9th Circuit Overturns BIA Finding That State Conviction For Simple Drug Possession Is "Aggravated Felony"

IMMIGRATION LAW & POLICY

Removal Issues
Concerning Criminal Convictions

9th Circuit overturns BIA finding that state conviction for simple drug possession is "aggravated felony"
Immigrants' Rights Update, Vol. 18, No. 1, February 17, 2004

The U.S. Court of Appeals for the Ninth Circuit has issued a decision rejecting the finding of the Board of Immigration Appeals that an Arizona conviction for possession of methamphetamine constitutes an "aggravated felony" for purposes of immigration law. The conviction was a felony under Arizona law but under federal law could only have been prosecuted as a misdemeanor. The court concluded that for a drug conviction to constitute an aggravated felony for immigration purposes, it must either have a trafficking element or be punishable as a felony under federal drug laws.

In so ruling, the court distinguished between the determination of what constitutes an aggravated felony for purposes of sentence enhancement and the determination for immigration purposes. The Ninth Circuit and most other circuits have found that for purposes of applying federal sentencing guidelines that require an increased sentence where an immigrant has illegally reentered the United States following removal for having committed an "aggravated felony," a drug conviction with no trafficking element is considered an aggravated felony if it is classified as a felony under the law of the jurisdiction under which the conviction is obtained, whether state or federal. In distinguishing between this context and that of immigration law, the court reasoned that the need for national uniformity is a fundamental concern of immigration law, whereas criminal sentencing is primarily a state function. Applying a uniform federal standard to the determination of what constitutes an aggravated felony for immigration purposes ensures that fortuitous differences in state laws do not result in nonuniform differences in treatment under immigration law of similarly situated immigrants. Both the Second and Third Circuits have issued rulings that make this distinction. Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996); Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002).

As an example of the discrepancies that would arise from allowing differences in state laws to determine what constitutes an aggravated felony for immigration law purposes, the court noted that possession for one's own use of 30 grams or less of marijuana would not be a deportable offense, much less an aggravated felony, in most states; however, in North Carolina it would constitute an aggravated felony, barring nearly all forms of relief from removal, if the state definition were controlling.

The decision rejects the rule announced by the BIA in Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002). In Yanez the BIA abandoned its prior precedent decision of Matter of K-V-D-, 22 I. & N. Dec. 89 (BIA 1999), in which it distinguished between the purposes of sentence enhancement and immigration law, and fashioned a federal standard to ensure uniformity in determining when a drug conviction is considered an aggravated felony for immigration purposes. Noting that the Fifth Circuit had rejected its approach in K-V-D-, the BIA decided to abandon it and instead to follow the law of the circuit in which each case arises, including criminal law precedent. Thus, in circuits with no immigration law precedent on this issue, but with precedent regarding the definition of "aggravated felony" for sentence enhancement purposes, such as the Ninth Circuit prior to this most recent decision, the BIA would simply apply the criminal law precedent (for a fuller description of Yanez, see "BIA Will Follow Federal Criminal Precedent in Determining whether State Drug Offenses Constitute 'Drug Trafficking' Aggravated Felonies," IMMIGRANTS' RIGHTS UPDATE, May 30, 2002, p.3). Subsequently, even though the Second Circuit had distinguished between the criminal and immigration law contexts for aggravated felony determinations in Aguirre, the BIA decided to apply the Second Circuit's criminal law precedent to the immigration law determination, in Matter of Elgendi, 23 I. & N. Dec. 515 (BIA 2002), reasoning that the Second Circuit's prior decision was based on uniformity considerations which the BIA now rejects.

The court concluded that, because the petitioner's offense does not involve a trafficking element and is not punishable as a felony under federal law, it does not constitute an aggravated felony for immigration purposes. Accordingly, the BIA erred in finding him ineligible for cancellation of removal, and the court remanded the case for further proceedings.

Cazarez-Gutierrez v. Ashcroft, __ F.3d __, No. 02-72978 (9th Cir. Jan. 26, 2004).