In Matter of German Santos, 28 I&N Dec. 552, (BIA 2022), the Board held that: (1) Any fact that establishes or increases the permissible range of punishment for a criminal offense is an “element” for purposes of the categorical approach, even if the term “element” is defined differently under State law. Matter of Laguerre, 28 I&N Dec. 437 (BIA 2022), followed, and (2) Title 35, section 780-113(a)(30) of the Pennsylvania Consolidated Statutes, which punishes possession with intent to deliver (PWID) a controlled substance, is divisible with respect to the identity of the controlled substance possessed, and the respondent's conviction under this statute is one for a controlled substance violation under section 237(a)(2)(B)(i) of the Immigration and Nationality Act.
Not a great outcome for many noncitizens with a criminal record reflecting this conviction, but this is the nature of the categorical approach versus modified categorical approach word salad. It does not seem to have been taken to the Third Circuit yet on a petition for review, but I would expect it to be filed within the thirty day period following May 5, 2022, so by June 4, 2022. Because June 4, 2022, is a Saturday, the alien has until June 6, 2022, to file the petition.