Post-Conviction Relief for Immigrants

(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).