Aggravated Felonies

(B)  Second Offense Simple Possession.  The BIA has held that a second or subsequent conviction of simple possession of a controlled substance that is punishable as a misdemeanor under the state label will not be considered an aggravated felony, even though the offense would be a felony if punished under federal law.[262]  This may be considered the rule in the majority of the circuits, but this opinion is not universal.[263]  

A second or subsequent conviction of simple possession of a controlled substance, other than an amount in excess of five grams of cocaine base or any amount of flunitrazepam, will be considered a misdemeanor conviction in the Ninth Circuit,[264] even if the offense is labeled as a felony in the convicting jurisdiction, since the Ninth Circuit ignores sentence increases based on prior conviction sentence enhancements in determining whether a conviction falls within a ground of deportation.[265]  Therefore, a second or conviction for simple possession of a controlled substance, under this analysis, constitutes a federal misdemeanor,[266] and cannot constitute an aggravated felony for deportation purposes.[267]  Other circuits disagree.  See § 3.62, supra.

            There is favorable Board of Immigration Appeals authority, as well, on the general question of the irrelevance of sentence enhancements in determining whether a conviction falls within a ground of deportation.[268]  See § 4.32(G), supra; N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 5.63 (2005).  This argument can therefore be made in immigration court and in other circuits as well.

            Counsel can also argue that a second state simple possession conviction is not analogous to a second federal conviction where the state court did not require proof, beyond a reasonable doubt, of the existence of the first conviction in order to convict on the second.  In Steele v. Blackman,[269] the Third Circuit accepted this argument, finding that a second or subsequent state possession conviction cannot be considered an aggravated felony conviction, unless, in that case, the state court actually litigated and judicially established the existence of the prior conviction(s), as is required in federal court.  The court reiterated this position in Gerbier v. Holmes.[270]

[262] Matter of Elgendi, 23 I. & N. Dec. 515 (BIA Oct. 31, 2002) (en banc) (New York second misdemeanor conviction of possession of marijuana in the fifth degree, in violation of New York Penal Law § 221.10, did not constitute a drug trafficking crime, under 18 U.S.C. § 924(c)(2) (2000), under the Second Circuit test of United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), since state law held these convictions were misdemeanors with a maximum of three months in custody, and conviction was therefore not a drug trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for deportation purposes); Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA 2002) (Texas first and second conviction for possession of marijuana, both classified as misdemeanors under Texas law, are not considered felonies within the meaning of 18 U.S.C. § 924(c)(2) or an “aggravated felony” within the meaning of INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2000)), following United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert. denied, 122 S.Ct. 305 (2001), and United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997).

[263] Durant v. ICE, 393 F.3d 113 (2d Cir. Dec. 16, 2004) (second conviction for possession of cocaine is an aggravated felony drug offense, since a second possession conviction is a felony under federal law); United States v. Simpson, 319 F.3d 81 (2d Cir. 2002) (second misdemeanor simple possession conviction under New York law is an aggravated felony since the offense would be a felony under federal law); Copeland v. Ashcroft, 246 F.Supp.2d 183 (W.D.N.Y. Feb. 10, 2003) (New York misdemeanor conviction of Criminal Sale of Marijuana in the Fourth Degree, in violation of New York Penal Law § 221.40, constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(B), under the common-sense definition of illicit trafficking, since the defendant was convicted of acting as a businessman or merchant in connection with the trading, selling or dealing in controlled substances).

[264] Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (under federal law, a second possession conviction is not made a “felony” for this purpose by virtue of a recidivist sentence enhancement; court noted that contrary case, United States v. Garcia-Olmedo, had been overruled by en banc decision United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)).

[265] United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc); United States v. Arellano-Torres, 303 F.3d 1173, 1176 (9th Cir. 2002).

[266] 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 United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc).

[267] Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004); United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona conviction for shoplifting, in violation of Ariz. Rev. Stat. § 13-805(I), is not an aggravated felony since the felony sentence is possible only because of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself), citing United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

[268] Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587 (BIA Oct. 19, 1992) (conviction of five counts of attempted murder in the second degree, where sentence under one count was enhanced pursuant to California Penal Code § 12022(a) because a codefendant was armed with a firearm in the attempted commission of the felony, is not a conviction of a firearm offense under California law and does not trigger deportation under INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C), as an alien convicted at any time after entry of a firearm violation).

[269] Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001).

[270] Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002).