(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).

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.