Aggravated Felonies

(D)  Retroactivity.  One district court has held that retroactive application of the BIA decision in Matter of Yanez-Garcia[283] violated the Fourteenth Amendment Due Process clause for a noncitizen who relied upon the former rule of Matter of KVD[284] in entering a guilty plea to possession of a controlled substance, in the belief that his offense was not an aggravated felony and he would be eligible for cancellation of removal.[285]  The Fifth Circuit disagrees.[286]  See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 7.69 (2005).

[283] Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002).  See Yanez-Garcia v. Ashcroft, 388 F.3d 280 (7th Cir. Nov. 2, 2004) (dismissing for lack of jurisdiction a petition for review seeking to reverse Board of Immigration Appeals’ decision that a single possession offense can qualify as aggravated felony drug trafficking crime).

[284] Matter of KVD, 22 I. & N. Dec. 1163 (BIA 1999), overruled by Yanez-Garcia, supra.

[285] Pradith v. Ashcroft, CV 03-1304-BR (D.C. Ore. 2003) (unpublished).

[286] Salazar-Regino v. Trominski, 415 F.3d 436 (5th Cir. June 30, 2005) (Texas conviction of felony possession of marijuana constituted a conviction for removal purposes even though it did not constitute grounds for removal under the hypothetical federal felony test applied by the BIA at the time the plea of guilty was entered; rejecting judicial retroactivity argument).