NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 17-3806 ___________ DWAYNE BRISCOE, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A044 138 525) Immigration Judge: John B. Carle ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) October 5, 2018 Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges (Opinion filed: October 18, 2018) ___________ OPINION* ___________ PER CURIAM * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Dwayne Briscoe petitions for review of an order of the Board of Immigration Appeals (“BIA”), which affirmed an Immigration Judge’s (“IJ”) determination that he was removable for a controlled substance violation, but which vacated the IJ’s decision granting Briscoe cancellation of removal. We will deny the petition for review. I. Briscoe, a citizen of Jamaica, entered the United States in 1993 as an immigrant at the age of seven. In 2007, he pleaded guilty to possession of a controlled dangerous substance (marijuana) with the intent to distribute within 1000 feet of school property, in violation of N.J. Stat. Ann. § 2C:35-7. He was sentenced to one day in prison and three years’ probation. He also was arrested in October 2015 on a domestic violence call. In connection with that call, Briscoe’s girlfriend, with whom he has two U.S.-citizen children, stated that Briscoe had threatened her. Briscoe had a knife in his hands when police arrived, although he stated that he had taken it away from his girlfriend. His girlfriend declined to testify against him and bailed him out, and the charges were dropped. Briscoe was placed in removal proceedings in 2016 with charges under 8 U.S.C. § 1227(a)(2)(A)(iii) (alien convicted of aggravated felony) and 8 U.S.C. § 1227(a)(2)(B)(i) (alien convicted of controlled substance offense). IJ Kuyomars Q. Golparvar sustained the charges and pretermitted Briscoe’s application for cancellation of removal under 8 U.S.C. § 1229b(a), due to his aggravated felony finding. On appeal, the BIA, citing Chang-Cruz v. Att’y Gen., 659 F. App’x 114 (3d Cir. 2016) (not 2 precedential), held that the drug conviction was not an aggravated felony, and remanded to the IJ for consideration of cancellation of removal. On remand, IJ John B. Carle granted cancellation of removal, but the Government appealed, and the BIA vacated the IJ’s decision, concluding that Briscoe had “not met his burden of establishing that a grant of cancellation of removal under section 240A(a) of the Act [8 U.S.C. § 1229b(a)] is warranted in the exercise of discretion.” Briscoe, proceeding pro se, filed a timely petition for review. II. First, we address Briscoe’s argument that he is not removable. He argues here, as he did before the IJ, that his conviction involved less than 2 grams of marijuana, and that such a crime is not punishable under the Federal Controlled Substances Act (“CSA”). But whether such an offense is punishable under the CSA is ...
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