Safe Havens
§ 8.3 (A)
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(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:
