LAGUERRE

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Matter of Emmanuel LAGUERRE, Respondent
Decided January 20, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Because the identity of the “controlled dangerous substance” possessed is an element of
the crime of possession of a controlled dangerous substance under section 2C:35-10(a)(1)
of the New Jersey Statutes Annotated, the statute is divisible with respect to the specific
substance possessed, and the record of conviction can be examined under the modified
categorical approach to determine whether that substance is a controlled substance under
Federal law.
FOR RESPONDENT: Timothy R. Block, Esquire, Edison, New Jersey
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kyle T. Simpson, Associate
Legal Advisor
BEFORE: 	Board Panel: 	WILSON and GORMAN, Appellate Immigration Judges.
Concurring Opinion: O’CONNOR, Appellate Immigration Judge.
GORMAN, Appellate Immigration Judge:
In a decision dated August 10, 2020, an Immigration Judge granted the
respondent’s motions to terminate his removal proceedings. The Department
of Homeland Security (“DHS”) has appealed from this decision. 1 The DHS’s
appeal will be sustained, the removal proceedings will be reinstated, and the
record will be remanded to the Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Haiti who was admitted to the
United States as a lawful permanent resident. 	On March 8, 2007, the
respondent was convicted of possession of a controlled dangerous substance
in violation of section 2C:35-10(a)(1) of the New Jersey Statutes Annotated.
Based on this conviction, the DHS charged him with removability under
section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(B)(i) (2018), as a respondent convicted of a violation of a State
1 	The Board heard oral argument in this case and the parties submitted supplemental
briefing. We acknowledge with appreciation the briefs and oral arguments prepared by the
representatives of both parties.

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law “relating to a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)).” The respondent filed a motion
to terminate proceedings, arguing that the DHS could not demonstrate by
clear 	and 	convincing 	evidence 	that 	his 	offense 	involved 	a 	controlled
substance 	under 	Federal 	law. 	The 	DHS 	filed 	an 	opposition 	to 	the
respondent’s motion to terminate and, based on the respondent’s conviction
for stalking, lodged an additional charge of removability under section
237(a)(2)(E)(i) of the Act, as a respondent convicted of a crime of stalking.
The respondent subsequently filed a motion to terminate with respect to this
additional charge of removability. 	The Immigration Judge found the
respondent 	was 	not 	removable 	under 	either 	charge 	and 	granted 	the
respondent’s motions to terminate.
On appeal, the DHS challenges the Immigration Judge’s decision to
terminate 	proceedings, 	arguing 	that 	the 	respondent’s 	conviction 	for
possession of a controlled dangerous substance in violation of section
2C:35-10(a)(1) of the New Jersey Statutes Annotated is a conviction for
a controlled substance violation that renders him removable as charged under
section 	237(a)(2)(B)(ai) 	of 	the 	Act. 2 	Whether 	the 	respondent’s 	drug
conviction renders him removable as charged is a legal question we review
de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2021).
II. ANALYSIS
To determine whether the respondent’s New Jersey drug offense renders
him removable, we employ the categorical approach to determine whether
the elements of his New Jersey statute of conviction match those of the
generic definition of an offense relating to a controlled substance set forth at
section 237(a)(2)(B)(i) of the Act. Moncrieffe v. Holder, 569 U.S. 184, 190
(2013). 	To categorically match this generic definition, the respondent’s
conviction must have necessarily involved, as an element, a substance listed
under the Federal Controlled Substances Act. 	See Mellouli v. Lynch, 575
U.S. 798, 813 (2015); Matter of P-B-B-, 28 I&N Dec. 43, 45–46 (BIA 2020).
However, if the respondent’s State statute of conviction is categorically
overbroad, we must consider whether it is divisible—that is, whether it “sets
out one or more elements of the offense in the alternative.” 	Descamps
v. United States, 570 U.S. 254, 257 (2013). If the statute is divisible, we may
employ a modified categorical approach, which permits us to examine the
respondent’s record of conviction to determine “what crime, with what
2 	The DHS does not appeal the Immigration Judge’s determination that the respondent is
not removable under section 237(a)(2)(E)(i) of the Act.

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elements, [he] was convicted of.” Mathis v. United States, 136 S. Ct. 2243,
2249 (2016).
At all relevant times, section 2C:35-10(a) provided, in relevant part, as
follows:
It is unlawful for any person, knowingly or purposely, to obtain, or to possess,
actually or constructively, a controlled dangerous substance or controlled substance
analog . . . . Any person who violates this section with respect to:
(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III
or IV other than those specifically covered in this section, is guilty of a crime of
the third degree . . . .
The parties do not dispute the Immigration Judge’s determination that the
New Jersey schedules include dextrorphan, while the Federal schedules do
not. 	Because there is a mismatch between the controlled substances in the
New Jersey and Federal schedules, the dispositive issue in this case is
whether the identity of the controlled dangerous substance involved in a
violation of section 2C:35-10(a)(1) is an “element,” rendering the statute
divisible and susceptible to a modified categorical inquiry, or merely an
alternative “means” of violating the statute. 	Mathis, 136 S. Ct. at 2253
(distinguishing between statutory “elements” and the “alternative means of
fulfilling one (or more)” of those elements). 3
“‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the
things the ‘prosecution must prove to sustain a conviction.’” 	Id. at 2248
(citation omitted). “At a trial, [elements] are what the jury must find beyond
a reasonable doubt to convict the defendant,” and “at a plea hearing, they are
what the defendant necessarily admits when he pleads guilty.” Id. However,
“means” merely “spell[] out various factual ways of committing some
component of the offense,” which a jury is not required to find and
a defendant is not required to admit. Id. at 2249. In other words, “elements”
must be “necessarily found” by a jury or “necessarily admitted” to by
a defendant, whereas “means” or “non-elemental fact[s]” are “not necessary
to support a conviction.” Id. at 2255 (citations omitted).
In Mathis, the Supreme Court set forth three inquires for determining
whether items listed in an alternatively phrased statute are “elements” or
“means.” First, the Court instructed adjudicators to ascertain whether there
3 	We 	note 	that 	these 	“elements” 	versus 	“means” inquiries 	can 	be 	exceedingly
complicated, and we must make them in an increasing number of cases, both in published
decisions, see, e.g., Matter of Dikhtyar, 28 I&N Dec. 214, 216–17 (BIA 2021); Matter of
P-B-B-, 28 I&N Dec. at 46–47; Matter of Gonzalez Lemus, 27 I&N Dec. 612, 613 (BIA
2019); Matter of Chairez, 27 I&N Dec. 21, 23 (BIA 2017), and in scores of unpublished
decisions.

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is a State court decision that “definitively answers the question.” Id. at 2256.
Second, the Court instructed adjudicators to determine if the “statute on its
face” resolves the issue. 	Id. 	Lastly, “if state law fails to provide clear
answers,” the Court instructed adjudicators to “peek” at the record of
conviction, including the “indictment and correlative jury instructions.” Id.
at 2256–57. If the conviction record “reference[s] one alternative term to the
exclusion of all others,” that supports a determination that the “statute
contains a list of elements, each one of which goes toward a separate crime.”
Id. at 2257.
A. State Case Law
Relying on State v. Edwards, 607 A.2d 1312 (N.J. Super. Ct. App. Div.
1992), the Immigration Judge found that the specific controlled dangerous
substance underlying the respondent’s conviction constitutes a “means” of
violating section 2C:35-10(a)(1), rather than an “element” of the statute. The
Immigration Judge’s reliance on Edwards was understandable because the
decision 	contains 	language 	stating 	that 	“the 	nature 	of 	the 	[controlled
dangerous substance], like the quantity, is not an element of the offense,” and
that “[t]he particular substance possessed is relevant only for grading and is
not part of the description of the prohibited conduct in the definition of the
offense.” Id. at 1313. However, when these statements are considered in the
context of the specific issue the court in Edwards analyzed, it becomes much
less clear whether the case “definitively answers” the “elements” versus
“means” question. 	Mathis, 136 S. Ct. at 2256. 	The issue in Edwards, 607
A.2d at 1313, was whether the State was required to prove that the “defendant
knew precisely what controlled dangerous substance was possessed,” as
opposed to knowing that the substance possessed was a controlled dangerous
substance.
The court in Edwards held that the State was only required to prove that
the defendant knew she possessed a controlled dangerous substance. 	In so
holding, the court relied on State v. Torres, 563 A.2d 1141 (N.J. Super. Ct.
App. Div. 1989). In that case, the court held that the State was not required
to prove that a defendant knew the specific quantity of drugs he or she
possessed under New Jersey’s statute criminalizing possession with intent to
distribute a controlled dangerous substance. Instead, the court stated, “[T]he
jury must find that [the] defendant manufactured, distributed, dispensed or
possessed 	the 	relevant 	quantity 	or 	quality 	of 	[controlled 	dangerous
substance] by proof beyond a reasonable doubt.” Id. at 1145. This language
indicates that the quantity or quality of a controlled dangerous substance is
an “element” of the statute, as contemplated by Mathis, 136 S. Ct. at 2248,
which specifically defined “elements” as those things “the jury must find

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beyond a reasonable doubt to convict the defendant.” However, in the very
next sentence, the court in Torres, 563 A.2d at 1145, “further [held] that the
quantity and quality are not elements of the 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.”
(Emphasis added.)
Our review of Edwards and Torres, which were decided more than
20 years before Mathis, suggests that those State decisions did not give the
term “element” the precise meaning and significance the Supreme Court did
in Mathis. 	This is evident from the statements in Torres that even though
a jury must find a defendant possessed the relevant quantity or quality of
a controlled dangerous substance “by proof beyond a reasonable doubt,” that
quantity or quality “are not elements of the offense.” 563 A.2d at 1145. It
is difficult to reconcile these statements with the Supreme Court’s definition
of an “element” in Mathis. Considering the context in which Edwards and
Torres used the term “element,” including the specific legal questions at
issue in those cases, we conclude that both decisions are ambiguous at best
in resolving whether the identity of the controlled dangerous substance
possessed is an “element” of the respondent’s statute of conviction or
a “means” of violating that statute. 	Accordingly, we conclude that New
Jersey does not have a published case that “definitively answers” whether the
identity of the controlled dangerous substance possessed is an “element” of
section 2C:35-10(a)(1). Mathis, 136 S. Ct. at 2256.
We nevertheless find it significant that the New Jersey Supreme Court
has upheld convictions for separate counts of possession of a controlled
dangerous 	substance 	in violation of 	section 2C:35-10(a)(1) 	where the
defendant 	possessed 	multiple 	controlled 	dangerous 	substances 	during
a single act. See, e.g., State v. Evans, 193 A.3d 843, 845–46, 852 (N.J. 2018)
(reinstating the defendant’s conviction for a count of possession of heroin
and a count of possession of cocaine, which were discovered during a search
incident to arrest); State v. Mann, 2 A.3d 379, 382, 386 (N.J. 2010)
(reinstating conviction for possession of cocaine and ecstasy, which were
seized during a single incident). If the identity of the controlled dangerous
substance was a “means” of committing the offense as opposed to an
“element,” these New Jersey Supreme Court decisions sustaining multiple
counts of possession of a controlled dangerous substance would violate the
constitutional prohibition against double jeopardy.
As we noted in a similar case, “[t]he Double Jeopardy Clause . . . provides
that no person may be tried more than once ‘for the same offense.’” Matter
of P-B-B-, 28 I&N Dec. at 48 (quoting Currier v. Virginia, 138 S. Ct. 2144,
2149 (2018)). 	For purposes of double jeopardy, offenses are “considered

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separate and distinct . . . if they involve distinct ‘elements.’” 	Id. (quoting
Currier, 138 S. Ct. at 2153).
In Matter of P-B-B-, 28 I&N Dec. at 45, this Board determined that the
identity of the drug possessed was an “element” of attempted possession of
a dangerous drug for sale under section 13-3407 of the Arizona Revised
Statutes. 	We found support for our determination in an Arizona case that
“upheld a defendant’s conviction for multiple counts of possession of
a 	dangerous 	drug 	under 	section 	13-3407 	where 	he 	possessed
methamphetamine and other dangerous drugs—namely, clonazepam and
diazepam.” 	Id. at 47 (citing State v. Tavasci, No. 1 CA-CR 07-0643, 2008
WL 2315690, at *2 (Ariz. Ct. App. June 3, 2008)). We observed that “if the
identities of the specific substances underlying the defendant’s offense . . .
were not alternative ‘elements’ of section 13-3407, . . . the court’s decision
to sustain multiple counts of possession of a dangerous drug would have
violated 	the 	constitutional 	prohibition 	against 	double 	jeopardy.” 	Id.
at 47–48; see also Matter of Gonzalez Lemus, 27 I&N Dec. 612, 614–15
(BIA 2019) (holding that where a State has “prosecuted as separate offenses
a single act involving . . . multiple controlled substances. . . . the elements of
proof required as to” an offense involving one drug “are not the same as those
essential” 	to 	proving 	an 	offense 	involving 	a 	different 	drug
(emphasis omitted)).
We applied similar reasoning in Matter of Dikhtyar, 28 I&N Dec. 214
(BIA 2021), where we concluded that the identity of the controlled substance
possessed is an “element” of section 58-37-8(2)(a)(i) of the Utah Code. We
relied, in part, on State v. Karren, 438 P.3d 18, 19–21 (Utah Ct. App. 2018),
where a Utah court “upheld a defendant’s conviction for two counts of
possession of a controlled substance under section 58-37-8(2)(a)(i) where he
was arrested after methamphetamine and marijuana were discovered in his
backpack.” Matter of Dikhtyar, 28 I&N Dec. at 220–21. We observed that
[t]he respondent has not explained how, given the prohibition against double
jeopardy, a defendant could be convicted of multiple counts of possession of
a controlled substance where the defendant committed a single act of possession
involving separate substances, if the identity of the specific controlled substance
possessed was simply an alternative means of committing the offense, rather than an
element of section 58-37-8(2)(a)(i).
Id. at 221. Given the elements-based test for double jeopardy, the New Jersey
Supreme Court cases cited above support our view that the identity of the
controlled 	dangerous 	substance 	possessed 	is 	an 	“element” 	of 	the
respondent’s statute of conviction.
In support of his argument that the controlled dangerous substance
possessed is a “means,” rather than an “element,” of section 2C:35-10(a)(1),

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the respondent argues 	that New Jersey has convicted 	a defendant of
possession of a controlled dangerous substance based on an indictment that
listed 	multiple 	controlled 	dangerous 	substances 	under 	each 	count.
Specifically, he cites State v. Gibson, 722 A.2d 960, 962 (N.J. Super. Ct.
App. Div. 1999), where a defendant had been convicted of one count of
possession of “cocaine and/or heroin” and a second count of possession of
“cocaine and/or heroin” with the intent to distribute. 4
We are not persuaded that Gibson supports the respondent’s argument
that the identity of the controlled dangerous substance possessed is a “means”
of violating section 2C:35-10(a)(1). 	The court in Gibson reversed the
convictions in that case and remanded for a corrected judgment. It also noted
that a “special verdict can reveal whether the jurors found defendant
possessed one or both substances.” Id. at 966 n.2. However, since there was
no special verdict in that case, the court concluded both counts “must merge”
because it did “not know if the jury found that defendant possessed heroin,
cocaine, or both.” 	Id. at 966. 	Therefore, while New Jersey may charge
a defendant with multiple controlled dangerous substances in the same count,
Gibson indicates that the jury is still required to identify which particular
controlled 	substance, 	or 	substances, 	was 	or 	were 	possessed, 	when
a defendant is convicted of separate counts of possession, relating to the
possession of a one or more substances.
B. Statutory Language
Having considered the relevant State court decisions, we next apply the
second step in the Mathis inquiry: 	examining the language of the State
statute of conviction. 	The Immigration Judge observed that the only
disjunctive language in section 2C:35-10(a)(1) with respect to the specific
controlled 	dangerous 	substance 	is 	the 	phrase 	a 	“controlled 	dangerous
substance, or its analog, classified in Schedule I, II, III or IV other than those
specifically covered in this section.”
We conclude that the structure of section 2C:35-10(a)(1) does not clearly
resolve whether the controlled dangerous substance is an “element” or
“means” of the offense. While section 2C:35-10(a) is broken into different
subsections providing different punishments, the particular subsection the
respondent was convicted under, (a)(1), classifies all possession offenses of
controlled dangerous substances listed under schedules I, II, III, and IV as
4 	We note that Gibson is the only published case the respondent cites in support of this
argument.

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crimes of the third degree. 5 	However, to the extent that the specific
controlled dangerous substance involved must be identified to determine
under which subsection of section 2C:35-10(a) a defendant was convicted,
this supports our finding that the identity of the substance is an “element.”
See Matter of P-B-B-, 28 I&N Dec. at 47 (stating that where a statute sets
forth “statutory alternatives carry[ing] different punishments,” depending on
the identity of the substance, these alternatives “must be elements” (quoting
Mathis, 136 S. Ct. at 2256)).
The DHS also argues that section 2C:35-10(a)(1) is similar to the
Pennsylvania drug statute that was found to be divisible in United States
v. Henderson, 841 F.3d 623 (3d Cir. 2016). 	In that case, the United States
Court of Appeals for the Third Circuit, in whose jurisdiction this case arises,
examined title 35, section 780-113(a)(30) of the Pennsylvania Consolidated
Statutes 	and 	the 	penalty 	provision 	at 	section 	780-113(f)(1) 	of 	the
Pennsylvania Consolidated Statutes.
5 	At the time of the respondent’s conviction, section 2C:35-10(a) of the New Jersey
Statutes Annotated provided as follows:
a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess,
actually or constructively, a controlled dangerous substance or controlled substance
analog, unless the substance was obtained directly, or pursuant to a valid prescription
or order form from a practitioner, while acting in the course of his professional
practice, or except as otherwise authorized by P.L. 1970, c. 226 (C.24:21-1 et seq.).
Any person who violates this section with respect to:
(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III
or IV other than those specifically covered in this section, is guilty of a crime of
the third degree except that, notwithstanding the provisions of subsection b. of
N.J.S.2C:43-3, a fine of up to $35,000.00 may be imposed;
(2) Any controlled dangerous substance, or its analog, classified in Schedule V, is
guilty of a crime of the fourth degree except that, notwithstanding the provisions
of subsection b. of N.J.S.2C:43-3, a fine of up to $15,000.00 may be imposed;
(3) Possession of more than 50 grams of marijuana, including any adulterants or
dilutants, or more than five grams of hashish is guilty of a crime of the fourth
degree, 	except 	that, 	notwithstanding 	the 	provisions 	of 	subsection 	b. 	of
N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or
(4) Possession of 50 grams or less of marijuana, including any adulterants or
dilutants, or five grams or less of hashish is a disorderly person.
Any person who commits any offense defined in this section while on any property
used for school purposes which is owned by or leased to any elementary or secondary
school or school board, or within 1,000 feet of any such school property or a school
bus, or while on any school bus, and who is not sentenced to a term of imprisonment,
shall, in addition to any other sentence which the court may impose, be required to
perform not less than 100 hours of community service.

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Section 	780-113(a)(30) 	prohibits 	“the 	manufacture, 	delivery, 	or
possession with intent to manufacture or deliver, a controlled substance by
a person not registered under this act, . . . or knowingly creating, delivering
or possessing with intent to deliver, a counterfeit controlled substance.” The
penalty provision, in turn, provides, in pertinent part, that “[a]ny person who
violates clause . . . (30) of subsection (a) with respect to . . . [a] controlled
substance or counterfeit substance classified in Schedule I or II which is
a narcotic drug, is guilty of a felony and upon conviction thereof shall be
sentenced to imprisonment not exceeding fifteen years.” 	35 Pa. Stat. and
Cons. Stat. § 780-113(f)(1) (West 2021) (footnote omitted).
The 	Third 	Circuit 	found 	that 	section 	780-113(f)(1) 	“disjunctively
incorporates all of the ‘controlled substances classified in Schedule I or II’
as the substances for which a defendant may receive a maximum sentence of
fifteen years for possession with intent to deliver.” 	Henderson, 841 F.3d
at 626–27 (citation omitted). The court observed that “[i]n order to identify
the 	‘substances 	classified 	in 	Schedule 	I 	or 	II,’ 	Section 	780-113(f)(1)
cross-references 	Section 	780-104 	of 	[the 	statute], 	which 	provides 	an
exhaustive list of controlled substances that fall within each schedule of
prohibited drugs.” Id. at 627. The court found the statute’s cross-reference
to an exhaustive list of specific substances “creat[ed] several alternative
elements; not separate means of commission.” Id. at 630.
We agree with the DHS that like the Pennsylvania statute at issue in
Henderson, section 2C:35-10(a)(1) of the New Jersey Statutes Annotated
similarly cross-references an exhaustive list of substances. In particular, the
statute cross-references schedules I, II, III, and IV of the New Jersey drug
schedules, which provide a finite list of controlled dangerous substances.
While not clear evidence that the identity of the controlled dangerous
substance possessed is an “element” of the respondent’s State statute of
conviction, the Third Circuit’s determination that a similarly-structured
statute is divisible supports our conclusion that the identity of the controlled
dangerous substance is an “element” of section 2C:35-10(a)(1). 6
6 	Other circuits have found that the identity of the specific substance is an “element” of
statutes that cross-reference drug schedules containing an exhaustive list of substances.
For example, the First Circuit concluded in Swaby v. Yates that a Rhode Island drug statute
was “divisible by the type of drug,” in part, because the statute assigned “‘different
punishments,’ based on the class of a drug, and then ‘exhaustive[ly]’ list[ed] the individual
drugs by type on the state drug schedules.” 847 F.3d 62, 68 (1st Cir. 2017) (first alteration
in original) (citations omitted). 	Likewise, the Ninth Circuit in Coronado v. Holder
determined that a California drug statute was divisible because it “identifies a number of
controlled substances by referencing various California drug schedules and statutes and
criminalizes the possession of any one of those substances,” effectively creating “‘several
different . . . crimes,’ and not separate ‘means of commission.’” 759 F.3d 977, 985 (9th

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Citing Hillocks v. Att’y Gen. U.S., 934 F.3d 332 (3d Cir. 2019), the
respondent argues that his statute of conviction is indivisible because section
2C:35-10(a)(1) is not alternatively phrased; it instead 	merely requires
possession of a controlled dangerous substance or controlled substance
analog without alternatively listing the substances it criminalizes. 	We find
Hillocks to be distinguishable and disagree with the respondent that his
statute of conviction is not alternatively phrased.
In Hillocks, the court addressed whether a conviction for criminal use of
a communication facility in violation of title 18, section 7512(a) of the
Pennsylvania Consolidated Statutes was a conviction for an aggravated
felony for illicit trafficking of a federally controlled substance under section
101(a)(43)(B) 	of 	the 	Act, 	8 	U.S.C. 	§ 	1101(a)(43)(B) 	(2018). 	The
Pennsylvania statute provided as follows:
A person commits a felony of the third degree if that person uses a communication
facility to commit, cause or facilitate the commission or the attempt thereof of any
crime which constitutes a felony under this title or under [35 Pa. Stat. and Cons. Stat.
§ 780-101 et seq.], known as The Controlled Substance, Drug, Device and Cosmetic
Act. 	Every instance where the communication facility is utilized constitutes
a separate offense under this section.
18 Pa. Stat. and Cons. Stat. § 7512(a) (West 2015) (footnote omitted). The
court found that section 7512(a) was indivisible, in part, because the statute
“does not have enumerated categories that suggest alternate elements.”
Hillocks, 	934 	F.3d 	at 	344. 	By 	contrast, 	section 	2C:35-10(a)(1)
cross-references 	four 	enumerated 	drug 	schedules 	in 	the 	alternative,
suggesting that the specific identity of the substances listed in each schedule
are alterative “elements.”
Finally, we agree with the DHS that the relevant legislative history
supports our view that the New Jersey Legislature intended the identity of
the controlled dangerous substance possessed to be a statutory “element” of
section 2C:35-10(a)(1). 	In its declaration of policy and legislative findings
with regard to the Comprehensive Drug Reform Act of 1987, the Legislature
stated: “[I]t is the policy of this State to distinguish between drug offenders
based on the seriousness of the offense, considering principally the nature,
quantity and purity of the controlled substance involved . . . .” N.J. Stat. Ann.
§ 2C:35-1.1(c) (West 1987).
Cir. 2014) (citations omitted). But see Johnson v. Barr, 967 F.3d 1103, 1109 (10th Cir.
2020) (concluding that although a Colorado drug statute setting forth “alternative schedule
groupings carry[ing] different punishments . . . . may be divisible as to the particular
schedules, [it] is indivisible as to the identity of the particular controlled substance”).

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C. Record of Conviction
Because New Jersey case law and the language of the statute of
conviction support our finding that the identity of the controlled dangerous
substance possessed is an “element” of the statute, but do not “provide clear
[or definitive] answers,” we may “peek” at the respondent’s record of
conviction “for ‘the sole and limited purpose of determining whether” the
controlled 	dangerous 	substances 	listed 	in 	section 	2C:35-10(a)(1) 	are
“element[s] of the offense.’” 	Mathis, 136 S. Ct. at 2256–57 (second
alteration in original) (citation omitted).
The indictment in the respondent’s case reflects that he was charged with
possessing the controlled dangerous substance of cocaine. 	Because this
charging 	document 	“referenc[es] 	one 	alternative 	[controlled 	dangerous
substance] to the exclusion of all others,” the Mathis “peek” supports our
view that the identity of the controlled dangerous substance possessed is an
“element” of section 2C:35-10(a)(1), as opposed to a “means” of violating
the statute. Id. at 2257.
III. CONCLUSION
We 	therefore 	conclude 	that 	the 	identity of 	the 	specific 	controlled
dangerous substance possessed is an “element” of section 2C:35-10(a)(1).
Thus, the statute is divisible with respect to the identity of the specific
substance possessed, and we may examine the respondent’s record of
conviction under a modified categorical analysis to determine whether that
substance is a controlled substance under Federal law. 	See Matter of
Dikhtyar, 28 I&N Dec. at 222; Matter of P-B-B-, 28 I&N Dec. at 50; Matter
of Gonzalez Lemus, 27 I&N Dec. at 616. 	As noted, the conviction record
reflects that the respondent was convicted of possessing cocaine, which is
a federally controlled substance. 	See 21 U.S.C. § 812, schedule II(a)(4)
(2018). 	As a consequence, the respondent’s conviction for possession of a
controlled dangerous substance under section 2C:35-10(a)(1) of the New
Jersey Statutes Annotated is a conviction for a controlled substance violation
that renders him removable as charged under section 237(a)(2)(B)(i) of the
Act. Accordingly, the DHS’s appeal from the Immigration Judge’s decision
to 	terminate 	these 	proceedings 	is 	sustained, 	the 	respondent’s 	removal
proceedings 	are 	reinstated, 	and 	the 	record 	is 	remanded 	to 	allow 	the
respondent to apply for any relief for which he may be eligible.
ORDER: 	The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.

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448
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.
CONCURRING OPINION: Blair T. O’Connor, Appellate Immigration
Judge
I join the excellent majority opinion and its conclusion that the identity
of the controlled dangerous substance is an element of New Jersey drug
offenses. 	I write separately to note the inordinate complexity of the legal
question we have just answered. While the Supreme Court indicated that the
“threshold inquiry [of] elements or means” would be “easy . . . in many”
cases, 	Mathis 	v. 	United 	States, 	136 	S. 	Ct. 	2243, 	2256 	(2016), 	we
unfortunately have not found that to be so in practice. Instead, our experience
time and time again has been that “[w]hat [should be] a simple matter
[instead has become] a time-consuming legal tangle.” 	Id. at 2264 (Breyer,
J., dissenting). Our determination here is a case in point. Cocaine is the only
substance listed on the indictment to which the respondent pled guilty. Yet,
rather than simply acknowledging a simple fact which is plainly before us—
that the respondent stands convicted of possessing cocaine, a federally
controlled substance—the categorical approach requires us to engage in an
extremely complicated analysis of whether the identity of the controlled
substance 	possessed 	is 	an 	element 	or 	means 	of 	violating 	section
2C:35-10(a)(1) of the New Jersey Statutes Annotated. Only if it is an element
can we then refer to the indictment to which the respondent pled. This entire
process would leave the casual observer shaking his or her head. 	But for
immigration adjudicators, trying to navigate through legal minefields such as
this is an all too common occurrence.
All of this is apparently necessary to “preclud[e] the relitigation of past
convictions [by Immigration Judges] long after the fact.” 	Moncrieffe
v. Holder, 569 U.S. 184, 200–01 (2013). But that is not an actual concern in
many immigration cases involving criminal issues, including this one, where
the record of conviction that is already before the Immigration Judge clearly
indicates that the respondent was convicted of the generic offense. There is
nothing to relitigate in a case such as this. Yet, rather than taking a minute
to acknowledge the evidence that is already before them, Immigration Judges
(and the Board) are required to engage in “an endless gauntlet of abstract
legal questions.” 	United States v. Chapman, 866 F.3d 129, 137 (3d Cir.
2017) (Jordan, J., concurring) (citation omitted). 	The fact that we do so in
civil proceedings, where the respondent has no right to a jury trial under the
Sixth Amendment, is all the more remarkable. See Pereida v. Wilkinson, 141

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449
S. Ct. 754, 767 (2021) (“Sixth Amendment concerns are not present in the
immigration context.”).
I point all this out to emphasize that determinations like this are far from
easy, and they consume precious time and resources for an immigration court
system that is already facing an unprecedented backlog of cases. Performing
a modified categorical analysis in a case such as this is far less “onerous than
deciding whether a particular statute provides separate elements of a crime
or alternative means of committing the offense.” Matter of Chairez, 27 I&N
Dec. 21, 25 (BIA 2017) (Malphrus, concurring). Yet here we are. 	As was
recently acknowledged by Judge Park of the United States Court of Appeals
for the Second Circuit, “the categorical approach perverts the will of
Congress, 	leads 	to 	inconsistent 	results, 	wastes 	judicial 	resources, 	and
undermines confidence in the administration of justice.” 	United States
v. Scott, 990 F.3d 94, 126 (2d Cir. 2021) (en banc) (Park, J., concurring)
(collecting cases). There must be a better path forward.