Migration Law: Sibhatu Scenario

Migration Law: Sibhatu Scenario

Sibhatu was born on June 22, 1984. He is a native and citizen of Eritrea. He entered the United States through Washington, DC on March 1, 1998 with an immigrant visa. He along with his parents were admitted at the same time and they obtained their lawful permanent residency through the diversity lottery. However, on July 1, 2018 he was arrested and subsequently convicted on January 8, 2019 by the Court of Common Pleas of Berks County, Pennsylvania for the offense of Acquisition of, Obtaining, or Possession of a Controlled Substance by Misrepresentation, Fraud, Forgery, Deception or Subterfuge, to wit: knowingly/intentionally acquired Phenergan/Codeine/Zpack, a schedule II controlled substance in violation of Title 35 Pennsylvania Consolidated Statute Section 780-113(a)(12)–Felony. The statute he was convicted of is as follows: 

780-113(a)(12) Offense Defined 

“Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act. The acquisition or obtaining of possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge. 

The criminal complaint identifies the drugs as Phenergan/Codeine/Zpack.” He could have received a sentence of 5 years of imprisonment for this offense. However, he receives a 2 year imprisonment sentence. He only serves 90 days. On February 5, 2020, he finds out his aunt is killed in Eritrea by the Eritrean Police. His aunt had strongly opposed the current regime’s treatment of women and she organized protests against the current president. Sibhatu is now in fear for his life if he is forced to return to Eritrea. After his criminal conviction he comes into U.S. Immigration and Customs Enforcement (ICE) custody. Is he subject to removal? Why or why not? What charge or charges would apply? Is he eligible for bond? If so, what factors would the Immigration Judge consider, and should he be granted a bond? If he is removable, what forms of relief could he seek?


Analyze the short case and address the case based on the provision of INA, what is the charge, whether it is an aggravated felony, Please do the categorical approach first whether his conviction under Pennsylvania law is aggravated felony under the generic crime. Second, whether he is eligible for bond, and what kind of relief forms available for him like Cancellation of removal or asylum or voluntary departure

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