Gerbier v. Holmes: 3d Circuit Finds Delaware Felony Drug Possession Not an Aggravated Felony

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

GERBIER V. HOLMES: 3D CIRCUIT FINDS DELAWARE FELONY DRUG POSSESSION NOT AN AGGRAVATED FELONY
Immigrants' Rights Update, Vol. 16, No. 2, April 12, 2002

The U.S. Court of Appeals for the Third Circuit has ruled, on a petition for review of a removal order, that a Delaware felony drug offense does not constitute a "drug trafficking" aggravated felony because it neither contains a trafficking element nor would be punishable as a felony were the offense to be prosecuted federally. The decision applies the analysis used by the Board of Immigration Appeals in Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990), Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), and Matter of L-G-, 21 I. & N. Dec. 89 (BIA 1995). The court rejected the analysis used by a number of circuits that have found such state felonies to constitute aggravated felonies, albeit for purposes of sentencing under federal sentencing guidelines rather than for deportation purposes.

The respondent in this case, a Mr. Gerbier, is a Haitian national who became a lawful permanent resident in 1984. In May 1996, he was arrested for possession of marijuana in Wilmington, Delaware, and in February 1997 he pled guilty to the charge of possession of marijuana and was placed on probation for three years. In June 1997 he was again arrested in Wilmington and this time charged with trafficking in crack cocaine. In August 1997 he pled guilty to the lesser included offense of "trafficking in cocaine" under a statute prohibiting not only actions of sale or manufacture but also simple possession, and the factual basis for the plea was possession. Gerbier was sentenced to a boot camp program for six months, followed by supervision for not less than two and a half years.

In 1999, Gerbier was issued a notice to appear for removal proceedings. At his removal hearing, the immigration judge concluded that he was not removable as an aggravated felon and granted his application for cancellation of removal. The Immigration and Naturalization Service appealed, and the BIA sustained the appeal. The BIA concluded that the cocaine offense would have been punishable as a felony under federal law because of Gerbier's prior marijuana conviction. The BIA therefore concluded that the conviction constitutes an "aggravated felony" and issued a removal order. Gerbier filed a habeas petition to review this decision. The district court upheld the BIA's decision, and Gerbier appealed.

Section 101(a)(43)(B) of the Immigration and Nationality Act defines as an aggravated felony "illicit trafficking in a controlled substance (as defined in section 802 of Title 21) including a drug trafficking crime (as defined in section 924(c) of Title 18)."

In its decision on appeal, the Third Circuit contrasted three alternative approaches for deciding whether a state drug offense conviction constitutes an aggravated felony under this provision: the BIA's "Davis/Barrett" approach, the approach used by several courts of appeal in cases concerning federal sentencing guidelines, and the approach urged by Gerbier. Under the Davis/Barrett approach, a state felony drug offense constitutes an aggravated felony if it either contains a "trafficking element" (i.e., involves the unlawful trading or dealing of a controlled substance) or if it is analogous to a felony offense punishable under the federal statute, 18 U.S.C. section 924(c)(2). The court characterized this analogy to federal law as the "hypothetical federal felony" test.

The second approach to determine whether a state felony conviction is encompassed within INA section 101(a)(43)(B) has been used by other circuits (the First, Second, Fifth, Eighth, Ninth, Tenth, and Eleventh) to decide whether a criminal sentence is subject to enhancement under federal sentencing guidelines. Those guidelines apply an enhancement where the defendant reentered the United States after having been removed based on an aggravated felony conviction. The court termed the analysis used by these courts the "guidelines" approach. Under this approach, any offense punishable under 21 U.S.C. section 802 is considered an aggravated felony if it is a felony under either state or federal law. See United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. 1996). Under this approach, Gerbier's conviction would be considered an aggravated felony.

The third approach, proposed by Gerbier, would limit the reach of INA section 101(a)(43)(B) to offenses that have trafficking as an integral element. The court noted that the Third Circuit has previously observed that this argument has "some intuitive appeal" based on the literal language of the statute. However, the court concluded that the statute's legislative history forecloses this approach.

Comparing the first and second approaches, the court concluded that, at least for purposes of deportation, the Davis/Barrett approach is most appropriate. The court found that this approach reflects Congress's intent to establish a uniform immigration law. The court agreed with the BIA that the federal definition of "felony" of 18 U.S.C. section 3559(a)(5) (an offense with a maximum sentence of imprisonment for more than one year) is controlling for this purpose, rather than letting each state define the scope of a felony conviction.

The court also noted that under this approach a misdemeanor conviction constitutes an aggravated felony if it could be prosecuted federally as a felony. The court cautioned that, because of the informality of misdemeanor proceedings, the court must make certain that each and every element of the hypothetical federal felony is met before finding that a conviction constitutes an aggravated felony.

In this case, the BIA found that the state conviction constitutes an aggravated felony based on the finding that the offense could have been prosecuted federally as a felony on account of the prior misdemeanor marijuana conviction. The BIA reached this conclusion because under 21 U.S.C. section 844(a) a federal drug possession charge can be raised to a felony based on a prior misdemeanor conviction. However, in Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001), the Third Circuit found that a state drug conviction can be treated as a hypothetical federal felony based on a prior drug conviction only if there were equivalent procedural safeguards. Federally, a prior conviction must be charged and proved in the second prosecution in order to elevate it to a felony charge. However, in the state proceedings against Steele and against Gerbier, the prior conviction was never charged or litigated in the second state prosecution. The court therefore concluded that Gerbier's conviction does not constitute a hypothetical federal felony and cannot be considered an aggravated felony.

Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002).