Jersey City, New Jersey – ­On October 4, 2019, the Third Circuit Court of Appeals decided U.S. v. Portanova. Though this case was an appeal of a criminal sentencing, the court’s holding has the potential to affect immigration law because the court’s analysis through the categorical approach is applied the same in criminal proceedings as in immigration proceedings.

Michael Portanova pled guilty to receiving child pornography in the federal District Court. The trial court enhanced his sentence based on his prior conviction for possessing and distributing child pornography in Pennsylvania state court. The issue before the court was whether the state court conviction could support the sentencing enhancement. A prior conviction in state court may enhance a sentence in federal court if the elements are the same as, or narrower than, the federal equivalent. In order for the conviction to support the sentencing enhancement, the court had to determine if the state conviction “related to” child pornography under federal law. To do this, the court applied the “looser categorical approach” rather than the strict categorical approach and concluded the “related to” language does not require an exact match of elements as the strict categorical approach requires. Statutes are “related” if they “both target the same core criminal conduct such that they are directly analogous.”

The most common appearance of “related to” in the immigration context is removability based on a crime related to controlled substances. The seminal case addressing “related to” in the immigration context is Mellouli v. Lynch, 135 S.Ct. 1980 (2015). In Mellouli, the Supreme Court held a Kansas drug statute did not relate to controlled substances under federal law because the Kansas statute penalized conduct the federal statute does not. In reaching that conclusion, the Supreme court applied the strict categorical approach.

For non-citizens who potentially will have to litigate whether their state convictions related to controlled substances, child endangerment or a different context of “related to,” the Third Circuit’s conclusion here expands the number of state statutes that will relate to a federal counterpart. While the Third Circuit limited its holding in a footnote by noting the grammatical differences between the Kansas statute and the Pennsylvania statute, this decision certainly give the Department of Homeland Security an argument it did not previously have.

However, it should be noted the Third Circuit also narrowed its decision by distinguishing it from an earlier decision in Salmoran v. Attorney General, 909 F.3d 75 (3rd Cir 2018), in which the court found a New Jersey child pornography statute was not an aggravated felony under immigration law because the strict categorical approach applied and the New Jersey statue was not an elemental match to the federal equivalent.

So what does this decision mean for respondents in immigration court? It could mean nothing; it could mean additional litigation before reaching the conclusion of proceedings, or it could mean that many more state offenses will be considered problematic under immigration law when they previously were not. The consequences of this decision will take time to reveal themselves based on what arguments, if any, the Department of Homeland Security makes in immigration court.

If you need help with an immigration case please contact

Eric Mark Law Office

69 Montgomery Street, Unit 3956
Jersey City, NJ 07302
Phone: (201) 713-2227

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