(A)  A Brief History.   The earliest case to address a state drug conviction in the context of the aggravated felony definition, Matter of Barrett,[244] 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.…”), defining 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 Acts enumerated in 18  U.S.C. § 924(c)(2) could also be found to be aggravated felony offenses for immigration purposes.  Thus, if a state statute of conviction was analogous to a federal offense under one of the three Acts, so that a noncitizen hypothetically could have been convicted of the federal offense, if it had been prosecuted in federal court, the noncitizen would be held to have committed an offense “punishable under” one of those Acts, and therefore would be an aggravated felon. 

 

In Matter of Davis,[245] the BIA held that a state conviction of a drug offense must be punishable under one of the three Acts as a federal felony,[246] in order for the offense to qualify as an aggravated felony.  Therefore, an offense punishable only as a misdemeanor under federal law would not trigger removal as an aggravated felony drug trafficking offense.  Based on this holding, the BIA held in Matter of LG,[247] that a state felony simple possession offense that was a misdemeanor under the Controlled Substances Act (“CSA”) was not an aggravated felony for immigration purposes.

           

In Matter of KVD,[248] the BIA was faced with a case arising in the Fifth Circuit.  The Fifth Circuit had held, in United States v. Hinojosa-Lopez,[249] that a state felony conviction “punishable under” the CSA as a misdemeanor qualified as an aggravated felony drug trafficking offense, for purposes of calculating the sentence of a noncitizen convicted of illegal re-entry.   The BIA found that Hinajosa-Lopez did not control, given that the Fifth Circuit case dealt with sentencing, rather than removal.  The court distinguished between the two cases on the basis that the term “felony” was defined under 18 U.S.C. § 3559 in the removal context, while the Fifth Circuit had applied a different definition[250] in the sentencing context.

 

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.[251]  At least one circuit had also rejected the idea of treating a conviction as an aggravated felony in the sentencing, but not immigration context.[252] 

 

The BIA therefore decided, in Matter of Yanez-Garcia,[253] to overrule Davis, LG, and KVD, 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 rule among the circuit courts in making the determination.

 

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.  Therefore, the BIA found that the majority rule was that a state felony drug trafficking offense “punishable” under one of the three Acts would qualify as an aggravated felony, even if the offense would only be punishable as a misdemeanor under federal law.

 

[244] Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990).

[245] Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992).

[246] A felony is defined under 18 U.S.C. § 3559 as an offense with a maximum possible term of imprisonment exceeding one year.  Matter of Davis, 20 I. & N. Dec. at 543.

[247] Matter of LG, 21 I. & N. Dec. 89 (BIA 1995).

[248] Matter of KVD, 22 I. & N. Dec. 1163 (BIA 1999).

[249] United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997).

[250] 21 U.S.C. § 802(13) (“The term ‘felony’ means any Federal or State offense classified by applicable Federal or State law as a felony.”).  See also United States v. Restrepo-Aguilar, 74 F.3d 361, 365 (1st Cir. 1996) (concluding that Congress and the Sentencing Commission in relying on the CSA for this aggravated felony definition used the definition of “felony” contained in the CSA); United States v. Ibarra-Galindo, 206 F.3d 1337, 1339 (9th Cir. 2000).

[251] See 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).

[252] United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2002) (rejecting KVD bifurcation).

[253] Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002).

BIA

AGGRAVATED FELONY - DRUG TRAFFICKING - SMALL QUANTITY
Matter of Aruna, 24 I.& N. Dec. 452 (BIA 2008) (Maryland misdemeanor conviction for violation of Maryland Criminal Law 5-602, distribution of a controlled substance, is an drug trafficking aggravated felony because the offense would be a felony if prosecuted under federal law; 21 U.S.C. 841(b)(4), which treats distribution of a small amount of marijuana without remuneration as a misdemeanor is not a separate federal offense, but rather a "mitigating exception" to the federal felony offense; therefore the categorical analysis is inapplicable to that section).

NOTE: A good example of outcome-based legal reasoning (and the BIA trying to have its cake and eat it too), this case may actually have some positive effect in fighting against Matter of Babaisakov, and other BIA attempts to avoid the categorical analysis. The BIA in this case pushes the "elements" vs. "facts" distinction very hard, providing language counsel can use in other cases.

First Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - STATE MISDEMEANOR CONVICTION OF POSSESSION OF CONTROLLED SUBSTANCES WITH INTENT TO DISTRIBUTE HELD AN AGGRAVATED FELONY BECAUSE IT WOULD HAVE BEEN A FELONY IF PROSECUTED IN FEDERAL COURT
Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir. Sept. 26, 2006) (to determine whether a state drug offense is an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), the court examines whether the underlying offense would have been punishable as a felony if it had been prosecuted under federal law, and is not bound by the fact that the conviction is a misdemeanor under state law).

Third Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " ILLICIT TRAFFICKING TEST " FELONY REQUIRED
Thomas v. Attorney General of U.S., 625 F.3d 134 (3d Cir. Oct. 26, 2010) (Because Thomas's convictions were misdemeanors under New York Penal Law, see N.Y. Penal Law 221.40, those convictions cannot, by definition, be aggravated felonies pursuant to the illicit trafficking route.)

Ninth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " COCAINE BASE
United States v. Baptist, __ F.3d __, 2011 WL 2150993 (9th Cir. Jun. 2, 2011) (Fair Sentencing Act of 2010, reducing 100-1 disparity in sentencing for crack cocaine, is not retroactive).