(A)  Aggravated Felonies.

 

            (1)  Simple Possession.

 

Board of Immigration Appeals:

 

Matter of KVD, 23 I. & N. Dec. 390 (BIA 1999) (Texas conviction of simple possession of a controlled substance, which would be a felony under Texas law but a misdemeanor if prosecuted under federal law, is not an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), affirming Matter of LG, 21 I. & N. Dec. 89 (BIA 1995) (en banc), overruled by Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002)).

 

Matter of LG, 21 I. & N. Dec. 89 (BIA 1995) (en banc) (Louisiana conviction of drug possession, considered a felony under state law, could not be considered a “felony” under 18 U.S.C. § 924(c)(2) (1994), and is therefore not an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (Supp. V 1993)), overruled in part by Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002) (if circuit law so provides, a state drug conviction considered a felony under state law is a “felony” under 18 U.S.C. § 924(c)(2) (1994), and therefore an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).

 

Matter of LG, 20 I. & N. Dec. 905 (BIA 1994) (single conviction for possession of a controlled substance under section 40:967F(2) of the Louisiana Revised Statutes is not analogous to a conviction under the single offense felony provision of 21 U.S.C. § 844(a) relating to possession of “cocaine base” where the Louisiana conviction involved possession of “cocaine,” not cocaine base), on reconsideration, Matter of LG, 21 I. & N. Dec. 89 (BIA 1995) (en banc) (Louisiana conviction of drug possession, considered a felony under state law, could not be considered a “felony” under 18 U.S.C. § 924(c)(2) (1994), and is therefore not an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B) (Supp. V 1993)), overruled in part by Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002)(if circuit law so provides, a state drug conviction considered a felony under state law is a “felony” under 18 U.S.C. § 924(c)(2) (1994), and therefore an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B)).

Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992) (the offense of simple possession of a controlled substance does not fall within the common definition of “illicit trafficking” as used in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).

 

Second Circuit:

 

Aguirre v. INS, 79 F.3d 315 (2d Cir. Mar. 22, 1996), overruling Jenkins v. INS, 32 F.3d 11 (2d Cir.1994) (New York conviction of possession of a controlled substance in the second degree, in violation of N.Y.Pen.L. § 220.18 (1989), that was felony under state law but not federal law, qualified as aggravated felony under 8 U.S.C. § 1101(a)(43)(B), for purposes of precluding alien from consideration for waiver of deportation or asylum).

 

Third Circuit:

 

Gerbier v. Holmes, 280 F.3d 297 (3d Cir. Feb. 8, 2002) (Delaware conviction of “trafficking in cocaine,” in violation of Del.Code Ann. tit. 16, § 4753A(2)(a), based on possession of between 5 and 50 grams of cocaine, did not constitute an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for immigration purposes, since offense did not contain a trading or dealing element and was not punishable as a felony under federal law).

 

Sixth Circuit:

 

Liao v. Rabbett, 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)).

 

Seventh Circuit:

 

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).

Ninth Circuit:

Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (drug possession conviction was not an aggravated felony since it would not be punishable as felony under federal drug laws and does not contain a trafficking element).

 

NOTE: This case solidifies the holding of Cazarez-Gutierrez[6] rule that for immigration purposes, the measure of whether a state non-trafficking drug conviction is a “felony” and therefore an aggravated felony is whether the analogous federal drug offense is classed as a felony.  It is not, as Matter of Yanez-Garcia[7] held, whether the state classifies the offense as a felony. Because simple possession is a misdemeanor under federal law, even a state felony conviction for simple possession will not be treated as an aggravated felony in immigration proceedings in the Ninth Circuit.

 

Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. Jan. 26, 2004) (state drug conviction is not an aggravated felony for immigration purposes unless it is punishable as a felony under the Controlled Substances Act or other federal drug laws named in the definition of a drug trafficking crime; since simple possession (except for possession of flunitrazepam or more than five grams of crack cocaine) is only a misdemeanor under federal law, it cannot be an aggravated felony), decision withdrawn presumably on jurisdictional grounds 366 F.3d 736 (9th Cir. April 26, 2004).

 

District Courts:

 

United States v. Sanchez, 179 F.Supp.2d 689 (W.D.Tex. Dec. 26, 2001) (Texas felony conviction for possession of cocaine for personal use was not “aggravated felony “ under U.S.S.G. § 2L1.2(b)(1)(C) (effective November 1, 2001), requiring eight-level increase in offense level of illegal re-entry conviction, since the new guidelines in U.S.S.G. § 2L1.2, comment (n.1(B)(iii)), explicitly define “drug trafficking offense” to exclude convictions for simple possession, felonies or not).

 

Diaz-Zaldierna v. Fasano, 43 F.Supp.2d 1114, 1115 n.2 (S.D.Cal. Mar. 16, 1999) (California conviction of possession of a controlled substance, in violation of Health and Safety Code § 11350, is not an aggravated felony; NOTE, however, that this decision was distinguished and disagreed with by numerous other courts).

 

(2)  Second Possession.

 

Board of Immigration Appeals:

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 was therefore not a drug trafficking aggravated felony under 8 U.S.C. § 1101(a)(43)(B), for deportation purposes).

 

Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA 2002) (en banc) (two Texas state court misdemeanor convictions for possession of two ounces or less of marijuana, in violation of Texas Penal Code § 481.121, punishable by “confinement in jail for a term not to exceed 180 days” are not felony convictions within the meaning of 18 U.S.C. § 924(c)(2) or “aggravated felonies” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2000)).

 

Third Circuit:

 

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 would for have been punishable as a felony if prosecuted in federal court, and under the federal Controlled Substances Act was therefore not an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for immigration purposes under the “hypothetical federal felony” test).

 

Ninth Circuit:

 

Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (a second conviction of possession of a controlled substance is not a “felony” sufficient to qualify as an aggravated felony under the drug trafficking definition of 18 U.S.C. § 924(c), because the increase in the level of the offense from misdemeanor to felony if prosecuted in federal court is triggered by a recidivist sentence enhancement, and such enhancements are ignored in the determination of whether a conviction constitutes an aggravated felony).

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 sentence enhancement based on the existence of a 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)).

United States v. Arellano-Torres, 303 F.3d 1173 (9th Cir. 2002) (holding of Corona-Sanchez, finding recidivist theft offense sentence enhancements cannot be used in determining maximum possible sentence, applied equally to 21 U.S.C. § 844, which imposed greater sentence upon a subsequent simple possession conviction).

 

            (3) Distribution

 

Third Circuit:

 

Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. November 26, 2003) (New Jersey conviction dated November 17, 1995, for possession with intent to distribute more than one ounce (28.5 grams) of marijuana, in violation of N.J. Stat. Ann. § 2C:35-5b(11), might have failed to give the INS reason to believe the defendant had been a drug trafficker, triggering inadmissibility under INA 237(a)(2)(C)(i), 8 U.S.C. § 1227(a)(2)(C)(i), for which ground of inadmissibility there is no 212(c) or 212(h) waiver, so he cannot adjust status).

 

            A person convicted under state or federal law of gratuitous distribution of a small amount of marijuana would be convicted only of simple possession, if prosecuted in federal court, which is a misdemeanor.  Therefore, in circuits — such as the Second, Third, and Ninth, following the “hypothetical federal felony” rule, such a conviction cannot constitute an aggravated felony under Prong II of INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).

 

            The pertinent statute states:

 

Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marijuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18.[8]

This means that anyone convicted of “knowingly or intentionally -- (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance” (21 U.S.C. 844(a)) by free distribution of a “small amount” of marijuana must (“shall”) be treated as if convicted of simple possession of a controlled substance under 844(a), which means it is a federal misdemeanor, and therefore not an aggravated felony under Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. Jan. 26, 2004).  It also means a Lujan expungement works since it works for simple possession.  See § 9.5, infra.

 

District Courts:

 

United States v. Gomez-Ortiz, 62 F.Supp.2d 508 (D.R.I. Aug. 4, 1999) (Massachusetts misdemeanor conviction for first-offense possession with intent to distribute, in violation of M.G.L. 94C, § 32C(a) and M.G.L. 274 § 1, did not constitute “felony,” and was therefore not “aggravated felony,” under 8 U.S.C. § 1101(a)(43)(B), for purposes of U.S.S.G. § 2L1.2(b)(1)(A) 16-level sentence enhancement for illegal re-entry, even though defendant’s offense would have been classified as felony if it had been prosecuted under federal law, since a state misdemeanor can never be a felony under the federal definition).

[6] Cazarez-Gutierrez v Ashcroft, 356 F.3d 1015 (9th Cir. 2004).

[7] Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002).

[8] 21 U.S.C. § 841(b)(4) states:

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 - 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).

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 - 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.

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION
Arce-Vences v. Mukasey, 512 F.3d 167 (5th Cir. Dec. 21, 2007) ("Arce's conviction for possession [of between 50 and 2000 pounds] of marijuana is not an aggravated felony. Commission of an aggravated felony was the sole charge on which he was ordered removed. Because, in the light of Lopez, we hold that Arce's conviction for possession of marijuana is not an aggravated felony, we vacate his order of removal.").

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 - 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

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).

Seventh Circuit

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 - SIMPLE POSSESSION -- HYPOTHETICAL FEDERAL FELONY RULE
Masok v. Achim, ___ F.3d ___, 2005 WL 1017891 (N.D. Ill. 2005) (Illinois conviction of possession of less than 15 grams of cocaine, in violation of 720 ILCS 570/402(c), which constituted a Class 4 felony under Illinois law, held not convicted of an aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), because the conviction would not have constituted a felony, but only a misdemeanor, if prosecuted under federal law).

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

CONTROLLED SUBSTANCES " PARAPHERNALIA " UNLISTED SUBSTANCE
Madrigal-Barcenas v. Lynch, ___ F.3d ___, 2015 WL 4716767 (9th Cir. Aug. 10, 2015) (Nevada drug paraphernalia conviction, under NRSA 453.566, constitutes a controlled substance conviction, for purposes of inadmissibility, only if the conviction involved a substance criminalized by federal drug laws); following Mellouli v. Lynch, 135 S. Ct. 2828 (2015); holding Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) and its progeny are no longer good law.

Tenth Circuit

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).

Other

DRUG TRAFFICKING - POSSESSION OF A CONTROLLED SUBSTANCE
Second Circuit leaves open question of whether 2nd drug possession offense constitutes "Aggravated Felony" See article by Manuel D. Vargas of NYSDAs Immigrant Defense Project (IDP), here: Immigration Practice TipsJan.-Feb. 2005

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
There is an argument that regardless of any latent ambiguity in the phrase "any felony" in 924(c)(2), under Jerome v. U.S., 318 U.S. 101 (1943), 1101(a)(43)(B) covers only convictions, whether obtained under federal or state law, which would be felonies under 18 U.S.C. 924(c)(2). In Jerome v. U.S., the issue was the meaning of the phrase "any felony" in a federal criminal statute. As the Court held therein, 318 U.S. at 101-2 (internal citations omitted): Sec. 2 (a) of the Bank Robbery Act ... provides in part that "whoever shall enter or attempt to enter any bank, n1 or any building used in whole or in part as a bank, with intent to commit in such bank or building, or part thereof, so used, any felony or larceny, shall be fined not more than $ 5,000 or imprisoned not more than twenty years, or both." Petitioner was indicted under that section for entering a national bank in Vermont with intent to utter a forged promissory note and thereby to defraud the bank. He was convicted after trial before a jury and was sentenced to imprisonment for one year and a day. The utterance of a forged promissory note is a felony under the laws of Vermont ... but not under any federal statute. The Circuit Court of Appeals affirmed the conviction by a divided vote, holding that "felony" as used in 2(a) includes offenses which are felonies under state law. 130 F.2d 514. We granted the petition for a writ of certiorari because of the importance of the problem in the administration of justice and because of the diversity of views which have developed as respects the meaning of "felony" in 2(a). In concluding that the phrase "any felony" presumptively excluded crimes which were felonies under state, but not federal, law, the Court reasoned, id. at 104 (emphasis added): At times it has been inferred from the nature of the problem with which Congress was dealing that the application of a federal statute should be dependent on state law. Examples under federal revenue acts are common. Douglas v. Willcuts, 296 U.S. 1; Helvering v. Stuart, 317 U.S. 154, and cases cited. But we must generally assume, in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law. That assumption is based on the fact that the application of federal legislation is nationwide (United States v. Pelzer, 312 U.S. 399, 402) and at times on the fact that the federal program would be impaired if state law were to control. See also, Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43-44 (1989) (some internal citations omitted) (emphasis added): [T]he general assumption [is] that "in the absence of a plain indication to the contrary, ... Congress when it enacts a statute is not making the application of the federal act dependent on state law." Jerome v. United States, 318 U.S. 101, 104 (1943)... One reason for this rule of construction is that federal statutes are generally intended to have uniform nationwide application. ... Accordingly, the cases in which we have found that Congress intended a state-law definition of a statutory term have often been those where uniformity clearly was not intended... A second reason for the presumption against the application of state law is the danger that "the federal program would be impaired if state law were to control." ... For this reason, "we look to the purpose of the statute to ascertain what is intended." The term "aggravated felony" includes state crimes as a result of the overarching language of 8 U.S.C. 1101(a)(43), not from 18 U.S.C. 924(c)(2). The meaning of 924(c)(2) is thus unaffected by the fact that 1101(a)(43) covers both federal and state crimes. Thanks to Lisa S. Brodyaga

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION OF COCAINE
See § 7.66

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION OR PURCHASE OF COCAINE BASE FOR SALE
See § 7.69