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U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office o.fthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Clz11rch. Virgi11ia 220-11

DHS LIT./York Co. Prison/YOR


3400 Concord Road
York, PA 17402

Name: RODRIGUEZ-TRINIDAD, FRANCI...

A 044-892-640

Date of this notice: 2/24/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Malphrus, Garry D.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
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Conklin, Daniel 8., Esq.


The Shagin Law Group LLC
The Inns of St. Jude
120 South Street
Harrisburg, PA 17101

'

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

FaJls Church, Virginia 20530

File: A044 892 640 - York, PA

Date:

FEB 2 4 2016

In re: FRANCISCO RODRIGUEZ-TRINIDAD

CERTIFICATION
ON BEHALF OF RESPONDENT: Daniel B. Conklin, Esquire
AMICUS CURIAE: 1 Dale L. Wilcox
Federation for American Immigration Reform
FOR THE DHS:

Brian G. McDonnell
Assistant Chief Counsel

CHARGE:
Notice: Sec.

237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)] Convicted of controlled substance violation

Lodged: Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony under section 10l(a)(43)(B) of the Act

APPLICATION: Cancellation of removal


This case is before the Board on certification by the Immigration Judge pursuant to 8 C.F.R.
1003.l(c).2 In a decision dated April 13, 2015, the Immigration Judge found the respondent, a
native and citizen of Venezuela and a lawful permanent resident, removable as charged, denied
his application for cancellation of removal pursuant to section 240A(a) of the Immigration and
Nationality Act (the "Act"), 8 U.S.C. 1229b(a), due to statutory ineligibility, and ordered the
respondent removed. The appeal will be sustained, and the record will be remanded to the
Immigration Judge for further proceedings and for the entry of a new decision.
The Board reviews an Immigration Judge's findings of fact, including credibility
determinations and the likelihood of future events, under a "clearly erroneous" standard. 8 C.F.R.
1003.l(d)(3)(i); Matter of Z-Z-0-, 26 I &N Dec. 586 (BIA 2015). We review all other issues,
1 We acknowledge with appreciation the thoughtful arguments raised in the brief submitted by
.
.
am1cus cunae.
2

We observe that after the Immigration Judge certified this matter to the Board, the respondent
also submitted a Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge.

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IN REMOVAL PROCEEDINGS

A044 892 640


including questions of law, judgment, or discretion, under a de novo standard.
1003.l(d)(3)(ii).

8 C.F.R.

Under the hypothetical federal felony test, the statute of conviction is compared to the CSA
to determine whether the conviction is punishable as a felony under the CSA, i.e., by more than
one year's imprisonment (see 18 U.S.C. 924(c)(2), 3559(a)(5)). Evanson, supra, at 289.
Furthermore, "a state [drug] offense constitutes a felony punishable under the Controlled
Substances Act only if it proscribes conduct punishable as a felony under that federal law."
Lopez v. Gonzales, 549 U.S. 47, 58 (2006). The Immigration Judge in this matter found that the
respondent's conviction was for an aggravated felony under this hypothetical federal felony
approach, and thus determined that the respondent was statutorily ineligible for cancellation of
removal under section 240A(a) of the Act. The respondent timely appealed this determination to
the Board.
There is no dispute that on January 24, 2014, the respondent was convicted following a plea
of guilty in the Court of Common Pleas of Lehigh County, Criminal Division, Commonwealth of
Pennsylvania, for the offense of possession with intent to deliver a controlled substance, to wit:
marijuana, in violation of 35 Pa. Cons. Stat. 780-113(a)(30) (I.J. at l; DHS submission dated
1/26/15, Tab C). 35 Pa. Cons. Stat. 780-113(30) prohibits the following:
Except as authorized by this act, the manufacture, delivery, or possession with
intent to manufacture or deliver, a controlled substance by a person not registered
under this act, or a practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent to deliver, a
counterfeit controlled substance.
The Third Circuit has considered this criminal statute in the immigration context previously.
In Jeune v. US Att'y Gen., 476 F.3d 199 (3d Cir. 2007), the Third Circuit addressed the discrete
issue of whether a conviction under 35 Pa. Cons. Stat. 780-113(a)(30), without any additional
facts, constituted an "aggravated felony" under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C.
1227(a)(2)(A)(iii). The Court held that because the record was silent as to the quantity of
2
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The respondent has been charged with removability pursuant to section 237(a)(2)(A)(iii) of
the Act for having been convicted of an aggravated felony as defined under section
101(a)(43)(B) of the Act, 8 U.S.C. l 10l (a)(43)(B). Under that section, an alien is removable if
he has been convicted of illicit trafficking in a controlled substance (as defined in section 102 of
the Controlled Substances Act ("CSA")), including a drug trafficking crime (as defined in
section 924(c) of title 18, United States Code). In Evanson v. US Att'y Gen., 550 F.3d 284 (3d
Cir. 2008) the United States Court of Appeals for the Third Circuit ("Third Circuit") set forth the
applicable approaches to determining whether a state drug conviction constitutes an aggravated
felony. First, "a state drug conviction constitutes an aggravated felony if (a) it would be
punishable as a felony under the federal Controlled Substances Act, or (b) it is a felony under
state law and includes an illicit trafficking element. Accordingly, we apply two independent
tests for determining whether a state drug offense constitutes an aggravated felony: the 'illicit
trafficking element' route and the 'hypothetical federal felony' route." Evanson v. US. Att JJ
Gen., supra, at 288-89 (citing Garcia v. US Att'y Gen., 462 F.3d 287, 291 (3d Cir. 2006)).

A044 892 640


marijuana involved or whether the distribution was for remuneration, the alien's state conviction
could not be categorically regarded as a felony conviction under the CSA, and was therefore not
an aggravated felony within the meaning of the Act. Jeune v. US. Att'y Gen., supra, at 205.

The Third Circuit found the situation of the alien in Jeune to be "essentially identical" to that
which they had previously considered in Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003), in
which the Court considered a similar New Jersey statute that criminalized possession of at least
1 ounce of marijuana with intent to manufacture, distribute or dispense. Jeune v. US. Att'y Gen.,
supra, at 205. The court in Wilson held that because the state statute under which Wilson pled
guilty did not contain sale for remuneration as an element, it could not determine from the state
court judgment that Wilson's conviction necessarily entailed a finding of remuneration. Thus, as
the statute of conviction potentially included the exception set forth at 21 U.S.C. 84l(b)(l)(D)
and (b)(4), a conviction under the statute could not constitute an aggravated felony under the
hypothetical felony approach.
Using a similar rationale, the Jeune court observed that the Pennsylvania statute at issue,
35 Pa. Cons. Stat. 780-113(30), did not contain remuneration as an element. In addition, the
conviction record contained no indication that Jeune was distributing marijuana for money. As
the court was bound to rely only on "what the convicting court must necessarily have found to
support the conviction," the Court found Jeune's conviction did not, on the record before them,
constitute an aggravated felony under the hypothetical federal felony route. Jeune v. US. Att 'y
Gen., supra, at 205. The Third Circuit later expressly reaffirmed its holding in Jeune in Evanson
v. US. Att 'y Gen., supra, 291-92.
We observe that, in making its mling, the Third Circuit did not address the fact that, unlike
the New Jersey statute at issue in Wilson, Pennsylvania has a separate statute containing the
"small amount of marihuana for no remuneration" exception found in the federal statutes at
21 U.S.C. 84l (b)(4). Specifically, 35 Pa. Cons. Stat. 780-113(a)(31) prohibits the
following:
Notwithstanding other subsections of this section, (i) the possession of a small
an1ount of marihuana only for personal use; (ii) the possession of a small amount
of marihuana with the intent to distribute it but not to sell it; or (iii) the
distribution of a small amount of marihuana but not for sale.

3
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Specifically, in Jeune the Third Circuit observed that the analogous federal statute to 35 Pa.
Cons. Stat. 780-113(a)(30) is 21 U.S.C. 84l (a)( l ), which provides that, except as authorized
by that subchapter, it shall be unlawful for any person knowingly or intentionally to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled
substance. However, the Court noted that 21 U.S.C. 841(b)(l)(D) and (b)(4) establish an
exception. Specifically, the exception provides that a person who violates Section 841(a) "by
distributing a small amount of marihuana for no remuneration" shall be punished under the
misdemeanor provisions of 21 U.S.C. 844. Thus, the Court found that gratuitous distribution
of an undefined "small amount" of marijuana without remuneration was not inherently a felony
under federal law.

A044 892 640


This subsection further clarifies that, for purposes of this subsection, thirty (30) grams of
rnaribuana or eight (8) grams of hashish shall be considered a small amount of marihuana.

Under the Act, a state offense is a categorical match with a generic federal offense only if a
conviction of the state offense necessarily involved facts equating to the generic federal offense,
and whether the noncitizen's actual conduct involved such facts is irrelevant. Id. Because the
court examines what the state conviction necessarily involved, not the facts underlying the case,
in determining under the categorical approach whether the conviction was for an aggravated
felony under the Act, it must presume that the conviction rested upon nothing more than the least
of the acts criminalized, and then determine whether even those acts are encompassed by the
generic federal offense. Id. However, the comi emphasized that its focus on the minimum
conduct criminalized by the state statute was not an invitation to apply legal imagination to the
state offense. Rather, there must be a "realistic probability," not a theoretical possibility, that the
state would apply its statute to conduct that falls outside the generic definition of a crime.
Moncrieffe v. Holder, supra, at 1685.
The court found that, using this categorical approach, the alien's Georgia conviction for
possession of marijuana with intent to distribute did not necessarily involve facts that
corresponded to a felony offense under the CSA, and, thus, it was not for an aggravated felony
rendering an alien deportable under the Act. Under the Georgia law in question, the fact of the
alien's conviction, standing alone, did not reveal either whether remuneration or more than a
small amount of marijuana was involved. Indeed, the court found there to be a reasonable
probability that the Georgia statute would be used to prosecute for a "small amount of marihuana
for no remuneration," observing that "we know that Georgia prosecutes this offense when a
defendant possesses only a small amount of marijuana, see, e.g., Taylor v. State, 260 Ga.App.
890, 581 S.E.2d 386, 388 (2003) (6.6 grams), and that 'distribution' does not require
remuneration." Moncrieffe v. Holder, supra, at 1686. Thus, the conviction could have
con-esponded to either a felony or a misdemeanor offense under the CSA. Accordingly, the
court found that the respondent was not removable as an aggravated felon under section
101(a)(43)(B) of the Act. However, the court observed that while most States do not have
separate stand-alone offenses for 841(b)(4) conduct, i.e., the exception for social sharing of
marijuana, fourteen States do, including Pennsylvania. Moncrieffe v. Holder, supra, at 1691
n.10. The import of having such a statutory scheme was not further discussed.
4
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Subsequent to the issuance of the Third Circuit's line of cases in Jeune and Evanson, the
Supreme Court issued Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), in which it clarified the
application of the hypothetical federal felony approach to section 101(a)(43)(B) aggravated
felony determinations. In Moncrieffe, the Supreme Court considered whether an alien's
conviction under Georgia law for possession of marijuana with intent to distribute constituted an
aggravated felony. The Court began by stating that when the Government alleges that a state
conviction qualifies as an aggravated felony under the Act, the court generally employs a
categorical approach to determine whether the state offense is comparable to an offense listed in
the Act. Moncrieffe v. Holder, supra, at 1684. Moreover, under this categorical approach, the
court looks not to the facts of the particular prior case, but instead to whether the state statute
defining the crime of conviction categorically fits within the generic federal definition of a
con-esponding aggravated felony. Id.

A044 892 640

The Pennsylvania case law on this subject is somewhat in conflict. In his decision, the
Immigration Judge cited to and discussed two Pennsylvania Superior Court decisions discussing
the interplay between 35 Pa. Stat. 780-113(a)(3 l ) and other subsections of 780-l 13(a). In
Commonwealth v. Gordon, 897 A.2d 504 (Pa. Super. Ct. 2006), the Pennsylvania Superior Court
considered the interplay of 35 Pa. Cons. Stat. 780-l 13(a)(l 6), which criminalizes
"[k]nowingly or intentionally possessing a controlled or counterfeit substance by a person not
registered under this act," and section 780-113(a)(3 l ). Although charged under both sections,
the appellant, who possessed 8.67 grams of marijuana, was ultimately convicted under 35 Pa.
Cons. Stat. 780-l 13(a)(16), which carried the greater penalty. Noting the Pennsylvania
General Assembly's intent to create a graduated system of penalties for violations of 780-113,
the court vacated the appellant's conviction under subsection (16), holding that his conduct fell
under the more specific offense of simple possession of a small amount of marijuana under
section 780-113(a)(3 l ), rather than the more general subsection (16).
More recently, in Commonwealth v. Tisdale, 100 A.3d 216 (Pa. Super. Ct. 2014) the
Pennsylvania Superior Court addressed the interplay between the more general 780-113(a)(30)
and the more specific exception contained at 780-113(a)(31). The court discussed the
"specific/general rule," which prohibits prosecution under the general provisions of the penal
code when there are applicable special provisions available. Thus, relying in part on Gordon, the
court vacated the appellant's conviction under 780-l 13(a)(30) for possession with intent to
deliver, finding that he should instead have been convicted under 780-l 13(a)(3 l ), as the record
reflected that the appellant possessed only 8.64 grams of marijuana. In so doing, the court spoke
approvingly of the Gordon court's statement that the specific/general rule had first been
announced in 1943, and had been found to be still in force at the time of a Superior Court
decision in 2002. Id. at 218-19 (citing Commonwealth v. Leber, 802 A.2d 648, 650 (Pa. Super.
Ct. 2002).
However, while the "specific/general rule" was indeed in effect at the time of Commonwealth
v. Leber, neither Gordon nor Tisdale contains any discussion of the fact that the Pennsylvania
legislature had abrogated the "specific/general rule" in Pennsylvania by statute in December
2002. Specifically, in that year Pennsylvania adopted 42 Pa. Cons. Stat. 9303, which states as
follows:
Notwithstanding the provisions of 1 Pa.C.S. 1933 (relating to particular controls
general) or any other statute to the contrary, where the same conduct of a
defendant violates more than one criminal statute, the defendant may be
prosecuted under all available statutory criminal provisions without regard to the
generality or specificity of the statutes.
5
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The Third Circuit has yet to address in a precedent the continuing viability of its decision in
Jeune. It is clear, however, that the Jeune decision is, in light of the Supreme Court's later
decision in Moncrieffe, incomplete, as it does not address whether there is a "realistic
probability" that 35 Pa. Cons. Stat. 780-113(a)(30) would be used to punish conduct that is not
punishable as a felony under the CSA. Accordingly, in order to assess the respondent's
removability as an aggravated felon, we will endeavor to do so here.

A044 892 640

In any case, we observe that there is significant Pennsylvania case law which would tend to
show that there is indeed a "reasonable probability" that 780-113(a)(30) would be used to
prosecute conduct squarely falling under the 780-113(a)(31) personal use exception. For
instance, in Commonwealth v. Pagan, 461 A.2d 321 (Pa. Super. Ct. 1983), the Pennsylvania
Superior Court addressed a situation where the alien was charged with possession of a controlled
substance under 35 Pa. Cons. Stat. 780-113(a)(16) and, as in the case now before the Board,
possession with intent to deliver a controlled substance under 35 Pa. Cons. Stat. 780-113(30).
As in our case, the appellant argued that it was error for the state to charge him under 780113(30), as, based on his conduct, he should more properly have been charged under 780113(31). The court rejected this argument, stating that:
While it may have been appropriate to charge appellant under that subsection, we
cannot say that the verdict was unlawful simply because he was instead charged
under 35 P.S. 780-113(a)(16) and 780-113(30). There is nothing in The
Controlled Substance, Drug, Device and Cosmetic Act which requires that an
accused be prosecuted under any particular subsection of the Act based upon the
amount of controlled substances he or she is alleged to possess. Rather, an
accused can be charged with, and prosecuted for, any offense which the
Commonwealth thinks it can prove.
Pagan at 322 n.1 (emphasis added).
As such, there is conflicting Pennsylvania case law as to whether there is a "reasonable
probability" that 780-113(a)(30) would be used to prosecute conduct squarely falling under the
780-113(a)(31) personal use exception. However, we observe that, subsequent to the
Immigration Judge's decision in this case, and indeed subsequent to our request for supplemental
briefing on the issue, the Third Circuit issued a decision in which it considered the precise issue
before us, i.e., the continuing applicability of Jeune post-lvfoncrieffe. Walker v. US Att 'y Gen., - Fed.Appx. -- 2015 WL 4910984 (3d Cir. Aug. 18, 2015). While this decision is unpublished,
we nevertheless find it instructive, as it is the only Third Circuit case to address the issue before
us after Moncrieffe. As in the case before us, the alien was convicted under Pa. Cons. Stat.
780-l 13(a)(30), and an Immigration Judge found that this crime qualified as an "aggravated
felony" under 8 U.S.C. l 10l(a)(43)(B) of the Act. The Board dismissed the respondent's
appeal, and the respondent then appealed this deten11ination to the Third Circuit. Before the

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Numerous Pennsylvania court decisions since the enactment of this prov1s10n have
reaffirmed that this statute abrogated the prior "specific/general rule" in Pennsylvania, and that
any prior cases holding to the contrary are no longer good law. See, e.g., Commonwealth v.
Nypaver, 69 A.3d 708, 714 (Pa. Super. Ct. 2013) (holding that "the enactment of 42 Pa.C.S.
9303 has halted operation of [the] 'general-specific' rule of statutory construction in the context
of criminal prosecutions, and those cases, which applied that concept as a basis for their
holdings, are no longer precedential"); Commonwealth v. Estman, 591 Pa. 116, 915 A.2d 1191
(2007) (Pennsylvania Supreme Court case recognizing that 9303 superseded its prior decision
relying on the general-specific doctrine). It is, at best, unclear how courts in Pennsylvania would
now resolve the apparent conflict between Gordon and Tisdale and cases such as Nypaver and
Estman.

A044 892 640


Third Circuit, the government argued that because Pennsylvania has a different statute that
punishes possession with intent to distribute a small amount of marijuana for no remuneration,
i.e., 3 5 Pa. Cons. Stat. Ann. 780- 1 13 (a)(3 1 ), and because Walker was not convicted under that
section, he must not have been convicted of distributing a small amount of marijuana for no
remuneration. The Court rejected this argument, holding as follows:

The Immigration Judge in the matter before us, relying on Gordon and Tisdale, found that, a
conviction under the more general provision, 780- 1 1 3(a)(30), for conduct that would be
covered by the more specific provisions of 780- 1 1 3(a)(3 1 ) would be invalid under
Pennsylvania law. He thus concluded that "a conviction under subsection (30), by definition,
cannot involve the possession of a small amount of marijuana with the intent to distribute it but
not to sell it, or the distribution of a small amount of marijuana for no remuneration" (I.J. at 5).
Therefore, he concluded that, based on the cases he detailed and basic rules of statutory
construction, "it must be concluded that where an individual is found to have distributed or
delivered [a] small amount of marijuana for no remuneration, he cannot be convicted under
section 780- 1 1 3(a)(30) as his conduct would violate the more specific section 780- 1 1 3 (a)(3 1).
As such, a conviction under the more general 780- 1 1 3(a)(30) would necessarily fall outside the
exception in 2 1 U.S.C. 84l (b)(4), and therefore would be punishable as a felony under federal
law, thus rendering it an aggravated felony under section 101 (a)(43)(B) of the INA" (I.J. at 5).
Accordingly, despite the Third Circuit's pre-Moncrieffe decision in Jeune, he concluded that
the respondent's conviction under 780-1 1 3 (a)(30) was an aggravated felony. This
interpretation has some force, given the Pennsylvania cases discussed by the Immigration Judge,
as well as the potential implications of the Supreme Court's comments in footnote 1 0 of
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Attractive as the Government's argument sounds, it wilts on inspection. We have


held more than once that "distributing a small amount of marijuana for no
remuneration could be prosecuted under" 35 Pa. Cons. Stat. Ann. 780l 13(a)(30). Evanson, 550 F.3d at 289; see also Jeune v. US. Att'y Gen. , supra, at
1 99, 205 (3d Cir. 2007). Moreover, as Walker correctly argues in his opening
brief (making a point to which the Government does not meaningfully respond),
Pennsylvania's Superior Court has affirmed a conviction of possession of
marijuana under 35 Pa. Cons. Stat. Ann. 780- 1 1 3(a)(l 6) - a felony - when the
amount was small enough that the defendant could have been charged under
780- 1 1 3 (a)(3 l ), a misdemeanor covering possession of less than thirty grams of
marijuana. The Superior Court reasoned that "[t]here is nothing in The
Controlled Substance, Drug, Device and Cosmetic Act which requires that an
accused be prosecuted under any particular subsection of the Act based upon the
amount of controlled substances he or she is alleged to possess. Rather, an
accused can be charged with, and prosecuted for, any offense which the
Commonwealth thinks it can prove." Com. v. Pagan, 3 1 5 Pa.Super. 7, 461 A.2d
321, 322 n. 1 (Pa.Super. 1983). Just so here. It is thus "a realistic probability, not
a theoretical possibility, that the State would apply [35 Pa. Cons.Stat. Ann. 7801 1 3(a)(30) ] to conduct that falls outside" the definition of an aggravated felony.
Moncrieffe v. Holder, supra, at 1685. As such, we cannot say that Walker was
convicted of an aggravated felony, and we must grant the petition for review.

A044 892 640

Moncrieffe. However, upon consideration of all aspects of this case, on de novo review we
disagree with the Immigration Judge's determination, and will reverse it.

We note that during proceedings below the respondent admitted all of the allegations
contained in the Notice to Appear, and the Immigration Judge then sustained the charge of
removability under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. 1227(a)(2)(B)(i), pertaining to
a controlled substance violation. On appeal, the respondent does not contest this aspect of the
Immigration Judge's decision. However, as this ground of removability does not statutorily
preclude cancellation of removal, we will remand this matter to the Immigration Judge for
consideration of this form of relief, and any other relief for which the respondent is eligible and
wishes to pursue.
Accordingly, the following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

l f

FOR THE BOARD

"

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Notably, the Immigration Judge's decision in this case does not reflect any consideration of
the Pennsylvania cases that hold that a person may be charged and convicted under 780113(a)(30) even when his conduct falls within the "exception" set forth at 780-113(a)(3 l). See,
e.g., Commonwealth v. Pagan, supra. In addition, it does not address the continued viability of
Gordon and Tisdale in light of Pennsylvania's abrogation by statute of the "specific/general rule"
in December 2002. See, e.g., Commonwealth v. Nypaver, supra. Finally, of necessity, the
Immigration Judge's decision also did not benefit from the Third Circuit's very recent decision
in Walker v. U.S Att 'y Gen, which, while unpublished, supports a finding of the continued
applicability of Jeune to 780-113(a)(30) convictions subsequent to the Supreme Court's
Moncrieffe decision. Given all of these factors, we cannot agree with the Immigration Judge that
the respondent's conviction under 780-l 13(a)(30) necessarily excludes punishing conduct that
would fall under the "exception" set forth at 780-l 13(a)(3 l). On the contrary, we conclude
that there is a "realistic probability" that the Commonwealth of Pennsylvania would apply its
statute to conduct that falls outside the generic definition of a drug trafficking aggravated felony,
and that the Immigration Judge's decision tci the contrary must be reversed.