIA concluded that it need not

reach this additional ground since it found Porter removable as an aggravated felon under

§ 1227(a)(2)(A)(iii).

                                                 II.

       We review de novo the purely legal question of whether a particular state conviction

qualifies as an aggravated felony under the INA because this conclusion depends on interpreting


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No. 24-3125, Porter v. McHenry


state and federal statutes unrelated to immigration. Saqr v. Holder, 

 (6th Cir.

2009); Tantchev v. Garland, 

, 434 (6th Cir. 2022) (“Whether a petitioner’s conviction

renders him removable under 

(a)(2)(A)(iii) is a non-discretionary, purely legal

question that this Court reviews de novo.” (cleaned up)).

                                                 III.

       On appeal, Porter reprises his argument that his Virginia drug-trafficking conviction is not

an aggravated felony for purposes of the INA because his conviction was for an undetermined

amount of methamphetamine and the CSA does not punish possession with intent to distribute an

undetermined quantity of methamphetamine as a felony.             Instead, says Porter, it punishes

possession with intent to distribute five grams or more of methamphetamine as a felony. He also

relies, in part, on this argument to assert that his Virginia conviction is not a categorical match to

a felony under the CSA. But Porter’s contention reflects a misapprehension of the CSA that

undermines his argument that 

 and 

 are a statutory

mismatch.

       As we discussed at the outset, the term “aggravated felony,” as used in the INA,

encompasses “illicit trafficking in a controlled substance (as defined in section 802 of [the CSA]),

including a drug trafficking crime (as defined in section 924(c) of title 18).”             

(a)(43)(B). Reducing this definition to the components pertinent to Porter’s appeal, the

term “controlled substance” is defined as “a drug or other substance . . . included in schedule I, II,

III, IV, or V of . . . this subchapter.” 

(6). A “drug trafficking crime” under section

924(c) means “any felony punishable under the Controlled Substances Act,” or two other statutes

not relevant here. 

(c)(2). And a “felony” is an offense for which the “maximum

term of imprisonment authorized is . . . more than one year.” 

 § 3559(a)(5).


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No. 24-3125, Porter v. McHenry


        Foundationally, we address Porter’s erroneous contention that possession with intent to

distribute “an undetermined quantity” of methamphetamine is not punishable as a felony under the

CSA. (ECF 8, Pet. Br. 23). To begin, section 841(a) of the CSA makes it unlawful “for any person

knowingly or intentionally . . . to . . . possess with intent to manufacture, distribute, or dispense, a

controlled substance.” 

(a)(1). Methamphetamine is classified as either a schedule

II or schedule III controlled substance, depending on its form. 

 § 812(c), Scheds. II(c), III(a)(3).

And absent certain aggravating factors, the penalties for violating § 841(a) include a 20-year

maximum sentence for convictions involving a schedule II controlled substance and a 10-year

maximum sentence for those involving a schedule III controlled substance. Id. § 841(b)(1)(C),

(b)(1)(E)(i). Hence, Porter’s insistence that an offense involving methamphetamine must meet the

five-gram threshold in § 841(b)(1)(B)(viii) is misplaced. This threshold merely establishes the

minimum drug amount for the next sentence category. And his assertion that “none of the relevant

federal statutes contain a provision to punish violators for possession of an undetermined quantity

of methamphetamine” is plainly wrong. (ECF 8, Pet. Br., 23). The knowing or intentional

possession with intent to distribute any amount of methamphetamine—whether in the form listed

in schedule II or III—is a felony punishable by more than one year’s imprisonment under the CSA.

        Porter, of course, was not convicted under the CSA. So we must determine whether

Porter’s specific state conviction is punishable as a felony under the CSA. In considering whether

a state conviction meets the definition of an aggravated felony under the INA, we employ the

familiar categorical approach “to determine whether the state offense is comparable to an offense

listed in the INA.” Moncrieffe v. Holder, 

 (2013). Under this approach, we do

not look to the specific facts underlying the predicate offense. 

 Instead, we examine whether

the state statute defining that offense “categorically fits within the ‘generic’ federal definition of a


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No. 24-3125, Porter v. McHenry


corresponding aggravated felony.” 

 (quoting Gonzales v. Duenas-Alvarez, 

(2007)). If the state statute at issue punishes conduct no broader than the conduct punished by a

comparable federal crime, the two offenses are categorical matches. See, e.g., Descamps, 

.

          Additionally, when the statute of conviction defines multiple offenses, it is “divisible,” and

we apply the “modified” categorical approach. Mathis v. United States, 

, 505 (2016).

Under this approach, we “look[] to a limited class of documents (for example, the indictment, jury

instructions, or plea agreement and colloquy) to determine what crime, with what elements, a

defendant was convicted of.” 

 at 505–06 (citing Shepard v. United States, 

(2005)). If the Shepard documents reveal which of the multiple offenses the defendant committed,

we then proceed with the categorical approach in the usual way—meaning, we ask whether the

state crime of conviction punishes conduct more broadly than its proposed federal equivalent. See

id. at 506. Therefore, if Porter’s Virginia drug-trafficking crime punishes no more conduct than

the generic CSA felony offense discussed above, then he is removable as an aggravated felon.

          As an initial matter, we agree with the parties and the BIA that 

is divisible by the identity of the controlled substance and that the modified categorial approach

applies. Lewis v. Commonwealth, 

, 924 (Va. Ct. App. 2022). Porter asserts,

however, that the statute is divisible not only by the identity of the controlled substance but also

by the weight of the controlled substance and the punishment. In essence, Porter asks us to

compare the Virginia statute in the abstract—and several of the crimes it encompasses—to the

CSA, to determine if the conduct Virginia punishes is broader. But that is not how we apply the

modified categorical approach. Rather, as discussed, we first identify the specific crime Porter

was convicted of and then we compare that specific state offense to the comparable CSA offense.


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No. 24-3125, Porter v. McHenry


       Turning, then, to Porter’s offense of conviction, Virginia law makes it “unlawful for any

person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or

distribute a controlled substance.” 

(A). And controlled substances

include “[a]ny substance which contains any quantity of methamphetamine, including its salts,

isomers, and salts of isomers.” 

, Sched. II(3). While 

 contains multiple subparts, which define distinct offenses, and includes sentencing

enhancements, Virginia law also defines a “general offense of possessing methamphetamine with

the intent to distribute it under Code § 18.2-248.” Lewis, 879 S.E.2d at 928; see also Mason v.

Commonwealth, 

, 229–31 (Va. Ct. App. 2015). Based on Porter’s Shepard

documents, he was convicted of this general offense.

       Porter’s Shepard documents reveal that he pleaded no contest to an amended indictment

charging that he “knowingly, intentionally, feloniously and unlawfully ha[d] in his possession a

quantity of the Schedule II controlled substance Methamphetamine with intent to distribute said

controlled substance” in violation of “Virginia Code: 18.2-248.” (AR 194, 211). The amended

indictment specified no particular drug amount, but no such specification is necessary for our

analysis of whether the Virginia law offers a categorical match to the generic crime of felony

possession with intent to distribute a controlled substance under the CSA. Like the CSA, section

18.2-248(A) makes it a crime to possess with intent to distribute any amount of methamphetamine.

Lewis, 879 S.E.2d at 928. And we know from both the indictment—which specifically alleged

that Porter acted “feloniously”—and the sentencing documents—which reveal a five-year partially

suspended sentence—that Porter’s conviction was for the felony version of the offense. See 

(C). Thus, the fact that the Virginia statute contains enhanced penalties for




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No. 24-3125, Porter v. McHenry


specific quantities of methamphetamine is of no moment; it mirrors 

(b)(1)(C),

(b)(1)(E)(i) in that regard.

        We can comfortably conclude that Porter’s conviction was for the generic Virginia offense

of possessing methamphetamine with the intent to distribute, irrespective of the weight. And

comparing the generic Virginia offense to the generic CSA felony offense discussed above, we

find that Porter’s Virginia drug-trafficking crime punishes no more conduct than the CSA does.

Moreover, as discussed, the CSA punishes Porter’s convicted conduct by more than one year’s

imprisonment. See Moncrieffe, 

. Therefore, Porter’s conviction under 

 is a categorical match to a felony offense under the CSA. And we agree with the

BIA’s conclusion that the record contains clear and convincing evidence that Porter was convicted

of an aggravated felony, subjecting him to removal under 

(a)(2)(A)(iii).

        Porter’s additional arguments to the contrary fail. First, Porter argues that his conviction

cannot be classified as a felony because he was not charged with unlawful trading or dealing in a

controlled substance, or, as he frames it elsewhere: he was not charged with the exchange of

money. But such details are not necessary to prove that his conviction was an aggravated felony.

As the BIA aptly observed, Porter is conflating the “illicit trafficking” prong of 

(a)(43)(B), which can be shown through “unlawful trading or dealing,” with the drug-

trafficking-crime clause’s separate requirements for an aggravated felony, “which requires only

correlation to a felony under the CSA.” (AR 5). “Unlawful trading or dealing” in a controlled

substance is just one way to show illicit trafficking; it is not the only way. And it is not a

requirement to show a drug trafficking crime as defined in section 924(c) of title 18. See Garcia-

Echaverria v. United States, 

, 512–13 (6th Cir. 2004) (explaining that under the

“hypothetical federal felony” approach a state drug conviction is an aggravated felony if it would


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No. 24-3125, Porter v. McHenry


be punishable as a felony under the CSA). Nor does a conviction of possession with intent to

distribute require financial remuneration; “sharing a controlled substance without compensation

satisfies the substantive offense” of possession with intent to distribute under 

(a)(1). United States v. Jackson, 

, 481 (6th Cir. 2021). As for Porter’s argument

that the Virginia statute also criminalizes personal-use amounts, our earlier conclusion that the

CSA criminalizes possession with intent to distribute any amount of methamphetamine renders

this point meaningless. Likewise, whether the Virginia statute encompasses misdemeanors is

beside the point, as Porter’s Shepard documents establish that his crime was the felony version of

the offense under Virginia law.

       Porter also renews his arguments that his conviction is not an aggravated felony because it

could have been for an imitation controlled substance and because Virginia law includes chemical

isomers not covered under federal law. Neither of these arguments help his cause. Porter’s

indictment and sentencing documents show that he was convicted of possession with intent to

distribute methamphetamine, not an imitation substance. And by failing to raise the isomers issue

before the IJ, Porter forfeited any argument based on purported differences between the chemical

isomers of methamphetamine covered by each law. See 

(d); Santos-Zacaria v.

Garland, 

 (2023); Bains v. Garland, No. 23-3208, 

, at

*5 (6th Cir. Aug. 27, 2024) (as a claims-processing rule, petitioner forfeits argument raised for the

first time on appeal to the BIA).

       Even without his forfeiture at the administrative level, before us Porter has failed to develop

this argument beyond the conclusory statement that his conviction is not an aggravated felony

because “the definition of methamphetamine under Virginia law includes chemical isomers not

covered under federal law.” (ECF 8, Pet. Br., 43). And where, as here, issues are “‘adverted to in


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No. 24-3125, Porter v. McHenry


a perfunctory manner, unaccompanied by some effort at developed argumentation,’ we consider

them forfeited.” Buetenmiller v. Macomb Cnty. Jail, 

, 946 (6th Cir. 2022) (quoting

McPherson v. Kelsey, 

, 995–96 (6th Cir. 1997)).

       Porter also reprises in passing his argument that DHS did not prove removability by clear

and convincing evidence and thus violated his due process rights. But this argument is dependent

on accepting Porter’s contention that the record does not establish that he was convicted of an

aggravated felony. And because we have concluded that the record supports the IJ’s and BIA’s

conclusions that Porter’s conviction is an aggravated felony, we find no purchase in his claim that

DHS failed its burden to present clear and convincing evidence.

       Finally, Porter raises arguments that the IJ and BIA made several other errors that warrant

remand. For instance, he asserts that the IJ erred by inadequately addressing the additional I-261

removability charge; mistakenly referring to his “admissions and concessions” as grounds for

removal; and misapplying the modified categorical approach. And he claims the BIA erred when

it deemed his chemical isomers argument waived; when it found the IJ’s error in referring to his

“admissions and concessions” harmless; and when it concluded that he was convicted of attempted

delivery of methamphetamine instead of intent to distribute. But since we conclude on de novo

review that Porter’s Virginia conviction is an aggravated felony under the INA that renders him

removable and ineligible for discretionary relief, we need not address these additional arguments.

See Moncrieffe, 

 (“The INA . . . prohibits the Attorney General from granting

discretionary relief from removal to an aggravated felon.”).

                                               IV.

       We DENY Porter’s petition for review.




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