(D)  Retroactive Application of Yanez Rule to Prior Convictions Entered In Reliance on Previous Rule Violates Due Process.  One district court has held that retroactive application of the BIA decision in Matter of Yanez-Garcia[491] violated the Fourteenth Amendment Due Process clause for a noncitizen who relied upon the former rule of Matter of KVD,[492] 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.[493]

[491] 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 single possession offense can qualify as aggravated felony drug trafficking crime).

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

[493] Pradith v. Ashcroft, CV 03-1304-BR (D.C. Ore. 2003) (unpublished).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
CD4:19.58;SH:7.66, 8.3;AF:5.40, A.18, B.3 Carachuri-Rosendo v. Holder, 130 S.Ct 2577 (Jun. 14, 2010) (a second or subsequent conviction for simple possession of a controlled substance can qualify as a drug trafficking aggravated felony only if the fact of the first conviction is proven or admitted beyond a reasonable doubt in the course of the criminal proceeding regarding the second possession charge).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
Carachuri-Rosendo v. Holder, 130 S.Ct 2577 (Jun. 14, 2010) ("We explained in Lopez that "ordinarily trafficking means some sort of commercial dealing." Id. at 53-54, 127 S.Ct. 625 (citing Black's Law Dictionary 1534 (8th ed.2004)). And just as in Lopez, "[c]ommerce ... was no part of" Carachuri-Rosendo's possessing a single tablet of Xanax, "and certainly it is no element of simple possession." 549 U.S. at 54, 127 S.Ct. 625. As an initial matter, then, we observe that a reading of this statutory scheme that would apply an "aggravated" or "trafficking" label to any simple possession offense is, to say the least, counterintuitive and "unorthodox," ibid.").

AGGRAVATED FELONY - CONTROLLED SUBSTANCES - SIMPLE POSSESSION - SENTENCING CONTEXT
Tostado-Tostado v. Carlson, __ S.Ct. __, 2007 WL 35906 (Jan. 8, 2007) ("The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Lopez v. Gonzales, 549 U.S. __, 127 S. Ct. 625 (2006)), vacating Tostado v. Carlson, 437 F.3d 706 (8th Cir., 2006).

AGGRAVATED FELONY - DRUG TRAFFICKING - STATE FELONY CONVICTION OF SIMPLE POSSESSION IS NOT AN AGGRAVATED FELONY DRUG TRAFFICKING CONVICTION UNLESS IT WOULD BE A FELONY IF PROSECUTED UNDER FEDERAL LAW
Lopez v. Gonzales, 549 U.S. ___ , 127 S.Ct. 625 (Dec. 5, 2006) (South Dakota felony conviction of aiding and abetting another to possess cocaine, in violation of S.D. Codified Laws 22-42-5, 22-6-1, 22-3-3, did not constitute a "felony punishable under the Controlled Substances Act," under 18 U.S.C. 924(c)(2), and therefore did not constitute an aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of removal and disqualification from eligibility for cancellation of removal, since it was not punishable as a felony under federal law). http://laws.lp.findlaw.com/us/000/05547.html

The impact of this decision will be felt primarily in those states in which possessory offenses are punishable as felonies under state law. See, e. g., S. D. Codified Laws 22.42.5 (2004), 22.6.1 (2005 Supp.); Tex. Health & Safety Code Ann. 481.115 (West 2003); Tex. Penal Code Ann. 12.32.12.35 (West 2003). "Indeed, several States treat possession of less than 30 grams of marijuana as a felony. See Fla. Stat. 893.13(6)(a).(b), 775.082(3)(d) (2006) (punishing possession of over 20 grams of marijuana as a felony); Nev. Rev. Stat. 453.336(1), (2) (2004), 453.336(4), 193.130 (2003) (punishing possession of more than one ounce, or 28.3 grams, of marijuana as a felony); N. D. Cent. Code Ann. 19.03.1.23(6) (Lexis Supp. 2005), 12.1.32.01(4) (Lexis 1997) (same); Ore. Rev. Stat. 161.605(3) (2003), Act Relating to Controlled Substances, 33, 2005 Ore. Laws p. 2006 (same)." Lopez v. Gonzales, 549 U.S. ___, ___ (Dec. 5, 2006).

While this decision will benefit noncitizens with state felony simple possession convictions in those circuits previously holding them to be aggravated felony convictions, including the vast majority of circuits in the illegal-reentry sentence enhancement context, it is not without its drawbacks for some noncitizen respondents. The Lopez decision will subject a noncitizen defendant to deportation if his or her conduct was punishable as a felony under the federal Controlled Substances Act. "Accordingly, even if never convicted of an actual felony, an alien defendant becomes eligible for deportation based on a hypothetical federal prosecution. It is at least anomalous, if not inconsistent, that an actual misdemeanor may be considered an 'aggravated felony.'" Lopez v. Gonzales, 549 U.S. ___, ___ (Dec. 5, 2006) (Thomas, J. dissenting). While the argument is not precluded that in order to constitute an aggravated felony drug trafficking conviction, the state possession conviction must constitute both a felony under federal law, and be treated as a felony under state law, it appears inconsistent with the majority analysis in Lopez, and thus quite unlikely to be adopted.

AGGRAVATED FELONY - DRUG TRAFFICKING - STATE CONVICTIONS PUNISHING POSSESSION OFFENSES THAT WOULD BE FELONIES IF PROSECUTED UNDER FEDERAL LAW BECAUSE OF A PRIOR CONVICTION MAY CONSTITUTE AGGRAVATED FELONY DRUG TRAFFICKING CONVICTIONS
Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 n.6 (Dec. 5, 2006)(in dictum, the court stated: ". . . Congress did counterintuitively define some possession offenses as 'illicit trafficking.' Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in 924(c)(2), such as possession of cocaine base and recidivist possession, see 21 U. S. C. 844(a), clearly fall within the definitions used by Congress in 8 U. S. C. 1101(a)(43)(B) and 18 U. S. C. 924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute 'illicit trafficking in a controlled substance' or 'drug trafficking' as those terms are used in ordinary speech. But this coerced inclusion of a few possession offenses in the definition of 'illicit trafficking' does not call for reading the statute to cover others for which there is no clear statutory command to override ordinary meaning.")

     This language in Lopez raises a question whether the Ninth Circuit Corona-Sanchez rule remains valid, holding that a recidivist sentence enhancement is not counted for purposes of determining a potential or imposed sentence in an aggravated felony determination. There are a number of responses to this argument. First, no recidivist sentence enhancement was presented in Lopez. This casual reference therefore amounts to nothing more than dictum. The law is well-settled that an issue not raised, briefed, or argued has not been decided by the court. R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

     Second, the question in Lopez involved whether a state possession conviction, assessed on its elements under a categorical analysis, constituted an aggravated felony conviction. The question in Corona-Sanchez, however, related to whether a sentence imposed pursuant to a recidivist sentence enhancement had been imposed for the offense of conviction so as to constitute a sentence imposed for purposes of assessing whether a conviction constituted an aggravated felony conviction. In other words, Lopez involved whether a disposition constituted a conviction, whereas Corona-Sanchez concerned whether a sentence had been imposed for an offense or a sentence enhancement. These are different questions, interpreting different statutes. "Conviction" is defined in INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), whereas "sentence" is defined in INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A).

     Third, in assessing whether a state conviction falls within an immigration ground of deportation, using the categorical analysis, the elements of the state offense are compared with the elements of the federal deportation ground. In order to fall within the federal deportation ground under the Lopez analysis, the state conviction would have to have the prior conviction as an element of the state offense, as is the case with the petty theft with a prior offense, or an ex-felon in possession of a firearm. A second possession conviction would therefore not constitute a felony, under the Lopez analysis, unless the state prosecutor in fact pleaded and proved the prior conviction as an element of the offense, as would be required in federal court before the possession conviction would constitute a felony. Contra, 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).

     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, see 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)), 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. 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). Therefore, a second or conviction for simple possession of a controlled substance, under this analysis, constitutes a federal misdemeanor, see 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), and cannot constitute an aggravated felony for deportation purposes. 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). Other circuits disagree.

     Sentence Enhancement Sentences. A sentence enhancement does not constitute part of the criminal offense of which the defendant was convicted, and so cannot alter the essential elements of the offense of conviction for the purpose of determining whether a conviction constitutes a deportable offense. Montiel-Barraza v. INS, 275 F. 3d 1178 (9th Cir. 2002); see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998) (concluding that a penalty provision that simply authorizes a court to increase the sentence for recidivism does not define a separate crime). See also United States v. Portillo-Mendoza, 273 F.3d 1224 (9th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) (New York enhancement statute applied to defendant due to previous drunk driving convictions did not convert drunk driving offense to a crime of violence); Bazan-Reyes v. INS, 256 F.3d 600, 612 (7th Cir. 2001) (same); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); Matter of Rodriguez-Cortez, 20 I. & N. Dec. 587 (BIA 1992) (firearms enhancement did not convert non-firearms offense into a firearms offense); but see Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001). The sentence imposed upon a recidivist sentencing enhancement or recidivist treatment therefore does not count towards the sentence for immigration purposes, at least in the Ninth Circuit. United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003) (Arizona conviction of second-offense possession of marijuana, in violation of Ariz. Rev. Stat. 13-901.01(A), (E), was not an aggravated felony as a drug trafficking conviction pursuant to INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), under U.S.S.G. 2L1.2(b)(1)(C), for purposes of an eight-level sentence enhancement for illegal re-entry, since it was not punishable by more than one years imprisonment under applicable state law or under federal law since the greater sentence available on account of the prior was not considered to be available for the offense, but rather for the sentence enhancement), following United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2001) (en banc); United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona Revised Statute 13-1805(I), a class 4 felony punishing anyone "who commits shoplifting and has previously committed or been convicted within the past five years of two or more offenses involving burglary, shoplifting, robbery, [etc.]," may not be an aggravated felony offense under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), in light of United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), since the offense is a felony only on the basis of a prior conviction-based sentence). But see United States v. Cruz-Guerrero, 194 F.3d 1029 (9th Cir. 1999) (aggregating term for offense and firearm enhancement for sentencing guideline purposes); United States v. Ortiz-Gutierrez, 36 F.3d 80 (9th Cir. 1994) (same). On the other hand, a non-recidivist based sentence enhancement, for example, one based on the defendants conduct, can transform a conviction into a felony conviction and increase the maximum possible punishment. United States v. Moreno-Hernandez, 397 F.3d 1248 (9th Cir. 2005) (post-Booker decision distinguishes Corona-Sanchez, and treats recidivist enhancements as being different than non-recidivist enhancements).

     The Ninth Circuit has established the rule that a sentence imposed pursuant to a recidivist sentence enhancement is not considered to constitute part of a sentence imposed, for determining whether a conviction qualifies as an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation. United States v. Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002) (en banc); 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 Corona-Sanchez v. INS, 291 F.3d 1201 (9th Cir. 2002)(en banc). Thus, where the base offense was petty theft under California law, with a maximum of six months in county jail, and the defendant received a two-year prison sentence under a statute that enhanced the sentence on account of a prior conviction, only the six-month sentence that could have been imposed for misdemeanor petty theft counted when determining whether a sentence of one year or more had been imposed on the defendant for purposes of deciding whether the current offense was an aggravated felony.

     This rule was extended to an Arizona case in which misdemeanor possession of marijuana was elevated to a felony allowing for a possible state prison sentence in excess of one year, since the defendant had suffered a prior conviction. The Ninth Circuit held that this second-offense conviction for possession of marijuana constituted only a misdemeanor with a one-year maximum, for purposes of determining whether it constituted a felony conviction that qualified as a "drug trafficking" offense under 18 U.S.C. 924(c), since the underlying offense itself was only a misdemeanor and the felony status resulting from the recidivist sentence enhancement was ignored for this purpose. United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003) (Arizona second conviction of possession of marijuana, in violation of A.R.S. 13-901.01(A), (E), did not constitute an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation, because the first-offense maximum punishment was not in excess of one year and therefore did not qualify as a felony under the federal definition, because the increased sentence resulting from the prior conviction was not considered to be "for" the "offense," but was rather a recidivist sentence enhancement that could not be considered for that purpose under United States v. Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002) (en banc)).

     In United States v. Arellano-Torres, 303 F.3d 1173, 1178 (9th Cir. 2002), the court recognized that the holding of Corona-Sanchez applied equally to 21 U.S.C. 844 (imposing greater sentence upon a subsequent simple possession conviction).

     The Seventh Circuit sub silentio disagrees, counting a felony as a felony even though it is a felony solely because of a recidivist sentence enhancement. Ali v. Ashcroft, 395 F.3d 722 (7th Cir. Jan. 11, 2005) (Illinois conviction of possession with intent to distribute THC, in violation of Wis. Stat. 961.41(1m)(h)(1), was punishable as a felony under state law because of an unrelated prior conviction, and therefore was an aggravated felony under the drug-trafficking portion of INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), even though the state felony characterization depended on a recidivist enhancement), failing to discuss United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

AGGRAVATED FELONY - DRUG TRAFFICKING - STATE FELONY CONVICTION OF SIMPLE POSSESSION IS NOT AN AGGRAVATED FELONY DRUG TRAFFICKING CONVICTION UNDER "ILLICIT TRAFFICKING" PRONG SINCE THERE WAS NO COMMERCIAL ELEMENT TO THE OFFENSE
Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 (Dec. 5, 2006) (South Dakota felony conviction of aiding and abetting another to possess cocaine, in violation of S.D. Codified Laws 22-42-5 (1988), 22-6-1 (Supp. 1997), 22-3-3 (1988), did not constitute an aggravated felony drug trafficking conviction, under the "illicit trafficking" portion of INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of removal and disqualification from eligibility for cancellation of removal, since the offense of conviction contained no element of commercial trafficking: "There are a few things wrong with this argument, the first being its incoherence with any commonsense conception of "illicit trafficking," the term ultimately being defined. The everyday understanding of "trafficking" should count for a lot here, for the statutes in play do not define the term, and so remit us to regular usage to see what Congress probably meant. FDIC v. Meyer, 510 U. S. 471, 476 (1994). And ordinarily "trafficking" means some sort of commercial dealing. See Black's Law Dictionary 1534 (8th ed. 2004) (defining to "traffic" as to "trade or deal in (goods, esp. illicit drugs or other contraband)"); see also Urena-Ramirez v. Ashcroft, 341 F. 3d 51, 57 (CA1 2003) (similar definition); State v. Ezell, 321 S. C. 421, 425, 468 S. E. 2d 679, 681 (App. 1996) (same). Commerce, however, was no part of Lopez's South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime. Nor is the anomaly of the Government's reading limited to South Dakota cases: while federal law typically treats trafficking offenses as felonies and non-trafficking offenses as misdemeanors, several States deviate significantly from this pattern.").

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION CANNOT CONSTITUTE AGGRAVATED FELONY DRUG TRAFFICKING CONVICTION IN ILLEGAL REENTRY SENTENCING CONTEXT SINCE IT CANNOT DO SO IN THE IMMIGRATION CONSTEXT, SINCE CRIMINAL STATUTES MUST BE INTERPRETED CONSISTENTLY REGARDLESS OF CONTEXT
Toledo-Flores v. United States, 549 U.S. ___, 127 S.Ct. 638 (Dec. 5, 2006) (writ of certiorari is dismissed as improvidently granted in companion case to Lopez v. Gonzales, 549 U.S. ___ (Dec. 5, 2006), holding in an immigration context that a state felony conviction of possession of a controlled substance did not constitute an aggravated felony drug trafficking conviction because it would have been a misdemeanor conviction if prosecuted in federal court). http://laws.lp.findlaw.com/us/000/057664.html

The Supreme Court granted certiorari in Torres-Flores as a companion case, presenting the same question in the illegal-reentry sentence enhancement context. The same day it decided Lopez, the court dismissed the writ of certiorari in Torres-Flores as improvidently granted. The logical inference is that the decision in Lopez settled the question in both contexts, and it was therefore unnecessary to decide Torres-Flores. This is consistent with the Supreme Court's statements in Leocal, indicating it was obligated to interpret a criminal statute consistently whether the issue arose in a criminal or noncriminal context. Leocal v. Ashcroft, 543 U.S. 1, 12 n.8 (November 9, 2004)(applying criminal rule of lenity in interpreting 18 U.S.C. 16, even though question arose in an immigration context, because "we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context . . . ."), citing United States v. Thompson/Center Arms Co., 504 U.S. 505, 517-518, 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992) (plurality opinion) (applying the rule of lenity to a tax statute, in a civil setting, because the statute had criminal applications and thus had to be interpreted consistently with its criminal applications). Since Lopez involved the interpretation of 18 U.S.C. 924(c), which is clearly a criminal statute, the Supreme Court would be compelled to reach exactly the same decision in the criminal context as it did in the immigration context, and there was no need to decide Torres-Flores.

AGGRAVATED FELONY - DRUG TRAFFICKING - ILLICIT TRAFFICKING CONVICTIONS MUST BE FELONIES IF PROSECUTED UNDER FEDERAL LAW
Lopez v. Gonzales, 549 U.S. ___,127 S.Ct. 638 n.8 (Dec. 5, 2006) ("[T]he parties agree that Congress added the provision that both state and federal offenses qualify as aggravated felonies to codify the BIA's decision in Matter of Barrett, 20 I. & N. Dec. 171 (1990), see also H. R. Rep. No. 101.681, pt. 1, p. 147 (1990) (noting that the provision reflects congressional approval of Barrett), our enquiry requires looking beyond Congress's evident acceptance of Barrett. In Barrett, the BIA held only that the phrase 'drug trafficking crime' includes state 'crimes analogous to offenses under the Controlled Substances Act,' Barrett, supra, at 177, 178, without specifying whether a state crime must be 'analogous' to a CSA felony, as opposed to a CSA misdemeanor, to count.").

AGGRAVATED FELONY - DRUG TRAFFICKING - CONVICTION OF GRATUITOUS DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA DOES NOT CONSTITUTE AGGRAVATED FELONY DRUG TRAFFICKING CRIME BECAUSE FEDERAL CONTROLLED SUBSTANCES ACT PROVIDES IT IS PUNISHABLE AS A FEDERAL MISDEMEANOR
Lopez v. Gonzales, 549 U.S. ___127 S.Ct. 638 n.8 (Dec. 5, 2006) (Congress codified Matter of Barrett, 20 I. & N. Dec. 171 (1990), in the aggravated felony drug trafficking definition, which requires a state conviction to be a felony punishable by more than one year in custody to constitute an aggravated felony, which supports an argument that a state or federal conviction of gratuitous distribution of a "small amount" of marijuana cannot be an aggravated felony because 21 U.S.C. 841(b)(4) requires it to be punished as a misdemeanor).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - MINNESOTA
Under Minnesota law, a second conviction of possession of a controlled substance has a recidivist sentencing enhancement, providing for a mandatory sentence of six months. Minnesota law explicitly provides that "a disposition" under Minn. Stat. 152.18 (deferred adjudication) is a "prior controlled substance offense" for purposes of applying the recidivist sentencing enhancement. This is analogous to the Federal First Offender Act, 18 U.S.C. 3607. Under federal law, a first disposition under 18 U.S.C. 3607 disqualifies the defendant from FFOA treatment for the second offense only if the first disposition has become final prior to the commission of the second offense. Immigration counsel can argue that a state law disposition under a first offender program similar to the FFOA has not become final for purposes of 21 U.S.C. 844(a), where the offender is still on probation and has not had the charge dismissed or adjudication of guilt entered. But see United States v. Varela, 993 F.2d 686 (9th Cir. 1993) (an offense that is not expunged before the second offense was committed is "final" under federal law, for purposes not related to drug recidivist enhancements, even if it could have been expunged). This decision, however, was in a case in which the plea had been accepted, and imposition of sentence was stayed, rather than not a stayed adjudication of guilt. Counsel could argue this difference should change the outcome. Carachuri should control when it is decided by the United States Supreme Court.

BIA

AGGRAVATED FELONY"CONTROLLED SUBSTANCES"DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA WITHOUT REMUNERATION
Matter of Castro Rodriguez, 25 I&N Dec. 698 (BIA 2012) (noncitizen bears burden to establish state conviction of intent to distribute involved a "small amount of marihuana for no remuneration within the meaning of 21 U.S.C. 841(b)(4), which the noncitizen may establish by presenting evidence outside of the record of conviction), Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), clarified.

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSE " DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012) (remanding case to IJ to allow respondent to present factual evidence that Virginia conviction of possession with the intent to give or distribute less than one-half ounce of marijuana, in violation of Va. Rev. Stat. 18.2-248.1(a)(1), involved only gratuitous distribution of a small amount of marijuana); following Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (the federal felony conspiracy to distribute a controlled substance offense, 21 U.S.C. 841(a)(1), (b)(1)(D), allows for the consideration of evidence outside the record of conviction for the purpose of reducing the felony offense to a misdemeanor); citing United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003). NOTE: The BIA relied upon Nijhawan v. Holder, 557 U.S. 29 (2009), to find the circumstance-specific approach is appropriate to determine whether a conviction of possession of marijuana with intent to distribute involved a small amount of marijuana and no remuneration. The BIA stated that the less than 30 grams of marijuana exception, may, in general, serve as a useful guidepost in determining whether an amount is small. Matter of Castro Rodriguez, 25 I&N Dec. at 703.

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.

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Matter of Thomas, 24 I.& N. Dec. 416, 418-419 (BIA Dec. 13, 2007) (Florida conviction for simple possession, in violation of Fla. Stat. 893.13(6)(a), which is a second possession conviction for the defendant, cannot constitute an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for immigration purposes, where there is no evidence that the court imposed additional punishment on basis of, or was even aware of, prior possession conviction; applying Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007) to case arising in a circuit without caselaw directly on this issue). NOTE: the BIA also noted that it did not appear that Florida law allowed the court to impose any additional punishment on the basis of recidivism.

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Matter of Thomas, 24 I.& N. Dec. 416, 418-419 (BIA Dec. 13, 2007) (state conviction for possession cannot constitute an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2000), unless it was committed after the first possession conviction became final by exhaustion of all avenues of direct appellate attack), citing United States v. Brazel, 102 F.3d 1120, 1163 (11th Cir. 1997) (holding that a prior conviction is "final" for purposes of the CSAs recidivism provisions when all avenues of direct appellate attack have been exhausted); United States v. Lippner, 676 F.2d 456, 467 (11th Cir. 1982).

POST-CONVICTION - EFFECT OF EXPUNGEMENT
Matter of Thomas, 24 I.& N. Dec. 416, 419 (BIA Dec. 13, 2007) (second possession conviction can constitute aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2000), even if court expunged first state conviction pursuant to a States rehabilitative procedures), citing United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006); United States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003); United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993).

AGGRAVATED FELONY - DRUG TRAFFICKING - QUESTION WHETHER SECOND POSSESSION CONSTITUTES AN AGGRAVATED FELONY IS A CRIMINAL LAW QUESTION ON WHICH BIA MUST DEFER TO SUPREME COURT AND RELEVANT CIRCUIT COURT DECISIONS
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA Dec. 13, 2007) (en banc) (whether a State drug conviction constitutes an "aggravated felony" by virtue of its correspondence to the Federal felony of "recidivist possession" is a criminal law question that must be determined in accordance with the decisional authority of the Supreme Court and the relevant Federal circuit courts of appeals, where such authority exists).

AGGRAVATED FELONY - DRUG TRAFFICKING - QUESTION WHETHER SECOND POSSESSION CONSTITUTES AN AGGRAVATED FELONY IS A CRIMINAL LAW QUESTION ON WHICH BIA MUST DEFER TO SUPREME COURT AND RELEVANT CIRCUIT COURT DECISIONS - RULE IN CIRCUITS THAT HAVE NOT YET DECIDED THE QUESTION
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 391, 394 (BIA Dec. 13, 2007) (en banc) (in circuits that have not yet decided the issue, BIA will not treat a State conviction for simple possession as an aggravated felony on the basis of recidivism unless the defendant's status as a recidivist drug offender was either admitted by the defendant or determined by a judge or jury in connection with his prosecution for that simple possession offense).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - FIFTH CIRCUIT RULE
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 391, 394 (BIA Dec. 13, 2007) (en banc) (Texas conviction for possession of less than 28 grams of alprazolam, in violation of Texas Health & Safety Code 481.117(b), qualifies as an "aggravated felony" conviction under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), in cases arising in the Fifth Circuit, because it was committed after the respondent's prior State "conviction" for a "drug, narcotic, or chemical offense" became "final" within the meaning of 21 U.S.C. 844(a), when all avenues of direct appellate review had been exhausted and respondent's status as a recidivist drug offender was either admitted by respondent or determined by a judge or jury in connection with a prosecution for that simple possession offense), following United States v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005), cert. denied, 546 U.S. 1137 (2006) (alternate holding that illegal reentry defendant's 2001 Colorado conviction for codeine possession qualified as a valid factual predicate for an "aggravated felony" illegal reentry sentence enhancement because the underlying offense was a "felony" under both State and Federal law, since it could have been punished under 21 U.S.C. 844(a) as a felony with a penalty of up to two years imprisonment), citing United States v. Simpson, 319 F.3d 81, 85-86 (2d Cir. 2002), superseded on other grounds by Lopez v. Gonzales, 127 S. Ct. 625, 633 (2006); see also United States v. Castro-Coello, 474 F. Supp. 2d 853, 859-62 (S.D. Tex. 2007), affd sub nom. United States v. Molina-Gonzales, 234 Fed. Appx. 319 (5th Cir., July 17, 2007) (No. 07-40279) (per curiam); see also United States v. Lopez-Molina, 494 F. Supp. 2d 517, 521-22 (W.D. Tex. 2007); United States v. Rodriguez-De Leon, 492 F. Supp. 2d 677, 680-82 (W.D. Tex. 2007).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - BIA RULE IN CIRCUITS THAT HAVE NOT YET DECIDED THE ISSUE
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 391 (BIA Dec. 13, 2007) (en banc) ("guidance," rather than holding) ("Importantly, however, all State recidivism prosecutions must correspond to the CSAs treatment of recidivism by providing the defendant with notice and an opportunity to be heard on whether recidivist punishment is proper. Oyler v. Boles, 368 U.S. 448, 452-53 (1962). In our view, these minimal requirements governing findings of recidivism are part and parcel of what it means for a crime to be a "recidivist" offense. Hence, we conclude - absent circuit law to the contrary - that a State conviction cannot "proscribe conduct punishable as" recidivist possession unless the State successfully sought to impose punishment for a recidivist drug conviction. This means that the respondents status as a recidivist drug possessor must have been admitted or determined by a court or jury within the prosecution for the second drug crime. It is not necessary, however, for the structure of the underlying State law to be comparable to the structure of the CSA. Lopez v. Gonzales, supra, requires a focus on a counterpart "offense," not a counterpart law. Thus, it is our understanding that a conviction under a particular States general recidivist statute may correspond to "recidivist possession" under the CSA, provided the relevant prior conviction was for a drug offense that had become "final" as of the date when the second offense was committed." (Footnote omitted.)).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - OPEN QUESTIONS UNDER BIA ANALYSIS
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 394 n.10 (BIA Dec. 13, 2007) (en banc) ("We do not now decide whether State criminal procedures must have afforded the alien an opportunity to challenge the validity of the first conviction in a manner consistent with 21 U.S.C. 851(c). See Steele v. Blackman, supra. Nor are we now concerned with the timing of notice, or with the burdens and standards of proof applicable to a defendants challenge to his status as a recidivist. We also reserve the question whether facts about the nature, timing, or finality of prior convictions must be established categorically or otherwise.").

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007) (absent controlling circuit court authority to the contrary, a noncitizens state conviction for a second or subsequent possession will not be considered an aggravated felony on the basis of recidivism unless the noncitizens status as a recidivist was either admitted by the noncitizen at plea or determined by a judge or jury in connection with a prosecution for the subsequent simple possession offense).

Note: this results in the following circuit court breakdown -

First Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Berhe v. Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006).

Second Circuit: a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. United States v. Simpson, 319 F.3d 81, 85-86 (2nd Cir. 2002).

Third Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Steel v. Blackman, 236 F.3d 130, 137-38 (3d Cir. 2001).

Fourth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007); Matter of Thomas, 24 I. & N. Dec. 414 (BIA 2007).

Fifth Circuit: a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. United States v. Sanchez-Villalobos, 412 F.3d 572, 576-577 (5th Cir. 2005).

Sixth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the first conviction was not yet final on the date of the second conviction. United States v. Palacios-Suarez, 418 F.3d 692, 700 (6th Cir. 2005).

Seventh Circuit: a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. United States v. Pacheco-Diaz, 506 F.3d 545-548-549 (7th Cir. 2007).

Eighth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007); Matter of Tomas, 24 I. & N. Dec. 414 (BIA 2007).

Ninth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004).

Tenth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007); Matter of Tomas, 24 I. & N. Dec. 414 (BIA 2007).

Eleventh Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007); Matter of Tomas, 24 I. & N. Dec. 414 (BIA 2007).

FLUNITRAZEPAM CONSTITUTE AGGRAVATED FELONIES, EVEN IF THEY ARE MISDEMEANOR CONVICTIONS, BECAUSE THEY WOULD BE PUNISHABLE AS FELONIES IF PROSECUTED UNDER FEDERAL LAW AGGRAVATED FELONY - DRUG TRAFFICKING - STATE CONVICTIONS PUNISHING POSSESSION IN EXCESS OF FIVE GRAMS OF COCAINE BASE OR ANY AMOUNT OF THE DATE-RAPE DRUG
Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 (Dec. 5, 2006) (in dictum, the state convictions punishing possession in excess of five grams of cocaine base or any amount of the date-rape drug flunitrazepam constitute aggravated felonies, even if they are misdemeanor convictions, because they would be punishable as felonies under 21 U.S.C. 844(a) if prosecuted under federal law: ". . . the [federal Controlled Substances Act] punishes drug possession offenses as misdemeanors (that is, by one year's imprisonment or less, cf. 18 U. S. C. 3559(a)), see 21 U. S. C. 844(a) (providing for "a term of imprisonment of not more than 1 year" for possession offenses except for repeat offenders, persons who possess more than five grams of cocaine base, and persons who possess flunitrazepam), and trafficking offenses as felonies, see [21 U.S.C.] 841 (2000 ed. and Supp. III).").

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).

AGGRAVATED FELONY - DRUG TRAFFICKING - DISTRIBUTION
Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir. Sept. 26, 2006) (Massachusetts conviction of misdemeanor possession of marijuana with intent to distribute, in violation of Mass. Gen. Laws ch. 94C, 32C(a), constituted an aggravated felony drug trafficking conviction under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), despite its classification as a misdemeanor under state law, because it had an element of distribution and would therefore have been a felony if it had been prosecuted in federal court).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION OF CONTROLLED SUBSTANCES
Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir. Sept. 26, 2006) (Massachusetts 1996 conviction of misdemeanor simple possession of crack cocaine under Mass. Gen. Laws ch. 94C, 34, and Massachusetts 2003 misdemeanor conviction of simple possession of crack cocaine, were not aggravated felony drug trafficking convictions under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), not because they were classified as misdemeanors under state law, but because they were simple possession offenses and the prosecution, in the second case, did not plead and prove the prior possession conviction, and the record of conviction in the second case does not contain facts that would convert it from a misdemeanor to a felony conviction if it had been prosecuted in federal court).

Second Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION CONVICTION HELD NOT TO BE AN AGGRAVATED FELONY
United States v. Ayon-Robles, ___ F.3d ___, 2009 WL 448184 (2d Cir. Feb. 24, 2009) (per curiam) (California second conviction of simple possession of a controlled substance did not constitute an aggravated felony, under INA 101(a)(43)(B), for illegal re-entry sentencing purposes), following Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008) (second felony conviction for simple drug possession was not an aggravated felony for purposes of the Immigration and Nationality Act of 1990, 8 U.S.C. 1101(a)(43)(B), where the noncitizen did not admit the prior in being convicted a second time).

AGGRAVATED FELONY - DRUG TRAFFICKING- GRATUITOUS DISTRIBUTION OF A SMALL AMOUNT OF MARIHUANA
Martinez v. Mukasey, 551 F.3d 113 (2d Cir. Dec. 18, 2008) (New York conviction for criminal sale of marihuana in the fourth degree, in violation of NYPL 221.40, is not categorically a drug trafficking aggravated felony, since the offense punishes non-remunerative distribution of as little as two grams of marijuana; the minimum conduct analysis applies, and the Government, not the respondent, bears the burden of proving the conviction is an aggravated felony).

NOTE: This case implicitly disagrees with Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (respondents burden to show conviction was for distribution of a small amount of marijuana without remuneration).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION CONVICTION NOT AGGRAVATED FELONY
Alsol v. Mukasey, 548 F.3d 207 (2d Cir. Nov. 14, 2008) (New York conviction for simple possession, in violation of New York Penal Law 220.03, is not an aggravated felony, even though it was a subsequent conviction; "second conviction for simple controlled substance possession under state law is not a felony under the Controlled Substances Act because the offense of conviction does not proscribe conduct punishable as a felony as it does not correspond in any meaningful way with the federal crime of recidivist possession even if it could have been prosecuted in state court as a recidivist offense. We further clarify that our decision in United States v. Simpson, 319 F.3d 81 (2d Cir.2002), did not hold to the contrary.").

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.)

AGGRAVATED FELONY " DRUG TRAFFICKING " DISTRIBUTION OF MARIJUANA
Catwell v. Attorney General, 623 F.3d 199 (3d Cir. Oct. 13, 2010) (Pennsylvania conviction of possession with intent to distribute marijuana, in violation of 35 Pa. Stat. Ann. 780-113(a)(30), involved 120.5 grams, which was more than a small amount, so the BIA correctly concluded that the conviction constituted a drug trafficking aggravated felony, disqualifying petitioner from eligibility for cancellation of removal).

AGGRAVATED FELONY - DRUG TRAFFICKING - DRUG POSSESSION AND LESSER OFFENSES - DISTRIBUTION OF A SMALL AMOUNT OF MARIJUANA
Evanson v. Attorney General, 550 F.3d 284 (3d Cir. Dec. 19, 2008) (Pennsylvania conviction for violation of 35 Pa. Stat. Ann. 780-113, manufacture, deliver, or possess with an intent to manufacture or deliver a controlled substance, to wit: marijuana, is not necessarily an aggravated felony because the statute includes distribution of a small amount of marijuana without remuneration, which is neither a federal felony, nor a drug trafficking offense), following Steele v. Blackman, 236 F.3d 130, 137 (3d Cir.2001).

NOTE: the BIA, in Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), disagreed, finding that the "gratuitous distribution of a small amount of marijuana" statute was an affirmative defense, which the defendant must prove. Counsel can argue that, in the case of a state conviction, there is no such statutory exception and defense counsel in state court would have had no reason to submit proof that only a small amount was involved. Therefore, to require that this extra showing have been made before the state court is unreasonable. Thanks to Jonathan Moore.

AGGRAVATED FELONY - DRUG TRAFFICKING - DISTRIBUTION
Jeune v. Attorney Gen. of the U.S., 476 F.3d 199 (3d Cir. Feb. 20, 2007) (Pennsylvania conviction for violation of 35 Pa. Cons. Stat. Ann. 780-113(a)(30), manufacture, delivery, or possession with intent to manufacture or deliver, of a controlled substance, is not categorically an "aggravated felony" drug trafficking crime because the offense may be committed for personal use, and is not necessarily an offense punishable as a felony under federal law, since the offense may be violated by distribution of a small amount of marijuana without remuneration, which is treated a misdemeanor under 21 U.S.C. 841(a)(1)), following Garcia v. Attorney General of the United States, 462 F.3d 287 (3d Cir.2006) (conviction of violating 35 Pa. Cons.Stat.Ann. 780-113(a)(30) is not categorically an aggravated felony, since not every violation of the manufacturing provision involves trading or dealing, as there may be circumstances in which a defendant simply manufactured drugs for his own personal use).

Fifth Circuit

AGGRAVATED FELONIES " DRUG TRAFFICKING " CERT GRANTED
Moncrieffe v. Holder, 662 F.3d 387 (5th Cir. Nov. 8, 2011), cert. granted, No. 11-702 (Apr. 2, 2012). Note: The Supreme Court will decide whether a state conviction under a state statute that includes distribution of a small amount of marijuana without remuneration is a drug trafficking aggravated felony, even where the record of conviction does not establish that the noncitizen was convicted of an offense that would constitute a federal felony.

CONTROLLED SUBSTANCES - LARGE QUANTITY
United States v. Betancourt, __ F.3d __ (5th Cir. Oct. 9, 2009) (federal conviction under 21 U.S.C.A. 841(a)(1), (b)(1)(B), for possession of more than 100 kilograms of marijuana does not require proof beyond a reasonable doubt that defendant knew the type and quantity of drugs in his possession).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - SECOND STATE DRUG CONVICTION NOT AGGRAVATED FELONY UNDER GUIDELINES BECAUSE PRIOR NOT SHOWN TO HAVE BEEN FINAL PRIOR TO COMMISSION OF SECOND OFFENSE
United States v. Andrade-Aguilar, 570 F.3d 213 (5th Cir. May 27, 2009) (defendant's first state drug possession conviction was not "final" before commission of second possession offense, and thus second offense could not be aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), since it could not have constituted felony conviction if it had been prosecuted in federal court, for purposes of imposing a sentence enhancement under USSG 2L1.2(b)(1) for illegal reentry; "to show finality, the Government was required to show by a preponderance of the evidence both that (1) Andrades July conviction was 'no longer subject to examination on direct appeal' within the meaning of Morales, and (2) that it was not subject to discretionary review by any court."); see United States v. Morales, 854 F.2d 65, 69 (5th Cir. 1988); Smith v. Gonzales, 468 F.3d 272, 277-78 (5th Cir. 2006) (discretionary review requirement).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. Jun. 4, 2008) (California conviction of sale of tar heroin, in violation of Health & Safety Code 11352, constituted a drug trafficking aggravated felony for illegal re-entry sentencing purposes; although misdemeanor possessory offense is not an aggravated felony by itself, because the conviction was a misdemeanor, defendants prior drug conviction made the conviction a felony under the hypothetical federal prosecution analysis; court did not address argument that prior must be proven in subsequent conviction), following United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005) (second state conviction of possession of a controlled substance constituted an aggravated felony, triggering an eight-level enhancement of an illegal reentry sentence, because it "could have been punished under [21 U.S.C.] 844(a) as a felony with a penalty of up to two years imprisonment).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
Salazar-Regino v. Trominski, __ F.3d __, 2007 WL 457992 (5th Cir. Feb. 14, 2007) (vacating prior decision in light of Lopez v. Gonzales, 549 U.S. ___, 127 S. Ct. 625 (2006), and remanding to BIA).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION CONVICTION NOT AN AGGRAVATED FELONY
United States v. Estrada-Mendoza, 472 F.3d 689, 2007 WL 6583 (5th Cir. Jan. 3, 2007) (Texas conviction of possession of a controlled substance, did not warrant 8-level sentence enhancement for illegal reentry after deportation, since it would not constitute a felony if prosecuted under federal law, and was therefore not an aggravated felony drug trafficking offense under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Smith v. Gonzales, ___ F.3d ___ (5th Cir. Oct. 24, 2006) (second state misdemeanor conviction for possession of marijuana did not qualify as an "aggravated felony" for immigration purposes because second possession only becomes a felony under federal law upon conviction of a second offense after conviction of a prior simple possession; in this case, there was no effective prior conviction under 21 U.S.C. 844(a) because the first conviction was not yet final). http://caselaw.lp.findlaw.com/data2/circs/5th/0660020cv0p.pdf

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Smith v. Gonzales, ___ F.3d ___ (5th Cir. Oct. 24, 2006) (second state misdemeanor conviction for possession of marijuana did not qualify as an "aggravated felony" for immigration purposes because second possession only becomes a felony under federal law upon conviction of a second offense after conviction of a prior simple possession; in this case, there was no effective prior conviction under 21 U.S.C. 844(a) because the first conviction was not yet final). http://caselaw.lp.findlaw.com/data2/circs/5th/0660020cv0p.pdf

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION CONVICTION CANNOT CONSTITUTE FELONY IN FEDERAL COURT
United States v. Arnold, 467 F.3d 880, 886-87 (5th Cir. 2006) (a federal judge has no authority to impose a felony sentence on a recidivist convicted of a second possession offense under the CSA unless, prior to trial or plea, the prosecutor filed and served an "enhancement information" pursuant to 21 U.S.C. 851(a) (2000), the purpose of which is to provide the defendant with notice and an opportunity to review allegations of previous convictions for accuracy, to contest the use of such convictions, to create a trial strategy, and to evaluate the consequences of a jury verdict).

Sixth Circuit

AGGRAVATED FELONY - CONTROLLED SUBSTANCES - SECOND FELONY
Rashid v. Mukasey, 531 F.3d 438 (6th Cir. Jun. 26, 2008) (Michigan conviction of possession of a controlled substance, where the defendant has a prior conviction for the same offense, is not an aggravated felon under INA 101(a)(43)(B) for immigration purposes; "The first and only hypothetical that should be considered under the hypothetical federal felony approach is whether the crime that an individual was actually convicted of would be a felony under federal law. See Steele, 236 F.3d at 138 (explaining that the aggravated felony disability under the [INA] applies only if there has been a conviction of a felony). But by looking to facts not at issue in the crime of conviction in order to determine whether an individual could have been charged with a federal felony, our sister circuits, the IJ, and the BIA have considered an impermissible second hypothetical. We conclude that inclusion of the word hypothetical in the hypothetical federal felony approach does not provide the government with free reign to make ex-post determinations of what federal crimes an individual could hypothetically have been charged with where, as here, a prior drug-possession conviction was not at issue in the prosecution of the subsequent drug-possession offense.").

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION
United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. Jul. 22, 2005) (Ohio conviction for misdemeanor simple possession of a controlled substance, in violation of Ohio Rev.Code Ann. 2925.11(A), is not an aggravated felony for illegal re-entry sentencing purposes, because the offense is not a felony).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. Jul. 22, 2005) (Kentucky conviction for misdemeanor simple possession of a controlled substance, in violation of Ky.Rev.Stat. Ann. 218A.1415(1), is not an aggravated felony for illegal re-entry sentencing purposes, because the offense is not a felony).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. Jul. 22, 2005) (second state misdemeanor drug possession conviction was not a "hypothetical federal felony" for aggravated felony purposes, based upon recidivist provision of Controlled Substance Act (CSA), because the second offense occurred before the first drug possession conviction became final).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. Jul. 22, 2005) (sentencing decision rejecting idea that state misdemeanor simple possession conviction should be treated differently depending upon immigration or sentencing contexts, and adopting "hypothetical federal felony" approach in both immigration and sentencing contexts).

Seventh Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION CONVICTION
United States v. Pacheco-Diaz, ___ F.3d ___, 2008 WL 220692 (7th Cir. Jan. 29, 2008) (opinion on denial of rehearing) (Illinois second conviction of simple possession of marijuana constitutes a drug trafficking aggravated felony, within the meaning of 8 U.S.C. 1101(a)(43), for purposes of imposing a sentence enhancement for illegal reentry under USSG 2L1.2(b)(1)(C), because 21 U.S.C. 844(a) treats possessing marijuana that way if the defendant already has one marijuana-possession conviction on his record), disagreeing with Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007) (state marijuana-possession offense is an aggravated felony under 1101(a)(43) only if the noncitizen was charged as a recidivist in state court).

AGGRAVATED FELONY - SIMPLE POSSESSION - SECOND POSSESSION
United States v. Pacheco-Diaz, __ F.3d __, 2008 WL 220692 (7th Cir. Jan. 29, 2008) (petition for rehearing en banc denied; second simple possession conviction is an aggravated felony regardless of whether the first simple possession was charged as a prior in prosecution for the second offense). Note: one of the three judges dissented from this denial.

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
United States v. Pacheco-Diaz, __ F.3d __, 2007 WL 3071682 (7th Cir. Oct. 23, 2007) (Illinois conviction for felony simple possession of marijuana, in violation of 720 ILCS 550/4, is an aggravated felony for sentencing purposes where noncitizen has prior possession conviction; court rejected argument that state court must have proven prior conviction as an element of the second conviction, finding that it only needs to be hypothetically possible that the noncitizen could have been subject to the federal recidivist enhancement).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
Gutnik v. Gonzales, ___ F.3d ___, 2006 WL 3423144 (7th Cir. Nov. 29, 2006) (Illinois felony conviction of possession of heroin is not an aggravated felony under 8 U.S.C. 1227(a)(2)(A)(iii) because at the federal level that crime is punishable as a misdemeanor), following Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION NOT AGGRAVATED FELONY SINCE WOULD ONLY HAVE BEEN MISDEMEANOR IN FEDERAL COURT
Gonzalez-Gomez v. Achim, __ F.3d __, 2006 WL 708678 (7th Cir. Mar. 22, 2006) (state felony conviction for drug possession is not an aggravated felony drug trafficking offense where the offense would only be punishable as a misdemeanor under the applicable federal statute).
http://caselaw.lp.findlaw.com/data2/circs/7th/052728p.pdf

Lower Courts of Seventh Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION OF COCAINE Agate v. DHS, ___ F.
Supp. 2d ___, 2005 U.S. Dist. LEXIS 7676 (N.D. Ill. April 11, 2005) (Illinois conviction of possession of less than 15 grams of a substance containing cocaine found not to be an aggravated felony because conviction would have been only a misdemeanor if prosecuted in federal court), following Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004); Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996), and rejecting rule of Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 396 (BIA 2002).

AGGRAVATED FELONY - DRUG TRAFFICKING -- POSSESSION OF COCAINE
Gonzales-Gomez v. Achim, ___ F.Supp.2d ___ (N.D. Ill. April 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), 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).

Eighth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION OF CONTROLLED SUBSTANCES NOT AGGRAVATED FELONIES UNDER LOPEZ
Tostado v. Carlson, 481 F.3d 1012 (8th Cir. April 2, 2007) (Illinois convictions for the unlawful possession of cocaine and unlawful possession of cannabis are not aggravated felonies for immigration purposes), following Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625 (2006).

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).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION
United States v. Figueroa-Ocampo, __ F.3d __, 2007 WL 2104787 (9th Cir. July 24, 2007) (under the Supreme Court's recent decision in Lopez v. Gonzales, 127 S. Ct. 625 (2006), simple possession cannot be treated as an aggravated felony for sentencing purposes unless possession of the particular drug would be a felony if prosecuted under federal law).

AGGRAVATED FELONY - DRUG TRAFFICKING - LOPEZ STRENGTHENS ARGUMENT THAT STATE REHABILITATIVE RELIEF ANALOGOUS TO THE FEDERAL FIRST OFFENDER ACT DISQUALIFIES PRIOR CONVICTION FROM ACTING AS A PRIOR FOR THE PURPOSE OF ELEVATING MISDEMEANOR SIMPLE POSSESSION CONVICTION TO FEDERAL FELONY SECOND POSSESSION SO AS TO CONSTITUTE AN AGGRAVATED FELONY DRUG TRAFFICKING CONVICTION
United States v. Norbury, 492 F.3d 1012, ___ (9th Cir. Jun. 25, 2007) (determination of whether current controlled substances offense was committed after a prior conviction for a felony drug offense has become final, so as to enhance federal sentence under 21 U.S.C. 841(b)(1)((A)-(D) is made under federal law, not state law; under federal law: "An expunged or dismissed state conviction qualifies as a prior conviction if the expungement or dismissal does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - NINTH CIRCUIT RULE IN JEOPARDY?
Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004) (an adjudicator cannot consider recidivist sentencing enhancements when seeking to determine whether a State offense constitutes a drug trafficking aggravated felony); see Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 386 n.3 (BIA Dec. 13, 2007) (en banc) ("The rationale for this restrictive interpretation [in Ferreira], which seems in tension with Lopez v. Gonzales, supra, at 631 n.6, is subject to a Supreme Court challenge in a context different from the one now before us. United States v. Rodriquez, 464 F.3d 1072 (9th Cir. 2006), cert. granted, 128 S. Ct. 33 (2007) (No. 06-1646).").

Tenth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION CONVICTION CANNOT BE AGGRAVATED FELONY
Gradiz v. Gonzales, 490 F.3d 1206, ___ (10th Cir. Jun. 20, 2007) (Wyoming felony controlled substances conviction cannot constitute an aggravated felony as a "drug trafficking crime," under 18 U.S.C. 924(c)(2) ("any felony punishable under the Controlled Substances Act, 21 U.S.C. 801 et seq."), since Lopez v. Gonzales, 127 S.Ct. 625, 629 (2006), held that state felony convictions of whether crimes that are misdemeanors under federal controlled substances statutes but felonies under state law could not qualify as aggravated felonies under the aggravated felony definition), following United States v. Martinez-Macias, 472 F.3d 1216 (10th Cir. 2007); disapproving United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
United States v. Martinez-Macias, 472 F.3d 1216 (10th Cir. Jan. 3, 2007) (Kansas conviction for simple possession of cocaine is not an aggravated felony), following Lopez v. Gonzales, __ U.S. __, 127 S.Ct. 625 (Dec. 5, 2006).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
Gonzalez-Gonzalez v. Weber, ___ F.3d ___, 2006 WL 3791275 (10th Cir. Dec. 27, 2006) (state conviction of simple possession of cocaine held not to be an aggravated felony, for deportation purposes), following Lopez v. Gonzales, ___ U.S. ___, 2006 WL 3487031 (Dec. 5, 2006).

AGGRAVATED FELONY - DRUG TRAFFICKING - LOPEZ DECISION INTERPRETING STATUTE MUST BE APPLIED RETROACTIVELY
Gonzalez-Gonzalez v. Weber, ___ F.3d ___, 2006 WL 3791275 (10th Cir. Dec. 27, 2006) (Lopez v. Gonzales, ___ U.S. ___, 2006 WL 3487031 (Dec. 5, 2006), holding a state conviction of simple possession of cocaine cannot be an aggravated felony, for deportation purposes, must be applied retroactively because it holds that the statute always dictated that conclusion).

AGGRAVATED FELONY - DRUG TRAFFICKING - LOPEZ DECISION EFFECTIVELY OVERRULED PRIOR CONTRARY HOLDINGS EVEN THOSE RENDERED IN THE CRIMINAL SENTENCING CONTEXT
Gonzalez-Gonzalez v. Weber, ___ F.3d ___, 2006 WL 3791275 (10th Cir. Dec. 27, 2006) (Lopez v. Gonzales, ___ U.S. ___, 2006 WL 3487031 (Dec. 5, 2006), holding a state conviction of simple possession of cocaine cannot be an aggravated felony, effectively overruled prior contrary holdings, even those rendered in the criminal sentencing context, because the Supreme Court had previously held "[W]e must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context " Leocal v. Ashcroft, 543 U.S. 1, 11 n. 8 (2004)" and stated: "The Court in Lopez made it clear that its holding was not limited to the immigration context, we conclude. In addressing and rejecting an argument made by the government in Lopez, the Court said that the reading of the statute the government was proposing would make federal law in "alien removal," and "the law of sentencing for illegal entry into the country, [under] USSG 2L1.2, dependent on varying state criminal classifications" in contravention of Congressional intent. Lopez, 2006 WL 3487031 at *6.").

Other

AGGRAVATED FELONY " SIMPLE POSSESSION " CRACK COCAINE
Fair Sentencing Act Alters Immigration Treatment of Crack Convictions On August, 3, 2010, President Obama signed into law the Fair Sentencing Act, Pub. L. 111-220, which reduces the discriminatory treatment of crack and powder cocaine under federal sentencing laws. Before the Fair Sentencing Act became law, 21 USC 844(a) provided that a conviction for possession of more than five grams of crack cocaine was a felony. As a felony under the Controlled Substances Act, a conviction for more than five grams of crack cocaine met the definition of aggravated felony under 8 USC 1101(a)(43). See Lopez v. Gonzales, 549 U.S. 47, 59 (2006). Section 3 of the Fair Sentencing Act amended 21 USC 844(a) by deleting the language that made a conviction for simple possession of more than five grams of crack cocaine a felony. Under 21 USC 844(a), as amended by the Fair Sentencing Act, possession of any quantity of crack cocaine is now a misdemeanor. This means that a conviction for possession of crack cocaine can no longer be a conviction for an aggravated felony. Arguably, a conviction for more than five grams of cocaine can no longer be an aggravated felony regardless of the date of conviction because such a conviction no longer fits the definition in 8 USC 1101(a)(43). See Squires v. INS, 689 F.2d 1276 (6th Cir. 1982) (applying amended sentence maximum to petty offense exception). Thanks to Dan Kesselbrenner

BIBLIO
Lauren P. Gearty, Immigration Law-Second Drug Offense Not Aggravated Felony Merely Because of Possible Felony Recidivist Prosecution, 43 Suff. L. Rev. 277, 280-81 (2010).

ARGUMENT " AGGRAVATED FELONY " GRATUITOUS DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Counsel can argue that the Board of Immigration Appeals holding in Matter of Aruna, 24 I. & N. Dec. 452 (BIA 2008), that where a noncitizen was convicted under state law of distribution of marijuana, the offense would be considered an aggravated felony unless the respondent could prove to the Immigration Court that the offense did fall within 21 U.S.C. 841(b)(4) (gratuitous distribution of small amount of marijuana constituted no more than a misdemeanor under federal controlled substances acts), is in error, since the reasoning of Matter of Aruna has been overruled by the United States Supreme Court in Carachuri-Rosendo v. Holder, __ U.S. __, 130 S.Ct. 2577 (2010), which rejected the hypothetical federal felony reasoning on which Matter of Aruna was based.

AGGRAVATED FELONY - DRUG TRAFFICKING - MOTIONS TO REOPEN IMMIGRATION PROCEEDINGS
Prior to the Supreme Courts decision in Lopez v. Gonzales, many individuals were ordered removed and/or denied the opportunity to apply for relief based on a now-reversed interpretation of "drug trafficking crime" (INA 101(a)(43)(B)). These individuals may want to seek reconsideration and reopening before the immigration court and BIA, as well as seek judicial remedies.

AILF has prepared sample motions that will help you seek remedies for clients who were ordered removed under INA 240, but whose convictions are not aggravated felonies under Lopez. The samples are available at http://www.ailf.org/lac/clearinghouse_122106_lopezvgonzales.shtml.

If your client is outside of the US, seeking a remedy is more difficult because EOIR regulations bar motions for people who have been deported or departed. We think these regulations may be challenged in the court of appeals. Please contact us at clearinghouse@ailf.org if you are filing a motion to reconsider and reopen on behalf of a person who has been deported/departed.

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - PRIOR MUST BE PLEADED AND PROVEN
The Supreme Court decision in Lopez strengthens the argument that a second conviction of possession of a controlled substance does not constitute an aggravated felony drug trafficking offense, under the hypothetical federal felony approach, because Lopez is strict in requiring a state offense to correspond to a federal felony before it will constitute an aggravated felony. For example, the Court expressly states that a state possession offense should not be deemed to correspond to the federal felony of possession with intent to distribute no matter how large the quantity of controlled substance involved. Even a second or subsequent federal conviction of possession of a controlled substance cannot be considered a felony, under 21 U.S.C. 844(a), unless the prior conviction has been charged and an opportunity afforded to challenge the fact, finality, and validity of the prior conviction in a proceeding in which the prosecutor bears the burden of proving any issue of fact beyond a reasonable doubt. 21 U.S.C. 851. It is rare for federal prosecutors actually to seek this felony recidivist enhancement when charging misdemeanor possession cases.

AGGRAVATED FELONIES - DRUG TRAFFICKING - POSSESSION - SECOND POSSESSION
For those litigating challenges to drug aggravated felony charges post-Lopez, the NYSDA Immigrant Defense Project has updated its "Practice Advisory: Removal Defense of Immigrants in Drug Possession Cases - The Impact of Lopez v. Gonzales." http://www.nysda.org/idp/docs/07_PostLopezAdvisoryforRemovalDefense41207.pdf. Also available on the IDP website are copies of amicus briefs addressing post-Lopez issues filed before the Board of Immigration Appeals and before the Second, Fifth, and Eleventh Circuits. http://www.nysda.org/idp/webPages/drugLitigationInit.htm Thanks to Manny Vargas.

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION WITH SOLICITATION PRIOR
A second conviction of possession of a federally listed controlled substance, preceded by a prior conviction of solicitation to commit a controlled substances offense, can potentially constitute an aggravated felony drug trafficking offense. This is because the solicitation prior can constitute a prior, in federal court, to elevate the second possession conviction to an aggravated felony. A solicitation conviction is not interpreted under the criminal recidivist provisions as it is under the federal immigration laws, because different language is used. The same is true of the Federal First Offender Act, 18 U.S.C. 3607. A prior drug conviction will disqualify a defendant from FFOA treatment, if it is a crime under state law, even if it does not involve a federally listed offense and even if it is a solicitation conviction.

ARTICLE - AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - CIRCUIT BREAKDOWN OF CIRCUMSTANCES UNDER WHICH SECOND POSSESSION CONVICTION CONSTITUTES AGGRAVATED FELONY
The general rule is that a conviction of simple possession of a controlled substance cannot constitute an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B). Lopez v. Gonzales, 549 U.S 47 (2006). Two exceptions are simple possession of any amount of flunitrazepam (the date-rape drug) or over five grams of crack cocaine. Id. at ____. The only other possible time a simple possession conviction might constitute an aggravated felony is when it is a second or subsequent conviction of possession of a federally listed controlled substance. This is because a second conviction would sometimes constitute a felony if it had been prosecuted in federal court.

The BIA has held that a second conviction of possession of a controlled substance can constitute an aggravated felony only if the prior drug conviction was pleaded and proven, beyond a reasonable doubt, or admitted by the defendant to be true, during the prosecution of the second offense. Matter of Carachuri, 24 I. & N. Dec. 382, 394 (BIA 2007) (en banc); Matter of Thomas, 24 I_&_N Dec. 416 (BIA 2007). It held this default rule would apply in all circuits that have not held to the contrary. At this time, the default rule applies in all circuits except the Fifth and Seventh Circuits, which hold a second possession conviction is an aggravated felony, even though the first was not pleaded and proven or admitted. United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. 2008); Fernandez v. Mukasey, 544 F.3d 862 (7th Cir. 2008). The First, Second, Third, Sixth, and Ninth Circuits specifically follow the default or majority rule. Berhe v. Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006); Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008); Steele v. Blackman, 236 F.3d 130, 137-38 (3d Cir. 2001); Rashid v. Mukasey, 531 F.3d 438, 442-48 (6th Cir. 2008); Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. 2004). The Fourth, Eighth, Tenth and Eleventh Circuits as yet have no reported decisions on this point. For an excellent practice advisory on this point, see NYSDA Immigrant Defense Project, Using Lopez v. Gonzales to Challenge Aggravated Felony Drug Trafficking Charges or Bars on Relief, http://www.immigrantdefenseproject.org/webPages/crimJustice.htm (May 19, 2008, visited Jan. 30, 2009).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - MINNESOTA
Under Minnesota law, a second conviction of possession of a controlled substance has a recidivist sentencing enhancement, providing for a mandatory sentence of six months. Minnesota law explicitly provides that "a disposition" under Minn. Stat. 152.18 (deferred adjudication) is a "prior controlled substance offense" for purposes of applying the recidivist sentencing enhancement. This is analogous to the Federal First Offender Act, 18 U.S.C. 3607. Under federal law, a first disposition under 18 U.S.C. 3607 disqualifies the defendant from FFOA treatment for the second offense only if the first disposition has become final prior to the commission of the second offense. Immigration counsel can argue that a state law disposition under a first offender program similar to the FFOA has not become final for purposes of 21 U.S.C. 844(a), where the offender is still on probation and has not had the charge dismissed or adjudication of guilt entered. But see United States v. Varela, 993 F.2d 686 (9th Cir. 1993) (an offense that is not expunged before the second offense was committed is "final" under federal law, for purposes not related to drug recidivist enhancements, even if it could have been expunged). This decision, however, was in a case in which the plea had been accepted, and imposition of sentence was stayed, rather than not a stayed adjudication of guilt. Counsel could argue this difference should change the outcome. Carachuri should control when it is decided by the United States Supreme Court.

SUPREME COURT HOLDS SECOND POSSESSION OFFENSE IS NOT AN AGGRAVATED FELONY
In a unanimous decision in Carachuri-Rosendo v. Holder, the Supreme Court held that a second or subsequent simple drug possession conviction does not qualify as an aggravated felony under INA 101(a)(43)(B) ("drug trafficking crimes") and therefore does not bar a lawful permanent resident from applying for cancellation of removal. The case followed from the Supreme Courts decision in Lopez v. Gonzales, 549 U.S. 47 (2006), finding that a single drug possession conviction is not an aggravated felony. After Lopez, a circuit split developed regarding whether a second possession conviction can qualify as an aggravated felony. Under federal law, a person with a previous possession conviction may receive a felony sentence for a subsequent possession offense but only if the prosecutor sought and obtained a recidivist sentencing enhancement. The Supreme Court rejected the governments argument that hypothetically, Carachuri-Rosendos conduct could have received felony treatment under federal law. The Court found that immigration officials must look to what the person was actually convicted of, as opposed to what might have been charged by prosecutors. It also noted that Carachuri-Rosendo was not afforded the notice and process required for a conviction in federal court on a felony possession charge.