(A)  Marijuana.  As discussed in Chapter 7, a controlled substances conviction that is a misdemeanor under both federal and state law cannot constitute an aggravated felony in any circuit.  See, § § 7.65-7.66, supra.  In the Second, Third, and Ninth Circuits, a state simple possession conviction — even a second or third conviction — punishable by more than one year imprisonment will also not be considered an aggravated felony, since the offense would only a misdemeanor if it had been prosecuted under federal law.  See § § 7.22, 7.66, supra.  In the rest of the circuits, and under BIA law, a state misdemeanor conviction of simple possession cannot be an aggravated felony conviction.  See § § 7.22, 7.66, supra.

 

            Under the controlled substances ground of deportability, there is an explicit exception for “a single offense involving possession for one’s own use of thirty grams or less of marijuana.”[33]  This exception does not, by its language, distinguish between felony and misdemeanor convictions.

             

There is no similar exception under the aggravated felony drug trafficking deportation ground[34] for being deportable for having an aggravated felony conviction based on simple possession of 30 grams or less of marijuana.  Therefore, the 30-gram exception appears to apply only to the controlled substances ground of deportation, and not to the aggravated felony ground.[35]  

 

            In finding that a state felony conviction for possession of a controlled substance is an aggravated felony only if the defendant could have received felony treatment under federal law, the Third Circuit recognized that in circuits that follow the contrary rule, a defendant with a conviction of felony possession of 30 grams or less of marijuana would be deportable for having an aggravated felony conviction even though that same defendant would not be deportable as a controlled substances offender.[36]  In Matter of Yanez,[37] the BIA reversed earlier decisions interpreting when a noncitizen convicted of a controlled substances offense was deportable under the aggravated felony ground of deportability.  One of those now-rejected BIA decisions incorporated the argument that the 30-gram exception applies to aggravated felonies as part of its rationale.[38]

There is an argument, however, that a defendant who has been convicted of felony possession for personal use of 30 grams of marijuana or less is not deportable for an aggravated felony drug trafficking conviction, under the second part of the definition, because s/he would not be deportable under the controlled substances conviction ground of deportation.  Congress clearly meant to exempt from deportation someone who possessed 30 grams of marijuana or less, so a sympathetic court of appeals might rule the exception applied both to the controlled substances ground of deportation and aggravated felony ground as well.[39]  This argument is not as strong here as in the firearms context, however, since in that context a portion of the statute would have been made meaningless otherwise, whereas here the aggravated felony category does not automatically contain all cases involving possession of 30 grams or less.[40]

 

            Simple possession has been found not to be a crime of moral turpitude.[41]  See § 8.3, supra.  Because possession does not necessarily mean abuse or addiction, a conviction for first time simple possession of 30 grams or less also should not render a noncitizen deportable under the drug abuse/addiction ground of deportability.[42]

[33] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).

[34] INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

[35] Cf. Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. Nov. 26, 2003) (recognizing in inadmissibility context that 30-gram exception was ground-specific and would not forgive inadmissibility under INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C), for reason to believe the noncitizen engaged in drug trafficking, even if possession with intent to distribute were a possessory offense, because INA § 212(h) waiver applies only to controlled substances ground of inadmissibility under INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i)).

[36] Gerbier v. Holmes, 280 F.3d 297, 312 (3d Cir. 2002).

[37] Matter of Yanez, 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).

[38] See Matter of LG, 21 I. & N. Dec. 89 (BIA 1995).

[39] See Lemus-Rodriguez v. Ashcroft, 350 F.3d 652 (7th Cir. Nov. 26, 2003) (sporting exception to destructive device exception applies to firearm deportation ground even though statute does not say so, since Congress obviously meant the exception to apply).

[40] Thanks to Dan Kesselbrenner for this analysis.

[41] Matter of Abreu-Semino, 12 I. & N. Dec. 775 (BIA 1968) (conviction for unlawful possession of LSD under 21 U.S.C. § § 331(q)(3) was not crime involving moral turpitude because intent was not an essential element of the offense).

[42] INA § 237(a)(2)(B)(ii), 8 U.S.C. § 1101(a)(43)(B)(ii).

Other

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