Frias Ulloa

Cite as 

 (BIA 2025)                                Interim Decision #4131




       Matter of Carlos Esteban FRIAS ULLOA, Respondent
                       Decided by Board August 11, 2025 1
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                         Board of Immigration Appeals

   Section 2C:35-5(b)(4) of the New Jersey Statutes Annotated is divisible by controlled
substance, and applying the modified categorical approach, the respondent’s record of
conviction identifies the relevant substance as fentanyl, a federally controlled substance.
Matter of Laguerre, 

 (BIA 2022), followed.
FOR THE RESPONDENT: Laura S. Rodriguez, Esquire, Newark, New Jersey
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sarah B. Campbell, Assistant
Chief Counsel
BEFORE: Board Panel: MULLANE and GOODWIN, Appellate Immigration Judges;
MCCLOSKEY, Temporary Appellate Immigration Judge.
MULLANE, Appellate Immigration Judge:


   The Department of Homeland Security (“DHS”) appeals the Immigration
Judge’s July 2, 2024, decision granting the respondent’s motion to terminate
proceedings. The respondent opposes the appeal. The appeal will be
sustained.

   The question on appeal is whether the respondent’s 2022 conviction for
possession with the intent to distribute a controlled dangerous substance in
violation of sections 2C:35-5(a)(1) and (b)(4) 2 of the New Jersey Statutes
Annotated is a controlled substance offense and an illicit trafficking
aggravated felony under section 101(a)(43)(B) of the Immigration and
Nationality Act (“INA”), 

(a)(43)(B) (2018), that renders him
1
   Pursuant to Order No. 6403-2025, dated September 22, 2025, the Attorney General
designated the Board’s decision in Matter of Frias Ulloa (BIA Aug. 11, 2025), as precedent
in all proceedings involving the same issue or issues. See 

(g)(3) (2025).
Editorial changes have been made consistent with the designation of the case as a
precedent.
2
   The New Jersey records delineate the subsections as “a” or “A” instead of “(a),” for
example, 2C:35-5a(1) in the indictment and 2C:35-5A(1) in the record of conviction. For
clarity, we refer to the subsections within parentheses throughout this decision, which is
how we have previously referred to this section of New Jersey law. See, e.g., Matter of
Laguerre, 

 (BIA 2022) (referring throughout to “2C:35-10(a)(1)”).
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removable under sections 237(a)(2)(B)(i) and 237(a)(2)(A)(iii) of the INA”,

(a)(2)(A)(iii), (B)(i) (2018), respectively. The answer
depends on whether the respondent’s statute of conviction is divisible by
controlled substance, permitting us to proceed from the categorical approach
to the modified categorical approach to determine that he was convicted of
an offense involving fentanyl, a federally controlled substance. See, e.g.,
Matter of Laguerre, 

 (BIA 2022).

    At all relevant times, section 2C:35-5 of the New Jersey Statutes
Annotated criminalized possession with intent to distribute a controlled
substance in (a)(1) and then laid out different penalty schemes in (b)(1)
through (14) according to the controlled substances involved. Accordingly,
the Immigration Judge found that the respondent’s statute of conviction was
divisible regarding the various penalty subsections of (b), and that the
respondent specifically was convicted under (b)(4).            However, the
Immigration Judge determined that (b)(4), which contained several grouped
substances, was not further divisible by substance. And after finding that the
grouped controlled substances in (b)(4) included at least one that is not
federally controlled, he determined that the respondent’s conviction did not
categorically involve a federally controlled substance and thus did not sustain
the charges of removability.

    In Matter of Laguerre, 

, we held that a related statute,
section 2C:35-10(a)(1) of the New Jersey Statutes Annotated, was divisible
by substance. This statute prohibits possession of a controlled substance and
is substantially similar to the respondent’s statute of conviction that prohibits,
at a minimum, possession with intent to distribute. Compare N.J. Stat. Ann.
§ 2C:35-10(a)(1) (West 2007), with N.J. Stat. Ann. § 2C:35-5 (West 2022).
The relevant portion of the statute we found divisible by substance in Matter
of Laguerre provides:
     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 . . . .

N.J. Stat. Ann. § 2C:35-10(a)(1). Subsection (b)(4) of the respondent’s
statute of conviction provides:
     b. Any person who violates subsection [(a)] with respect to:
         ....
         (4) A substance classified as a narcotic drug in Schedule I or II other than those
       specifically covered in this section, or the analog of any such substance, in a


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Cite as 

 (BIA 2025)                               Interim Decision #4131




       quantity of one ounce or more including any adulterants or dilutants is guilty of a
       crime of the second degree[.]

N.J. Stat. Ann § 2C:35-5(b)(4). We discern no relevant differences between
these statutes that would prevent the full application of the analysis in
Matter of Laguerre, which found that based on the statutory language,
New Jersey case law, and legislative history, the identity of the controlled
substance is an element of the statute criminalizing controlled substance
possession. 28 I&N Dec. at 438–46. Thus, for the same reasons, we
conclude that the identity of the controlled substance is an element of the
statute criminalizing controlled substance possession with intent to
distribute.

    Moreover, in an unpublished but extensive opinion, Gayle v.
Attorney General United States, No. 22-1811, 

, at *4–6
(3d Cir. June 15, 2023), the United States Court of Appeals for the
Third Circuit found that subsection (b)(1) of section 2C:35-5 was divisible
by substance. And in doing so, the Third Circuit disagreed with the
Immigration Judge’s underlying reasoning here that because the penalty
subsection groups drugs without listing the drugs in the alternative or
providing for differing penalties, it is not further divisible by substance. The
petitioner in Gayle made the same argument for subsection (b)(1), but the
Third Circuit explained that the grouping of drugs within subsections
“appears merely to reflect the drafters’ decision to address drugs by type and,
reading the statute as a whole, such groupings do not reflect a desire to treat
grouped substances interchangeably as means” and ultimately concluded
that section 2C:35-5(b) is “divisible by controlled substance.” Gayle,

, at *5–6. This reasoning is persuasive.

    Thus, the relevant portion of the respondent’s statute of conviction,
section 2C:35-5(b)(4) of the New Jersey Statutes Annotated, is divisible by
controlled substance, and we may look at the record of conviction under the
modified categorical approach to determine which substance his conviction
involved: fentanyl, a federally controlled substance. See 

(c),
schedule II(b)(6) (Supp. IV 2022); see also Matter of Laguerre, 

. Here, the respondent provides two fallback arguments. First, he
posits that the record of conviction is too ambiguous to show, by clear and
convincing evidence, that he was convicted of a fentanyl offense. We
disagree. His indictment states in “Count 2, Possession With Intent to
Distribute, 2nd Degree” that he “did unlawfully and knowingly or purposely
possess with intent to distribute Fentanyl in a quantity of one ounce or more;
contrary to the provisions of N.J. Stat. Ann. 2C:35-5(a)(1),
N.J.S.A. 2C:35-5(b)(4).”. And his judgment of conviction shows that he was
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convicted of the “Count 2, 2C:35-5a(1), Degree 2” offense. We are
unpersuaded by the respondent’s argument that the exclusion of section
2C:35-5(b)(4) from the judgment of conviction creates ambiguity, because
that subsection is the penalty provision that makes the respondent’s crime a
second-degree offense. And while the Form I-213 lists the respondent’s
crime as “Heroin—Sell”, this shorthand description on a Federal
administrative immigration form does not cast any doubt on the specific
information contained in the State criminal record of conviction.

    Second, the respondent argues that the definition of “fentanyl” itself is
further divisible into various salt and isomer chemical formulations, some of
which are controlled only by New Jersey, and thus overbroad compared to
the Federal definition of fentanyl. But the arguably divisible definition he
cites to is for “illicit fentanyls” which “include any material, compound,
mixture, or preparation that is not listed as a controlled substance in
Schedules I through V.” 

:45H-10.1(e)(10) (2025)
(emphasis added). “Fentanyl” is listed as a controlled substance in
schedule II, and thus not included within the definition of “illicit fentanyls”
relied upon by the respondent. 

(d)(6) (2025);
see also 

(c), schedule II(b)(6). Instead, the list of “illicit
fentanyls” covers various chemical formulations that are similar to, but not,
fentanyl. See 

:45H-10.1(e)(10)(i)-(vii). The
respondent was convicted of possessing with the intent to distribute fentanyl,
not carfentanyl, or 2- or 3-carbomethoxyfentanyl, or any other salt, isomer,
or analogue of illicit fentanyls raised by the respondent. Because the
respondent’s statute is divisible by substance, we need only determine what
substance his conviction involved, and the fact that New Jersey may control
other substances is irrelevant, no matter whether the differences between
those substances and fentanyl are obvious or apparent only under a
high-powered microscope.

    In conclusion, the respondent’s statute of conviction is divisible by
substance, and under the modified categorical approach, his record of
conviction shows that he was convicted of possession with intent to sell
fentanyl, a federally controlled substance. 

(c), schedule
II(b)(6). Accordingly, he has been convicted of a controlled substance
offense under section 237(a)(2)(B)(i) of the INA, 

(a)(2)(B)(i), and an illicit trafficking aggravated felony under section
237(a)(2)(A)(iii) of the INA, 

(a)(2)(A)(iii), and is removable
as charged. We will sustain DHS’ appeal and remand the record to the
Immigration Judge for further proceedings consistent with this opinion.

   Accordingly, the following orders will be entered.
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 (BIA 2025)                      Interim Decision #4131




   ORDER: DHS’ appeal is sustained.
   FURTHER ORDER: The Immigration Judge’s July 2, 2024, decision
granting the respondent’s motion to terminate is vacated, and removal
proceedings are reinstated.

   FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with this opinion.




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