Cazarez-Gutierrez v. Ashcroft, ___ F.3d ___, 2004 WL 112635 (9th Cir. Jan. 26, 2004), overturning Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002) (Arizona felony conviction of possession of methamphetamine, in violation of Ariz. Rev. Stat. 13-3407 (West 1997), which would have been a misdemeanor under 21 U.S.C. 844(a) if prosecuted in federal court, is not drug-trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for deportation purposes, under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), in order to enforce "the presumption that Congress intends immigration law to be nationally uniform and uniformly applied," so as to avoid different results depending on the vagaries of state law).      A state felony conviction of simple possession of a controlled substance cannot constitute a drug-trafficking aggravated felony, for deportation purposes, since it would have been a misdemeanor under 21 U.S.C. 844(a) if prosecuted in federal court. Cazarez-Gutierrez v. Ashcroft, ___ F.3d ___, 2004 WL 112635 (9th Cir. Jan. 26, 2004)(Arizona felony conviction of possession of methamphetamine, in violation of Ariz. Rev. Stat. 13-3407 (West 1997), which would have been a misdemeanor under 21 U.S.C. 844(a) if prosecuted in federal court, did not constitute a drug-trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for deportation purposes, under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), in order to enforce "the presumption that Congress intends immigration law to be nationally uniform and uniformly applied," so as to avoid different results depending on the vagaries of state law). The only exceptions are possession of more than five grams of cocaine base, or any amount of the date-rape drug flunitrazepam, which constitute felonies under federal law, even for first-offenses. 21 U.S.C. 844(a). Note that a felony simple possession conviction does constitute an aggravated felony for purposes of enhancing a sentence for illegal reentry under the Guidelines. United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000).      In the Ninth Circuit, the court must ignore penalties enhanced as a result of recidivist sentence enhancements in determining whether a conviction constitutes an aggravated felony conviction. Corona-Sanchez v. INS, 291 F.3d 1201, 1205 (9th Cir. 2002)(en banc); United States v. Arellano-Torres, 303 F.3d 1173, 1176 (9th Cir. 2002). Therefore, a second or third conviction for simple possession of a controlled substance, under this analysis, constitutes a federal misdemeanor. United States v. Ballesteros-Ruiz, 319 F.3d 1101, 1103 (9th Cir. 2003), disapproving United States v. Garcia-Olmedo, 112 F.3d 399 (9th Cir. 1997), and United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. 1998), as having been overruled by Corona-Sanchez v. INS, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc). Therefore, even a state felony conviction of simple possession of a controlled substance cannot constitute an aggravated felony for deportation purposes. Cazarez-Gutierrez v. Ashcroft, ___ F.3d ___, 2004 WL 112635 (9th Cir. Jan. 26, 2004).      The History of Simple Possession Cases in the BIA:      In Yanez-Garcia, the BIA threw out nearly twelve years of prior case law on how to determine whether a state drug offense is an aggravated felony.      The earliest case, Matter of Barrett 20 I. & N. Dec. 171 (BIA 1990), confronted the meaning of 18 U.S.C. 924(c)(2) ("the term drug trafficking crime includes any felony punishable under the Controlled Substances Act."), which defined the term "drug trafficking crime" for purposes of the aggravated felony definition. The BIA held that to maintain comity between the federal and state governments, state drug offenses that are "punishable under" the federal CSA could also be found to be aggravated felony offenses for immigration purposes. Thus if a state statue of conviction is sufficiently analogous to a federal offense under the CSA that a noncitizen could have hypothetically been convicted of the federal offense, the noncitizen would be held to have committed an offense "punishable under" the CSA.      Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), held that a state misdemeanor simple possession offense could be found to be an aggravated felony if the same offense would be punishable under the CSA as a felony. In Matter of L-G-, 21 I. & N. Dec. 89 (BIA 1995), the BIA made the correlate holding that a state felony simple possession offense that is a misdemeanor under the CSA is not an aggravated felony for immigration purposes.      In Matter of K-V-D-, 22 I. & N. Dec. 1163 (BIA 1999), the BIA was faced with a case arising from the Fifth Circuit. In the Fifth Circuit, United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), required that a state felony drug offense be found to be an aggravated felony for purposes of calculating the SENTENCE of a noncitizen convicted of illegal reentry, even if the offense was only a misdemeanor under the CSA. The BIA found that Hinajosa-Lopez did not control, given that the Fifth Circuit case dealt with sentencing, rather than removal.      Each of these BIA decisions was decided on the principle that, as a matter of federal law, the determination of whether a noncitizen is an aggravated felon for immigration purposes should be determined on the basis of a uniform federal standard (the CSA).      By 2002, however, the BIA was faced with a number of circuit decisions that, like Hinojosa-Lopez, held that a state felony/federal misdemeanor offense was an aggravated felony for sentencing purposes, and at least one circuit decision rejecting the idea of treating an offense as an aggravated felony in the sentencing context, but not for removability purposes. See United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2002) (rejecting different rule for immigration than sentencing purposes); Hinojosa-Lopez, supra (aggravated felony in sentencing context), United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000), cert. denied, 531 U.S. 1102 (2001) (same); United States v. Simon, 168 F.3d 1271 (11th Cir.), cert. denied, 528 U.S. 844 (1999) (same);United States v. Briones-Mata, 116 F.3d 308 (8th Cir. 1997) (same); United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996) (same); United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. 1996) (same); United States v. Polanco, 29 F.3d 35 (2d Cir. 1994) (same).      The BIA therefore decided in Yanez-Garcia to modify/overrule Davis, L-G, and K-V-D-, and instead defer to the law of the circuit in which the case arises. The BIA further held that where a circuit had not yet decided the issue, the BIA would go with the majority theory among the circuit courts in making the determination.      In making this holding, the BIA implicitly also rejected the idea of any analytical difference between the immigration and sentencing contexts in determining whether an offense is an aggravated felony. Thus, for cases arising in those circuits that had decided that state felony/federal misdemeanor offenses were aggravated felonies in the sentencing context (or had not made a decision in either context), such offenses would be aggravated felonies for removal purposes as well. The only exceptions were the Second and Third Circuits, which had decided to follow the reasoning of K-V-D. Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996).      In Cazarez-Gutierrez v. Ashcroft, - F.3d -, 2004 WL 112635 (9th Cir. January 26, 2004), the Ninth Circuit rejected the implication by the BIA that a circuit court decision in the sentencing context is necessarily applicable in the immigration context, and firmly restated the principle of federal uniformity in application of the immigration law, stating that, "[i]nterpretations of the INA that vary according to the state law are not permissible without plain indication that Congress intended to incorporate state variations." Cazarez-Gutierrez, at *6. The Court went into the legislative history of the aggravated felony definition and 18 U.S.C. 924(c), and concluded that Congress did not intend to incorporate the vagaries of state law into immigration law. Id. at *7-9.