(B)  State Felony First Offense Possession.  The United States Supreme Court has recently found that a state felony conviction for first time simple possession cannot be considered an aggravated felony since first-time simple possession is not a felony under federal law.[564]  This decision resolved a long-lasting split among the circuits.

 

(1)  Brief History.  In Matter of Davis,[565] the BIA held that a state conviction of a drug offense must be punishable under one of the three controlled substances statutes as a federal felony,[566] in order for the offense to qualify as an aggravated felony.  Therefore, an offense punishable only as a misdemeanor under federal law would not trigger removal as an aggravated felony drug trafficking offense.  The BIA applied a “hypothetical federal felony” test that required a state conviction to be punishable as a felony under federal law before it could be considered an a “aggravated felony” drug trafficking offense.[567]  Under this rule, a state felony conviction for simple possession of a controlled substances would not be an aggravated felony for immigration purposes because the offense was not punished under federal law as a felony.

 

As time passed, seven circuits found a state felony conviction for first time simple possession to be an aggravated felony in the illegal re-entry sentencing context.[568]  By this time, only the Second and Third Circuits had explicitly adopted the hypothetical federal felony approach in the immigration context, [569] and the Second Circuit refused to apply that test in the sentencing context.[570]  The Fifth Circuit, on the other hand, explicitly rejected the immigration/sentencing context-sensitive approach and refused to follow the hypothetical federal felony test in either context.[571]

 

Finding that uniformity was unattainable given the circumstances, the BIA retreated from its prior decisions, and instead chose to “follow the authoritative decisions of the federal circuit courts of appeals regarding interpretation of a provision of federal criminal law that is referenced in the Immigration and Nationality Act.”[572]  Where “the relevant court of appeals ha[d] not yet had occasion to interpret the phrase ‘drug trafficking crime’ in [18 U.S.C.] § 924(c)(2),” the BIA held that it would “apply the interpretation of that phrase that has been adopted by the majority of the federal circuit courts.”[573]

 

Afterward, the Fourth Circuit held it would also treat simple possession as an aggravated felony in the sentencing context.[574]  The Seventh and Ninth Circuits joined the Second and Third to find that simple possession was not an aggravated felony for immigration purposes.[575]  The Eighth Circuit joined the Fifth Circuit in finding that state felony simple possession was an aggravated felony regardless of context.[576]  The Sixth Circuit also rejected the context-sensitive approach, but chose to apply the hypothetical felony test in both contexts.[577]

 

(2)  Lopez.  In Lopez v. Gonzales,[578] the United States Supreme Court resolved the split among the courts by holding that a state felony conviction for first-time simple possession of a controlled substance cannot be considered an aggravated felony drug trafficking offense under 8 U.S.C. § 1101(a)(43)(B).  The impact of this decision will be felt primarily in those states in which possessory offenses are punishable as felonies under state law.[579]

 

The court first noted that simple possession does not, on a basic level of understanding and common sense, involve “drug trafficking,” and noted that while “Congress can define an aggravated felony of illicit trafficking in an unexpected way . . . Congress would need to tell us so . . . .”[580]   While noting that Congress had “counterintuitively” defines certain possession offenses as “illicit trafficking” crimes (by making them federal felonies), the court found that, “this coerced inclusion of a few possession offenses in the definition of ‘illicit trafficking’ does not call for reading the statute to cover others for which there is no clear statutory command to override ordinary meaning.”[581]

 

The court found that, applying a common sense reading of the 18 U.S.C. § 924(c)(2)[582] language at issue, an offense had to be punishable as a felony under the listed federal statutes in order to qualify as a “drug trafficking” crime.[583]  Turning to statutory construction, the court found that to read the language in the more convoluted way suggested by the government would violate “the cardinal rule that statutory language must be read in context.  That is why our interpretive regime reads whole sections of a statute together to fix on the meanings of any one of them, and the last thing this approach would do is divorce a noun from a modifier next to it without some extraordinary reason.”[584] 

 

The court also noted that because other sections within 18 U.S.C. § 924 explicitly referenced punishments under state law, to read 924(c)(2) as including state felonies would violate the rule of statutory construction that “where Congress includes particular language in one section of a statute, but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”[585]  The court also refused to apply the “felony” definition in 21 U.S.C. § 802(13) to 18 U.S.C. § 924(c)(2).[586]

 

Finally, the court found (as the BIA originally held) that allowing the State’s designation of simple possession as a felony or misdemeanor determine whether the offense was an aggravated felony would “render the law of alien removal . . . and the law of sentencing for illegal entry into the country . . . dependent upon the varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose. . . .  We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors if it meant courts to ignore it whenever a State chose to punish a given act more heavily.”[587]

 

The courts have been quick to follow Lopez.[588]  Practice advisories have been issued to assist both criminal and immigration counsel in best representing their clients in light of the Lopez decision.[589]

 

                (3)  Exceptions.  A conviction for possession of more than five grams of cocaine base, or any amount of the date-rape drug flunitrazepam, will constitute a felony under federal law, even for a first offense.[590]  Therefore a qualifying felony or misdemeanor state conviction for possession of these two drugs will constitute an aggravated felony for immigration purposes.

 

(4)  Illegal Reentry Cases.  Even though the Supreme Court dismissed certiorari as improvidently granted in the companion criminal case,[591] the Lopez holding necessarily applies in the criminal context as well.  The Supreme Court stated the question in Lopez to be "[w]hether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a felony punishable under the Controlled Substances Act.  18 U. S. C. § 924(c)(2).  We hold it is not."[592]  This precise question is also confronted by federal criminal courts in considering whether a state felony possession conviction constitutes an aggravated felony triggering a sentence enhancement for illegal reentry convictions.  The court in Lopez also included criminal cases as well as immigration cases in the list of conflicting circuit decisions it was resolving.[593]  Therefore, the text of Lopez resolves the same question in both immigration and criminal contexts.  Its analysis, as well, applies equally in the criminal context.  Finally, the court in a previous decision held that the statutory definition of an aggravated felony "crime of violence" must have the same meaning in both sentencing and immigration contexts, and the court is following same rule here. [594]  Lopez reverses the rule of eight circuits in the criminal context, and will thus have an even greater impact here than in immigration proceedings.

[564] Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 (Dec. 5, 2006).

[565] Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992).

[566] A felony is defined under 18 U.S.C. § 3559 as an offense with a maximum possible term of imprisonment exceeding one year.  Matter of Davis, 20 I. & N. Dec. at 543.

[567] See Matter of LG, 20 I. & N. Dec. 905 (BIA 1994).  See also Matter of KVD, 22 I. & N. Dec. 1163 (BIA 1999).

[568] See, e.g., United States v. Ibarra-Galindo, 206 F.3d 1337, 1339 (9th Cir. 2000); United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir. 1999); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir. 1997); United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir. 1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 364 (1st Cir. 1996).

[569] Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996).

[570] See Pornes-Garcia, supra.

[571] See United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001).

[572] Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 396 (BIA 2002).

[573] Id. at 397.

[574] United States v. Wilson, 316 F.3d 506 (4th Cir. Jan. 16, 2003).

[575] See Gutnik v. Gonzales, 469 F.3d 683 (7th Cir. Nov. 29, 2006) (Illinois felony conviction of possession of heroin is not an aggravated felony under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) because at the federal level that crime is punishable as a misdemeanor); Gonzalez-Gomez v. Achim, 441 F.3d 532 (7th Cir. Mar. 22, 2006); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir. Aug. 24, 2004).

[576] Lopez v. Gonzales, 417 F.3d 934 (8th Cir. Aug 09, 2005); Salazar-Regino v. Trominski, 415 F.3d 436 (5th Cir. June 30, 2005).

[577] United States v. Palacios-Suarez, 481 F.3d 692 (6th Cir. Jul. 22, 2005).

[578] Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 (Dec. 5, 2006).

[579] See, e. g., S. D. Codified Laws § § 22.42.5 (2004), 22.6.1 (2005 Supp.); Tex. Health & Safety Code Ann. § 481.115 (West 2003); Tex. Penal Code Ann. § § 12.32, 12.35 (West 2003); Fla. Stat. § § 893.13(6)(a).(b), 775.082(3)(d) (2006) (punishing possession of over 20 grams of marijuana as a felony); Nev. Rev. Stat. § § 453.336(1), (2) (2004), § § 453.336(4), 193.130 (2003) (punishing possession of more than one ounce, or 28.3 grams, of marijuana as a felony); N. D. Cent. Code Ann. § § 19.03.1.23(6) (Lexis Supp. 2005), 12.1.32.01(4) (Lexis 1997) (same); Ore. Rev. Stat. § 161.605(3) (2003), Act Relating to Controlled Substances, § 33, 2005 Ore. Laws p. 2006 (same).

[580] Id. at 633.

[581] Id. at 630 n.6.

[582] “the term ‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act . . .”

[583] Id. at 631.

[584] Ibid. (internal citation omitted)

[585] Ibid. quoting Russello v. United States, 464 U.S. 16, 23 (1983).

[586] Id. at 631 n.7.

[587] Id. at 632.

[588] See, e.g., United States v. Estrada-Mendoza, 475 F.3d 258 (5th Cir. Jan. 3, 2007) (Texas conviction of possession of a controlled substance did not warrant 8-level sentence enhancement for illegal reentry after deportation, since it would not constitute a felony if prosecuted under federal law, and was therefore not an aggravated felony drug trafficking offense under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)); United States v. Martinez-Macias, 472 F.3d 1216 (10th Cir. Jan. 2, 2007) (Kansas conviction for simple possession of cocaine is not an aggravated felony); Gonzalez-Gonzalez v. Weber, 472 F.3d 1198 (10th Cir. Dec. 27, 2006) (state conviction of simple possession of cocaine held not to be an aggravated felony, for deportation purposes; Lopez v. Gonzales must be applied retroactively because it holds that the statute always dictated that conclusion).

[589] See http://www.nysda.org/idp/webPages/LvGPressroom.htm (last visited 2/13/2007).

[590] 21 U.S.C. § 844(a).

[591] Toledo-Flores v. United States, 549 U.S. ___, 127 S.Ct. 638 (Dec. 5, 2006) (writ of certiorari is dismissed as improvidently granted).

[592] Ibid. at ___.

[593] Ibid. at ___, n.3. 

[594] Leocal v. Ashcroft, 543 U.S. 1, 12 n.8 (November 9, 2004).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
CD4:19.58;SH:7.66, 8.3;AF:5.40, A.18, B.3 Carachuri-Rosendo v. Holder, 130 S.Ct 2577 (Jun. 14, 2010) (a second or subsequent conviction for simple possession of a controlled substance can qualify as a drug trafficking aggravated felony only if the fact of the first conviction is proven or admitted beyond a reasonable doubt in the course of the criminal proceeding regarding the second possession charge).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
Carachuri-Rosendo v. Holder, 130 S.Ct 2577 (Jun. 14, 2010) ("We explained in Lopez that "ordinarily trafficking means some sort of commercial dealing." Id. at 53-54, 127 S.Ct. 625 (citing Black's Law Dictionary 1534 (8th ed.2004)). And just as in Lopez, "[c]ommerce ... was no part of" Carachuri-Rosendo's possessing a single tablet of Xanax, "and certainly it is no element of simple possession." 549 U.S. at 54, 127 S.Ct. 625. As an initial matter, then, we observe that a reading of this statutory scheme that would apply an "aggravated" or "trafficking" label to any simple possession offense is, to say the least, counterintuitive and "unorthodox," ibid.").

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - MINNESOTA
Under Minnesota law, a second conviction of possession of a controlled substance has a recidivist sentencing enhancement, providing for a mandatory sentence of six months. Minnesota law explicitly provides that "a disposition" under Minn. Stat. 152.18 (deferred adjudication) is a "prior controlled substance offense" for purposes of applying the recidivist sentencing enhancement. This is analogous to the Federal First Offender Act, 18 U.S.C. 3607. Under federal law, a first disposition under 18 U.S.C. 3607 disqualifies the defendant from FFOA treatment for the second offense only if the first disposition has become final prior to the commission of the second offense. Immigration counsel can argue that a state law disposition under a first offender program similar to the FFOA has not become final for purposes of 21 U.S.C. 844(a), where the offender is still on probation and has not had the charge dismissed or adjudication of guilt entered. But see United States v. Varela, 993 F.2d 686 (9th Cir. 1993) (an offense that is not expunged before the second offense was committed is "final" under federal law, for purposes not related to drug recidivist enhancements, even if it could have been expunged). This decision, however, was in a case in which the plea had been accepted, and imposition of sentence was stayed, rather than not a stayed adjudication of guilt. Counsel could argue this difference should change the outcome. Carachuri should control when it is decided by the United States Supreme Court.

BIA

AGGRAVATED FELONY " DRUG TRAFFICKING " SECOND POSSESSION CONVICTION
Matter of Cuellar-Gomez, 25 I&N Dec. 850, 861-862 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, after prior conviction of violation of a Wichita municipal ordinance prohibiting possession of marijuana, constituted a drug trafficking aggravated felony conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), since respondent was charged and convicted in Kansas for recidivist possession of a controlled substance).

AGGRAVATED FELONY - DRUG TRAFFICKING - SMALL QUANTITY
Matter of Aruna, 24 I.& N. Dec. 452 (BIA 2008) (Maryland misdemeanor conviction for violation of Maryland Criminal Law 5-602, distribution of a controlled substance, is an drug trafficking aggravated felony because the offense would be a felony if prosecuted under federal law; 21 U.S.C. 841(b)(4), which treats distribution of a small amount of marijuana without remuneration as a misdemeanor is not a separate federal offense, but rather a "mitigating exception" to the federal felony offense; therefore the categorical analysis is inapplicable to that section).

NOTE: A good example of outcome-based legal reasoning (and the BIA trying to have its cake and eat it too), this case may actually have some positive effect in fighting against Matter of Babaisakov, and other BIA attempts to avoid the categorical analysis. The BIA in this case pushes the "elements" vs. "facts" distinction very hard, providing language counsel can use in other cases.

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Matter of Thomas, 24 I.& N. Dec. 416, 418-419 (BIA Dec. 13, 2007) (Florida conviction for simple possession, in violation of Fla. Stat. 893.13(6)(a), which is a second possession conviction for the defendant, cannot constitute an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for immigration purposes, where there is no evidence that the court imposed additional punishment on basis of, or was even aware of, prior possession conviction; applying Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007) to case arising in a circuit without caselaw directly on this issue). NOTE: the BIA also noted that it did not appear that Florida law allowed the court to impose any additional punishment on the basis of recidivism.

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Matter of Thomas, 24 I.& N. Dec. 416, 418-419 (BIA Dec. 13, 2007) (state conviction for possession cannot constitute an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2000), unless it was committed after the first possession conviction became final by exhaustion of all avenues of direct appellate attack), citing United States v. Brazel, 102 F.3d 1120, 1163 (11th Cir. 1997) (holding that a prior conviction is "final" for purposes of the CSAs recidivism provisions when all avenues of direct appellate attack have been exhausted); United States v. Lippner, 676 F.2d 456, 467 (11th Cir. 1982).

POST-CONVICTION - EFFECT OF EXPUNGEMENT
Matter of Thomas, 24 I.& N. Dec. 416, 419 (BIA Dec. 13, 2007) (second possession conviction can constitute aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2000), even if court expunged first state conviction pursuant to a States rehabilitative procedures), citing United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006); United States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003); United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993).

AGGRAVATED FELONY - DRUG TRAFFICKING - QUESTION WHETHER SECOND POSSESSION CONSTITUTES AN AGGRAVATED FELONY IS A CRIMINAL LAW QUESTION ON WHICH BIA MUST DEFER TO SUPREME COURT AND RELEVANT CIRCUIT COURT DECISIONS
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA Dec. 13, 2007) (en banc) (whether a State drug conviction constitutes an "aggravated felony" by virtue of its correspondence to the Federal felony of "recidivist possession" is a criminal law question that must be determined in accordance with the decisional authority of the Supreme Court and the relevant Federal circuit courts of appeals, where such authority exists).

AGGRAVATED FELONY - DRUG TRAFFICKING - QUESTION WHETHER SECOND POSSESSION CONSTITUTES AN AGGRAVATED FELONY IS A CRIMINAL LAW QUESTION ON WHICH BIA MUST DEFER TO SUPREME COURT AND RELEVANT CIRCUIT COURT DECISIONS - RULE IN CIRCUITS THAT HAVE NOT YET DECIDED THE QUESTION
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 391, 394 (BIA Dec. 13, 2007) (en banc) (in circuits that have not yet decided the issue, BIA will not treat a State conviction for simple possession as an aggravated felony on the basis of recidivism unless the defendant's status as a recidivist drug offender was either admitted by the defendant or determined by a judge or jury in connection with his prosecution for that simple possession offense).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - FIFTH CIRCUIT RULE
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 391, 394 (BIA Dec. 13, 2007) (en banc) (Texas conviction for possession of less than 28 grams of alprazolam, in violation of Texas Health & Safety Code 481.117(b), qualifies as an "aggravated felony" conviction under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), in cases arising in the Fifth Circuit, because it was committed after the respondent's prior State "conviction" for a "drug, narcotic, or chemical offense" became "final" within the meaning of 21 U.S.C. 844(a), when all avenues of direct appellate review had been exhausted and respondent's status as a recidivist drug offender was either admitted by respondent or determined by a judge or jury in connection with a prosecution for that simple possession offense), following United States v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005), cert. denied, 546 U.S. 1137 (2006) (alternate holding that illegal reentry defendant's 2001 Colorado conviction for codeine possession qualified as a valid factual predicate for an "aggravated felony" illegal reentry sentence enhancement because the underlying offense was a "felony" under both State and Federal law, since it could have been punished under 21 U.S.C. 844(a) as a felony with a penalty of up to two years imprisonment), citing United States v. Simpson, 319 F.3d 81, 85-86 (2d Cir. 2002), superseded on other grounds by Lopez v. Gonzales, 127 S. Ct. 625, 633 (2006); see also United States v. Castro-Coello, 474 F. Supp. 2d 853, 859-62 (S.D. Tex. 2007), affd sub nom. United States v. Molina-Gonzales, 234 Fed. Appx. 319 (5th Cir., July 17, 2007) (No. 07-40279) (per curiam); see also United States v. Lopez-Molina, 494 F. Supp. 2d 517, 521-22 (W.D. Tex. 2007); United States v. Rodriguez-De Leon, 492 F. Supp. 2d 677, 680-82 (W.D. Tex. 2007).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - BIA RULE IN CIRCUITS THAT HAVE NOT YET DECIDED THE ISSUE
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 391 (BIA Dec. 13, 2007) (en banc) ("guidance," rather than holding) ("Importantly, however, all State recidivism prosecutions must correspond to the CSAs treatment of recidivism by providing the defendant with notice and an opportunity to be heard on whether recidivist punishment is proper. Oyler v. Boles, 368 U.S. 448, 452-53 (1962). In our view, these minimal requirements governing findings of recidivism are part and parcel of what it means for a crime to be a "recidivist" offense. Hence, we conclude - absent circuit law to the contrary - that a State conviction cannot "proscribe conduct punishable as" recidivist possession unless the State successfully sought to impose punishment for a recidivist drug conviction. This means that the respondents status as a recidivist drug possessor must have been admitted or determined by a court or jury within the prosecution for the second drug crime. It is not necessary, however, for the structure of the underlying State law to be comparable to the structure of the CSA. Lopez v. Gonzales, supra, requires a focus on a counterpart "offense," not a counterpart law. Thus, it is our understanding that a conviction under a particular States general recidivist statute may correspond to "recidivist possession" under the CSA, provided the relevant prior conviction was for a drug offense that had become "final" as of the date when the second offense was committed." (Footnote omitted.)).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - OPEN QUESTIONS UNDER BIA ANALYSIS
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 394 n.10 (BIA Dec. 13, 2007) (en banc) ("We do not now decide whether State criminal procedures must have afforded the alien an opportunity to challenge the validity of the first conviction in a manner consistent with 21 U.S.C. 851(c). See Steele v. Blackman, supra. Nor are we now concerned with the timing of notice, or with the burdens and standards of proof applicable to a defendants challenge to his status as a recidivist. We also reserve the question whether facts about the nature, timing, or finality of prior convictions must be established categorically or otherwise.").

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007) (absent controlling circuit court authority to the contrary, a noncitizens state conviction for a second or subsequent possession will not be considered an aggravated felony on the basis of recidivism unless the noncitizens status as a recidivist was either admitted by the noncitizen at plea or determined by a judge or jury in connection with a prosecution for the subsequent simple possession offense).

Note: this results in the following circuit court breakdown -

First Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Berhe v. Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006).

Second Circuit: a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. United States v. Simpson, 319 F.3d 81, 85-86 (2nd Cir. 2002).

Third Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Steel v. Blackman, 236 F.3d 130, 137-38 (3d Cir. 2001).

Fourth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007); Matter of Thomas, 24 I. & N. Dec. 414 (BIA 2007).

Fifth Circuit: a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. United States v. Sanchez-Villalobos, 412 F.3d 572, 576-577 (5th Cir. 2005).

Sixth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the first conviction was not yet final on the date of the second conviction. United States v. Palacios-Suarez, 418 F.3d 692, 700 (6th Cir. 2005).

Seventh Circuit: a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. United States v. Pacheco-Diaz, 506 F.3d 545-548-549 (7th Cir. 2007).

Eighth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007); Matter of Tomas, 24 I. & N. Dec. 414 (BIA 2007).

Ninth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004).

Tenth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007); Matter of Tomas, 24 I. & N. Dec. 414 (BIA 2007).

Eleventh Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007); Matter of Tomas, 24 I. & N. Dec. 414 (BIA 2007).

Second Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION CONVICTION HELD NOT TO BE AN AGGRAVATED FELONY
United States v. Ayon-Robles, ___ F.3d ___, 2009 WL 448184 (2d Cir. Feb. 24, 2009) (per curiam) (California second conviction of simple possession of a controlled substance did not constitute an aggravated felony, under INA 101(a)(43)(B), for illegal re-entry sentencing purposes), following Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008) (second felony conviction for simple drug possession was not an aggravated felony for purposes of the Immigration and Nationality Act of 1990, 8 U.S.C. 1101(a)(43)(B), where the noncitizen did not admit the prior in being convicted a second time).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION CONVICTION NOT AGGRAVATED FELONY
Alsol v. Mukasey, 548 F.3d 207 (2d Cir. Nov. 14, 2008) (New York conviction for simple possession, in violation of New York Penal Law 220.03, is not an aggravated felony, even though it was a subsequent conviction; "second conviction for simple controlled substance possession under state law is not a felony under the Controlled Substances Act because the offense of conviction does not proscribe conduct punishable as a felony as it does not correspond in any meaningful way with the federal crime of recidivist possession even if it could have been prosecuted in state court as a recidivist offense. We further clarify that our decision in United States v. Simpson, 319 F.3d 81 (2d Cir.2002), did not hold to the contrary.").

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - SECOND STATE DRUG CONVICTION NOT AGGRAVATED FELONY UNDER GUIDELINES BECAUSE PRIOR NOT SHOWN TO HAVE BEEN FINAL PRIOR TO COMMISSION OF SECOND OFFENSE
United States v. Andrade-Aguilar, 570 F.3d 213 (5th Cir. May 27, 2009) (defendant's first state drug possession conviction was not "final" before commission of second possession offense, and thus second offense could not be aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), since it could not have constituted felony conviction if it had been prosecuted in federal court, for purposes of imposing a sentence enhancement under USSG 2L1.2(b)(1) for illegal reentry; "to show finality, the Government was required to show by a preponderance of the evidence both that (1) Andrades July conviction was 'no longer subject to examination on direct appeal' within the meaning of Morales, and (2) that it was not subject to discretionary review by any court."); see United States v. Morales, 854 F.2d 65, 69 (5th Cir. 1988); Smith v. Gonzales, 468 F.3d 272, 277-78 (5th Cir. 2006) (discretionary review requirement).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. Jun. 4, 2008) (California conviction of sale of tar heroin, in violation of Health & Safety Code 11352, constituted a drug trafficking aggravated felony for illegal re-entry sentencing purposes; although misdemeanor possessory offense is not an aggravated felony by itself, because the conviction was a misdemeanor, defendants prior drug conviction made the conviction a felony under the hypothetical federal prosecution analysis; court did not address argument that prior must be proven in subsequent conviction), following United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005) (second state conviction of possession of a controlled substance constituted an aggravated felony, triggering an eight-level enhancement of an illegal reentry sentence, because it "could have been punished under [21 U.S.C.] 844(a) as a felony with a penalty of up to two years imprisonment).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION
United States v. Gutierrez-Bautista, __ F.3d __, 2007 WL 2153214 (5th Cir. Jul. 27, 2007) (Georgia conviction for violation of Ga.Code Ann. 16-13-31(e) (1999), punishing any "person who knowingly sells, manufactures, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine" is categorically a "drug trafficking" offense for illegal re-entry sentencing purposes, because Georgias sentencing laws impute an intent to distribute to a conviction for possession of 28 grams or more of methamphetamine.) Note: while the appellant raised the issue of whether the prior offenses must be found by a jury to convict of illegal re-entry, the appellant apparently did not raise the issue of whether Georgias sentencing scheme could alter the nature of the offense (from simple possession to drug trafficking), absent as specific finding by a jury.

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
Salazar-Regino v. Trominski, __ F.3d __, 2007 WL 457992 (5th Cir. Feb. 14, 2007) (vacating prior decision in light of Lopez v. Gonzales, 549 U.S. ___, 127 S. Ct. 625 (2006), and remanding to BIA).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION CONVICTION CANNOT CONSTITUTE FELONY IN FEDERAL COURT
United States v. Arnold, 467 F.3d 880, 886-87 (5th Cir. 2006) (a federal judge has no authority to impose a felony sentence on a recidivist convicted of a second possession offense under the CSA unless, prior to trial or plea, the prosecutor filed and served an "enhancement information" pursuant to 21 U.S.C. 851(a) (2000), the purpose of which is to provide the defendant with notice and an opportunity to review allegations of previous convictions for accuracy, to contest the use of such convictions, to create a trial strategy, and to evaluate the consequences of a jury verdict).

Sixth Circuit

AGGRAVATED FELONY - CONTROLLED SUBSTANCES - SECOND FELONY
Rashid v. Mukasey, 531 F.3d 438 (6th Cir. Jun. 26, 2008) (Michigan conviction of possession of a controlled substance, where the defendant has a prior conviction for the same offense, is not an aggravated felon under INA 101(a)(43)(B) for immigration purposes; "The first and only hypothetical that should be considered under the hypothetical federal felony approach is whether the crime that an individual was actually convicted of would be a felony under federal law. See Steele, 236 F.3d at 138 (explaining that the aggravated felony disability under the [INA] applies only if there has been a conviction of a felony). But by looking to facts not at issue in the crime of conviction in order to determine whether an individual could have been charged with a federal felony, our sister circuits, the IJ, and the BIA have considered an impermissible second hypothetical. We conclude that inclusion of the word hypothetical in the hypothetical federal felony approach does not provide the government with free reign to make ex-post determinations of what federal crimes an individual could hypothetically have been charged with where, as here, a prior drug-possession conviction was not at issue in the prosecution of the subsequent drug-possession offense.").

Seventh Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Fernandez v. Mukasey, 544 F.3d 862 (7th Cir. Sept. 15, 2008) (subsequent conviction for simple possession of marijuana triggers removal as an aggravated felony drug trafficking offense, even where the state of conviction did not charge or prove that the defendants had previously been convicted of simple possession).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION CONVICTION
United States v. Pacheco-Diaz, ___ F.3d ___, 2008 WL 220692 (7th Cir. Jan. 29, 2008) (opinion on denial of rehearing) (Illinois second conviction of simple possession of marijuana constitutes a drug trafficking aggravated felony, within the meaning of 8 U.S.C. 1101(a)(43), for purposes of imposing a sentence enhancement for illegal reentry under USSG 2L1.2(b)(1)(C), because 21 U.S.C. 844(a) treats possessing marijuana that way if the defendant already has one marijuana-possession conviction on his record), disagreeing with Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007) (state marijuana-possession offense is an aggravated felony under 1101(a)(43) only if the noncitizen was charged as a recidivist in state court).

AGGRAVATED FELONY - SIMPLE POSSESSION - SECOND POSSESSION
United States v. Pacheco-Diaz, __ F.3d __, 2008 WL 220692 (7th Cir. Jan. 29, 2008) (petition for rehearing en banc denied; second simple possession conviction is an aggravated felony regardless of whether the first simple possession was charged as a prior in prosecution for the second offense). Note: one of the three judges dissented from this denial.

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
United States v. Pacheco-Diaz, __ F.3d __, 2007 WL 3071682 (7th Cir. Oct. 23, 2007) (Illinois conviction for felony simple possession of marijuana, in violation of 720 ILCS 550/4, is an aggravated felony for sentencing purposes where noncitizen has prior possession conviction; court rejected argument that state court must have proven prior conviction as an element of the second conviction, finding that it only needs to be hypothetically possible that the noncitizen could have been subject to the federal recidivist enhancement).

Eighth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION OF CONTROLLED SUBSTANCES NOT AGGRAVATED FELONIES UNDER LOPEZ
Tostado v. Carlson, 481 F.3d 1012 (8th Cir. April 2, 2007) (Illinois convictions for the unlawful possession of cocaine and unlawful possession of cannabis are not aggravated felonies for immigration purposes), following Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625 (2006).

Ninth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION
United States v. Figueroa-Ocampo, __ F.3d __, 2007 WL 2104787 (9th Cir. July 24, 2007) (under the Supreme Court's recent decision in Lopez v. Gonzales, 127 S. Ct. 625 (2006), simple possession cannot be treated as an aggravated felony for sentencing purposes unless possession of the particular drug would be a felony if prosecuted under federal law).

AGGRAVATED FELONY - DRUG TRAFFICKING - LOPEZ STRENGTHENS ARGUMENT THAT STATE REHABILITATIVE RELIEF ANALOGOUS TO THE FEDERAL FIRST OFFENDER ACT DISQUALIFIES PRIOR CONVICTION FROM ACTING AS A PRIOR FOR THE PURPOSE OF ELEVATING MISDEMEANOR SIMPLE POSSESSION CONVICTION TO FEDERAL FELONY SECOND POSSESSION SO AS TO CONSTITUTE AN AGGRAVATED FELONY DRUG TRAFFICKING CONVICTION
United States v. Norbury, 492 F.3d 1012, ___ (9th Cir. Jun. 25, 2007) (determination of whether current controlled substances offense was committed after a prior conviction for a felony drug offense has become final, so as to enhance federal sentence under 21 U.S.C. 841(b)(1)((A)-(D) is made under federal law, not state law; under federal law: "An expunged or dismissed state conviction qualifies as a prior conviction if the expungement or dismissal does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime."), following Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 115, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - NINTH CIRCUIT RULE IN JEOPARDY?
Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004) (an adjudicator cannot consider recidivist sentencing enhancements when seeking to determine whether a State offense constitutes a drug trafficking aggravated felony); see Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 386 n.3 (BIA Dec. 13, 2007) (en banc) ("The rationale for this restrictive interpretation [in Ferreira], which seems in tension with Lopez v. Gonzales, supra, at 631 n.6, is subject to a Supreme Court challenge in a context different from the one now before us. United States v. Rodriquez, 464 F.3d 1072 (9th Cir. 2006), cert. granted, 128 S. Ct. 33 (2007) (No. 06-1646).").

Tenth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION CONVICTION CANNOT BE AGGRAVATED FELONY
Gradiz v. Gonzales, 490 F.3d 1206, ___ (10th Cir. Jun. 20, 2007) (Wyoming felony controlled substances conviction cannot constitute an aggravated felony as a "drug trafficking crime," under 18 U.S.C. 924(c)(2) ("any felony punishable under the Controlled Substances Act, 21 U.S.C. 801 et seq."), since Lopez v. Gonzales, 127 S.Ct. 625, 629 (2006), held that state felony convictions of whether crimes that are misdemeanors under federal controlled substances statutes but felonies under state law could not qualify as aggravated felonies under the aggravated felony definition), following United States v. Martinez-Macias, 472 F.3d 1216 (10th Cir. 2007); disapproving United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996).

Other

AGGRAVATED FELONY " SIMPLE POSSESSION " CRACK COCAINE
Fair Sentencing Act Alters Immigration Treatment of Crack Convictions On August, 3, 2010, President Obama signed into law the Fair Sentencing Act, Pub. L. 111-220, which reduces the discriminatory treatment of crack and powder cocaine under federal sentencing laws. Before the Fair Sentencing Act became law, 21 USC 844(a) provided that a conviction for possession of more than five grams of crack cocaine was a felony. As a felony under the Controlled Substances Act, a conviction for more than five grams of crack cocaine met the definition of aggravated felony under 8 USC 1101(a)(43). See Lopez v. Gonzales, 549 U.S. 47, 59 (2006). Section 3 of the Fair Sentencing Act amended 21 USC 844(a) by deleting the language that made a conviction for simple possession of more than five grams of crack cocaine a felony. Under 21 USC 844(a), as amended by the Fair Sentencing Act, possession of any quantity of crack cocaine is now a misdemeanor. This means that a conviction for possession of crack cocaine can no longer be a conviction for an aggravated felony. Arguably, a conviction for more than five grams of cocaine can no longer be an aggravated felony regardless of the date of conviction because such a conviction no longer fits the definition in 8 USC 1101(a)(43). See Squires v. INS, 689 F.2d 1276 (6th Cir. 1982) (applying amended sentence maximum to petty offense exception). Thanks to Dan Kesselbrenner

AGGRAVATED FELONIES - DRUG TRAFFICKING - POSSESSION - SECOND POSSESSION
For those litigating challenges to drug aggravated felony charges post-Lopez, the NYSDA Immigrant Defense Project has updated its "Practice Advisory: Removal Defense of Immigrants in Drug Possession Cases - The Impact of Lopez v. Gonzales." http://www.nysda.org/idp/docs/07_PostLopezAdvisoryforRemovalDefense41207.pdf. Also available on the IDP website are copies of amicus briefs addressing post-Lopez issues filed before the Board of Immigration Appeals and before the Second, Fifth, and Eleventh Circuits. http://www.nysda.org/idp/webPages/drugLitigationInit.htm Thanks to Manny Vargas.

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION WITH SOLICITATION PRIOR
A second conviction of possession of a federally listed controlled substance, preceded by a prior conviction of solicitation to commit a controlled substances offense, can potentially constitute an aggravated felony drug trafficking offense. This is because the solicitation prior can constitute a prior, in federal court, to elevate the second possession conviction to an aggravated felony. A solicitation conviction is not interpreted under the criminal recidivist provisions as it is under the federal immigration laws, because different language is used. The same is true of the Federal First Offender Act, 18 U.S.C. 3607. A prior drug conviction will disqualify a defendant from FFOA treatment, if it is a crime under state law, even if it does not involve a federally listed offense and even if it is a solicitation conviction.

ARTICLE - AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - CIRCUIT BREAKDOWN OF CIRCUMSTANCES UNDER WHICH SECOND POSSESSION CONVICTION CONSTITUTES AGGRAVATED FELONY
The general rule is that a conviction of simple possession of a controlled substance cannot constitute an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B). Lopez v. Gonzales, 549 U.S 47 (2006). Two exceptions are simple possession of any amount of flunitrazepam (the date-rape drug) or over five grams of crack cocaine. Id. at ____. The only other possible time a simple possession conviction might constitute an aggravated felony is when it is a second or subsequent conviction of possession of a federally listed controlled substance. This is because a second conviction would sometimes constitute a felony if it had been prosecuted in federal court.

The BIA has held that a second conviction of possession of a controlled substance can constitute an aggravated felony only if the prior drug conviction was pleaded and proven, beyond a reasonable doubt, or admitted by the defendant to be true, during the prosecution of the second offense. Matter of Carachuri, 24 I. & N. Dec. 382, 394 (BIA 2007) (en banc); Matter of Thomas, 24 I_&_N Dec. 416 (BIA 2007). It held this default rule would apply in all circuits that have not held to the contrary. At this time, the default rule applies in all circuits except the Fifth and Seventh Circuits, which hold a second possession conviction is an aggravated felony, even though the first was not pleaded and proven or admitted. United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. 2008); Fernandez v. Mukasey, 544 F.3d 862 (7th Cir. 2008). The First, Second, Third, Sixth, and Ninth Circuits specifically follow the default or majority rule. Berhe v. Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006); Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008); Steele v. Blackman, 236 F.3d 130, 137-38 (3d Cir. 2001); Rashid v. Mukasey, 531 F.3d 438, 442-48 (6th Cir. 2008); Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. 2004). The Fourth, Eighth, Tenth and Eleventh Circuits as yet have no reported decisions on this point. For an excellent practice advisory on this point, see NYSDA Immigrant Defense Project, Using Lopez v. Gonzales to Challenge Aggravated Felony Drug Trafficking Charges or Bars on Relief, http://www.immigrantdefenseproject.org/webPages/crimJustice.htm (May 19, 2008, visited Jan. 30, 2009).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - MINNESOTA
Under Minnesota law, a second conviction of possession of a controlled substance has a recidivist sentencing enhancement, providing for a mandatory sentence of six months. Minnesota law explicitly provides that "a disposition" under Minn. Stat. 152.18 (deferred adjudication) is a "prior controlled substance offense" for purposes of applying the recidivist sentencing enhancement. This is analogous to the Federal First Offender Act, 18 U.S.C. 3607. Under federal law, a first disposition under 18 U.S.C. 3607 disqualifies the defendant from FFOA treatment for the second offense only if the first disposition has become final prior to the commission of the second offense. Immigration counsel can argue that a state law disposition under a first offender program similar to the FFOA has not become final for purposes of 21 U.S.C. 844(a), where the offender is still on probation and has not had the charge dismissed or adjudication of guilt entered. But see United States v. Varela, 993 F.2d 686 (9th Cir. 1993) (an offense that is not expunged before the second offense was committed is "final" under federal law, for purposes not related to drug recidivist enhancements, even if it could have been expunged). This decision, however, was in a case in which the plea had been accepted, and imposition of sentence was stayed, rather than not a stayed adjudication of guilt. Counsel could argue this difference should change the outcome. Carachuri should control when it is decided by the United States Supreme Court.

SUPREME COURT HOLDS SECOND POSSESSION OFFENSE IS NOT AN AGGRAVATED FELONY
In a unanimous decision in Carachuri-Rosendo v. Holder, the Supreme Court held that a second or subsequent simple drug possession conviction does not qualify as an aggravated felony under INA 101(a)(43)(B) ("drug trafficking crimes") and therefore does not bar a lawful permanent resident from applying for cancellation of removal. The case followed from the Supreme Courts decision in Lopez v. Gonzales, 549 U.S. 47 (2006), finding that a single drug possession conviction is not an aggravated felony. After Lopez, a circuit split developed regarding whether a second possession conviction can qualify as an aggravated felony. Under federal law, a person with a previous possession conviction may receive a felony sentence for a subsequent possession offense but only if the prosecutor sought and obtained a recidivist sentencing enhancement. The Supreme Court rejected the governments argument that hypothetically, Carachuri-Rosendos conduct could have received felony treatment under federal law. The Court found that immigration officials must look to what the person was actually convicted of, as opposed to what might have been charged by prosecutors. It also noted that Carachuri-Rosendo was not afforded the notice and process required for a conviction in federal court on a felony possession charge.