Post-Conviction Relief for Immigrants

(B)  Minority Rule that State Felony Conviction Does Not Constitute Aggravated Felony for Removal Purposes Unless It Would Have Been a Felony if Prosecuted in Federal Court.  In the Second, Third, and Ninth Circuits, a state felony conviction of simple possession of a controlled substance cannot constitute a drug-trafficking aggravated felony, for deportation purposes, since it would have been a misdemeanor under 21 U.S.C. § 844(a) if prosecuted in federal court.[93]  The only exceptions are possession of more than five grams of cocaine base, or any amount of the date-rape drug flunitrazepam, which constitute felonies under federal law, even for a first-offense.[94]  Therefore a felony or misdemeanor state conviction for possession of these two drugs constitutes an aggravated felony for immigration purposes in the Ninth Circuit.  Note that a felony simple possession conviction still constitutes an aggravated felony for purposes of enhancing a sentence for illegal re-entry under the Guidelines, even in the Ninth Circuit, but state misdemeanor convictions do not.[95]

            In the Ninth Circuit, the court must ignore penalties enhanced as a result of recidivist sentence enhancements in determining whether a conviction constitutes an aggravated felony conviction.[96]  Therefore, a second or third conviction for simple possession of a controlled substance, under this analysis, constitutes a federal misdemeanor,[97] and cannot constitute an aggravated felony for deportation purposes.[98]

Therefore, the importance of a motion to reduce a felony to a misdemeanor is reduced in jurisdictions in which state felonies cannot be considered aggravated felonies under these authorities.

[93] Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. Jan. 26, 2004) (Arizona felony conviction of possession of methamphetamine, in violation of Ariz. Rev. Stat. § 13-3407 (West 1997), which would have been a misdemeanor under 21 U.S.C. § 844(a) if prosecuted in federal court, did not constitute a drug-trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for deportation purposes, under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), in order to enforce “the presumption that Congress intends immigration law to be nationally uniform and uniformly applied,” so as to avoid different results depending on the vagaries of state law).

[94] 21 U.S.C. § 844(a).

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

[96] Corona-Sanchez v. INS, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc); United States v. Arellano-Torres, 303 F.3d 1173, 1176 (9th Cir. 2002).

[97] United States v. Ballesteros-Ruiz, 319 F.3d 1101, 1103 (9th Cir. 2003), disapproving United States v. Garcia-Olmedo, 112 F.3d 399 (9th Cir. 1997), and United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. 1998), as having been overruled by Corona-Sanchez v. INS, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc).

[98] Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. Jan. 26, 2004).