Safe Havens

(D)  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.[174]  This may be considered the rule in the majority of the circuits, but this opinion is not universal.[175]  

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,[176] 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.[177]  Therefore, a second or third conviction for simple possession of a controlled substance, under this analysis, constitutes a federal misdemeanor,[178] and cannot constitute an aggravated felony for deportation purposes.[179]

            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.  See § 5.63, supra.  This argument can therefore be made in immigration court and in other circuits as well.

            Immigration law has developed a rule that a state drug offense must include all of the elements of an offense that would be punished as a felony under the federal statute, in order for the state conviction to be held an aggravated felony as a state analogue to a federal felony.[180]  Therefore, unless a state prosecutor pleaded and proved the prior possession offense in state court, the state-court conviction arguably should not be considered “punishable” as a felony under federal law.[181]

[174] 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-López, 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).

[175] United States v. Simpson, 319 F.3d 81 (2d Cir. 2002) (second misdemeanor simple possession conviction under New York law an aggravated felony since the offense would be a felony under federal law).

[176] 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).

[177] 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).

[178] 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).

[179] Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. Jan. 26, 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).

[180] Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990) (state offense must “include all of the elements of an offense for which an alien ‘could be convicted and punished’ under the cited federal laws”).  Legislative history shows that Matter of Barrett was codified at INA § 101(a)(43)(B), the drug trafficking aggravated felony definition.  Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992); Matter of LG, 21 I. & N. Dec. 89 (BIA 1994).  The exception to this rule is that the state statute need not include the federal jurisdictional element.  Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002).

[181] Steele v. Blackman, 236 F.3d 130 (3d Cir. Jan. 2, 2001) (second New York misdemeanor conviction for distribution of 30 grams or less of marijuana without remuneration was not for a hypothetical offense punishable as a felony under the federal Controlled Substances Act and therefore was not an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for immigration purposes).