Aggravated Felonies

 

(C)  State Felony Simple Possession.  The courts are split on whether a state felony first offense simple possession should be considered a “felony,” even though it is only considered a misdemeanor under federal law. 

 

A conviction for possession of more than five grams of cocaine base, or any amount of the date-rape drug flunitrazepam, will  constitute a felony under federal law, even for a first offense.[271]  Therefore a felony or misdemeanor state conviction for possession of these two drugs will constitute an aggravated felony for immigration purposes.

 

            (1)  Sentencing Context.  In the illegal re-entry sentencing context, the First, Second, Fourth, Fifth, Eighth, Ninth, Tenth and Eleventh Circuits have held that a state felony simple possession conviction is a “felony” and therefore an aggravated felony. [272]  No circuit has specifically held otherwise.

 

            The Fifth Circuit has additionally held that a state misdemeanor simple possession conviction, with a maximum of 18 months, constitutes an aggravated felony for sentencing purposes, because the maximum sentence is more than one year.[273]

 

The Fourth Circuit, on the other hand, has held that a Maryland conviction of simple possession, labeled a misdemeanor by the state but punishable by up to four years imprisonment, was not a “felony,” and therefore not an aggravated felony for sentencing purposes, since the sentencing context requires the court to look to the definition of “felony” in 21 U.S.C. § 802(13), which is wholly dependent upon the state label.[274]

 

            (2)  Immigration Context.  So far, only the Eighth Circuit has explicitly held that a state felony first offense simple possession conviction is a “felony” and therefore an aggravated felony for immigration purposes.[275]  However, the BIA recognized this as the “majority rule” on the basis of the sentencing cases.  Under the holding announced in Matter of Yanez-Garcia, [276] the BIA will apply this rule except when the case arises from a jurisdiction that has explicitly held otherwise.

 

            One can assume that the Fifth Circuit would independently consider such a conviction to be a felony for immigration purposes, given that court’s statement that there should be no difference between the immigration and sentencing contexts.[277]

 

The Second, Third, Sixth and Ninth Circuits have expressly reached the “minority” position that a state felony simple possession offense is not a “felony,”  and therefore not an aggravated felony for immigration purposes because it would not be a felony if prosecuted in federal court.[278]  These cases essentially follow the reasoning of Matter of LG­,[279] and Matter of KVD.[280] 

 

While the Seventh Circuit has yet to make a decision on this issue,[281] the district courts within that circuit appear to be in agreement with the minority rule applied in the Ninth.[282]

In the First, Fourth, Seventh, Tenth, Eleventh, and D.C. Circuits, counsel can still argue that the “minority” rule should be adopted.

[271] 21 U.S.C. § 844(a).

[272] United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. Jan. 30, 1996); United States v. Ramirez, 344 F.3d 247 (2d Cir. 2003); United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. Mar. 26, 1999); United States v. Wilson, 316 F.3d 506 (4th Cir. Jan. 16, 2003); United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. May 11, 2001); United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. Dec. 4, 1997); United States v. Briones-Mata, 116 F.3d 308 (8th Cir. May 12, 1997); United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. Mar. 27, 2000); United States v. Castro-Rocha, 323 F.3d 846 (10th Cir. Mar. 25, 2003); United States v. Valenzuela-Escalante, 130 F.3d 944 (10th Cir. Dec. 5, 1997); United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. Apr. 16, 1996); United States v. Simon, 168 F.3d 1271 (11th Cir. Mar. 4, 1999).

[273] United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. June 7, 2005) (Colorado conviction of misdemeanor simple possession, under Colo.Rev.Stat. § 18-1.3- 501(1), punishable by up to 18 months imprisonment, is an aggravated felony for illegal re-entry sentencing purposes, as it is punishable by imprisonment for more than one year).

[274] United States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. Sept. 6, 2005).

[275] Tostado v. Carlson, 437 F.3d 706 (8th Cir. Feb. 3, 2006) (Illinois felony conviction for unlawful possession of cocaine and cannabis held a drug trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for immigration purposes, even though the offense would have been a misdemeanor if prosecuted in federal court, because “a drug trafficking crime is an offense which would be punishable under 21 U.S.C. § § 801 et seq., and which would qualify as a felony under either state or federal law.”), citing Lopez v. Gonzales, 417 F.3d 934, 936 (8th Cir. Aug. 9, 2005) (same), and quoting United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir. 1997) (sentencing context).

[276] Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 394 (BIA 2002) (en banc).

[277] United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001) (state felony simple possession is an aggravated felony for sentencing purposes; court rejected differing treatment of simple possession in immigration and sentencing contexts).

[278] United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. 2005) (indicating that the court will follow the hypothetical federal felony approach in applying INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), in immigration cases); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996); Gerbier v. Holmes, 280 F.3d 297 (3d Cir. Feb. 8, 2002); Liao v. Rabbitt, 398 F.3d 389 (6th Cir. Feb. 7, 2005) (Ohio conviction of possession of heroin, in violation of Ohio Rev. Code § 2925.11, a “fifth degree felony” under Ohio law, which is punishable by a maximum term of 12 months’ imprisonment, did not constitute an aggravated felony drug trafficking offense under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)) (alternative holding); Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sep 9, 2004) (prior drug possession not an aggravated felony since not a felony under federal law).

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

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

[281] Garcia v. Ashcroft, 394 F.3d 487 (7th Cir. Jan. 6, 2005) (petition for review is transferred to the district court and must be construed as a petition for a writ of habeas corpus to determine whether noncitizen’s state felony conviction for possession of a controlled substance, which is punishable only as a misdemeanor under federal law, qualifies as an aggravated felony).

[282] Masok v. Achim, 2005 WL 1017891 (N.D.Ill. Apr 28, 2005) (unpublished); Gonzales-Gomez v. Achim, 372 F.Supp.2d 1062 (N.D. Ill. Apr. 11, 2005) (Illinois conviction of possession of cocaine, considered a felony under 720 ILCS § 570/402(a), did not constitute a drug trafficking aggravated felony because it would have been no more than a misdemeanor conviction if prosecuted in federal court); Agate v. DHS, 2005 WL 991998 (N.D. Ill. Apr. 11, 2005) (unpublished), following Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir. 2004); Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996); declining to follow Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002).