(A)  Majority Rule that State Felony Possession Conviction Constitutes Aggravated Felony.  A state court conviction of simple possession of a controlled substance is generally considered an aggravated felony for immigration purposes,[81] and for illegal re-entry sentencing purposes,[82] if it is a felony, but not if it is a misdemeanor conviction. 

 

The federal Controlled Substances Act (CSA) defines the term “felony” as “any Federal or State offense classified by applicable Federal or State law as a felony.”[83]  Under this definition, a state conviction of simple possession of a controlled substance that is defined as a felony under state law would constitute a “felony” under the CSA for purposes of bringing the conviction within the definition of aggravated felony, even though a first-offense conviction of the same offense would only constitute a misdemeanor if it had been prosecuted under federal law. [84]  “To date, in addition to the First Circuit, the Second, Fifth, Eighth, Ninth, Tenth and Eleventh Circuits have also espoused this view in the Sentencing Guidelines context.” [85]  The Third Circuit disagreed, pointing out that those statutes “merely define ‘felony’ and ‘felony drug offense’ for purposes of prior criminal history sentencing enhancements.”[86]  The Second Circuit follows prior BIA decisions holding a first-offense state possession conviction was not an aggravated felony, since it would not have been a felony if prosecuted under federal law,[87] but did so in deference to the BIA, and might change its position now that the BIA has changed its view. 

 

The competing definition of “felony” is the federal statutory definition of felony employed to classify federal convictions as misdemeanors or felonies.  In another context, the BIA has applied the federal definition of a felony set forth at 18 U.S.C. § 3559(a)(5).[88]  Under that definition, a “felony” is an offense for which the maximum term of imprisonment is “more than one year.”[89]  Moreover, the U.S. Sentencing Guidelines define “felony” to include “any federal, state or local offense punishable by imprisonment for a term exceeding one year.”[90]  The Ninth Circuit has applied this generic federal definition of felony in a related context.[91]  Another provision in the CSA defines a “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.”[92]  Counsel should assume that if a state conviction is considered a felony by the state, that it will be considered an aggravated felony.

[81] Matter of Yanez, 23 I. & N. Dec. 390, 394 (BIA 2002) (en banc).

[82] United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000).

[83] This definition also applies to the Controlled Substances Import and Export Act and the Maritime Drug Law Enforcement Act.  See 21 U.S.C. § 951(b) (2000); 46 U.S.C. App. § 1903(i) (2000).

[84] See, e.g., United States v. Restrepo-Aguilar, 74 F.3d 361, 365 (1st Cir. 1966) (concluding that Congress and the Sentencing Commission in relying on the CSA for this aggravated felony definition used the definition of “felony” contained in the CSA); United States v. Ibarra-Galindo, 206 F.3d 1337, 1339 (9th Cir. 2000).

[85] Gerbier v. Holmes, 280 F.3d 297, 307 (3d Cir. 2002).

[86] Gerbier v. Holmes, 280 F.3d 297, 299, 310 (3d Cir. 2002); see Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001).

[87] United States v. Pornes-Garcia, 171 F.3d 142, 146 (2d Cir. 1999), cert. denied, 528 U.S. 880 (1999); see also Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996).

[88] Matter of Crammond, 23 I. & N. Dec. 9 (BIA 2001), vacated by 23 I. & N. Dec. 179 (BIA 2001).

[89] 18 U.S.C. § 3559(a)(5).  Compare 18 U.S.C. § 3559(a)(6) (a Class A misdemeanor is an offense with a maximum sentence of “one year or less but more than six months”).

[90] U.S.S.G. § 2L1.2, Application Note 1.

[91] United States v. Arrellano-Torres, 303 F.3d 1173 (9th Cir. 2002) (Nevada four-year suspended sentence for possession of a controlled substance constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), even though execution was required to be suspended under a state statute forbidding actual incarceration for possession, and was held to be a felony under the federal test for determining whether a conviction is a felony since the maximum sentence possible was in excess of one year).

[92] 21 U.S.C. § 802(44).

Second Circuit

SENTENCE - DATE OF CONVICTION - SENTENCE REQUIRED TO CONSTITUTE CONVICTION
Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA 101(f)(8), 8 U.S.C. 1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of "conviction" in 8 U.S.C. 1101(a)(48)(A), the entry of a "formal judgment of guilt . . . by a court" occurs when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that "Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt"); Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant "entered a plea of guilty, and the court entered a formal judgment of guilt").

Ninth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING
Cazarez-Gutierrez v Ashcroft, 356 F.3d 1015 (9th Cir. 2004), decision withdrawn presumably on jurisdictional grounds (9th Cir. April 26, 2004).      In Cazarez-Gutierrez, the Ninth Circuit held that a state felony simple possession conviction was not an aggravated felony in immigration proceedings, unless it was a conviction of possession of flunitrazepam (a date-rape drug) or more than five grams of crack cocaine, which are aggravated felony convictions under federal law.      In summary, we hold that a state drug offense is not an aggravated felony for immigration purposes unless it is punishable as a felony under the CSA or other federal drug laws named in the definition of "drug trafficking crime," or is a crime involving a trafficking element. Cazarez-Gutierrez's offense, possession of methamphetamine, is not punishable as a felony under federal law and involves no trafficking element. Therefore, his offense is not an aggravated felony for immigration purposes, and the BIA erred in finding Cazarez-Gutierrez statutorily ineligible for cancellation of removal. Accordingly, we grant his petition and remand to the BIA to consider whether the IJ abused his discretion by granting Cazarez-Gutierrez cancellation of removal. Cazarez-Gutierrez v Ashcroft, 356 F.3d 1015, 1027 (9th Cir. 2004), decision withdrawn presumably on jurisdictional grounds (9th Cir. April 26, 2004).      The court concluded that a different test was possible for immigration purposes, than is the rule for illegal reentry sentencing cases, and the better view uses a uniform national test based on whether the conviction would have been a felony if the case had been prosecuted in federal court. Under this test, because simple possession is a misdemeanor under federal law, even a state felony possession offense would be judged a "misdemeanor" if prosecuted in federal court, and is therefore not an aggravated felony.      Since Cazarez has been withdrawn, criminal defense counsel should assume that the law reverts to what it was before the Cazarez-Gutierrez opinion. The BIA rule holds that a state felony conviction for simple possession is an aggravated felony, but even multiple state misdemeanor convictions for simple possession are not. See Matter of Yanez-Garcia 23 I. & N. Dec. 390 (BIA 2002); Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA 2002).      If the Ninth Circuit holds it has no petition for review jurisdiction in Cazarez, the case would go to federal district court on habeas corpus under 28 U.S.C. 2241 to decide the same issue of whether the felony state conviction for simple possession is an aggravated felony for immigration purposes.      Even under the BIA rule, it is still possible, in the Ninth Circuit, to eliminate all adverse immigration consequences of a first felony or misdemeanor conviction for simple possession by "rehabilitative relief" such as, in California, withdrawal of plea under deferred entry of judgment, Proposition 36, or expungement pursuant to Penal Code 1203.4. See Lujan-Armendariz v INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999). This is also true for a first conviction of giving away a small amount of marijuana. See 21 U.S.C. 841(b)(4).      In Criminal Court. Until the Ninth Circuit issues a new ruling, criminal defense counsel should act conservatively and assume that a felony simple possession will be held an aggravated felony in immigration proceedings. Counsel should advise and assist clients to eliminate an existing first felony conviction for simple possession, by obtaining rehabilitative relief. Counsel should attempt to defer pleading to a new felony simple possession (unless it is a first offense that can quickly be eliminated by rehabilitative relief), or plead to a different offense. Alternatives include misdemeanor simple possession and offenses such as accessory after the fact, being under the influence, being in a place where drugs are used, possession of paraphernalia, or possession of an unidentified controlled substance. If it is crucial to avoid an aggravated felony, the person may decide to plead up to statutes that include solicitation or "offering" to commit a drug offense, such as Calif. Health & Safety Code 11352(a), 11360(a) and 11379(a), which would not be held to be drug trafficking aggravated felonies, or even controlled substances convictions. See United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001); "Note: Drug Offenses" at the Quick Reference Chart at www.ilrc.org/Cal_DIP_Chart_by_section.pdf.      In Immigration Court. Immigration counsel should continue to argue that the original decision in Cazarez-Gutierrez was decided correctly, or ask for a continuance pending the Ninth Circuit's decision.