9th Circuit Finds State Felony Conviction For Simple Drug Possession Is Not An Immigration Aggravated Felony

IMMIGRATION LAW & POLICY

Removal Issues
Concerning Criminal Convictions

9th Circuit finds state felony conviction for simple drug possession is not an immigration aggravated felony
Immigrants' Rights Update, Vol. 18, No. 6, September 21, 2004

A panel of the U.S. Court of Appeals for the Ninth Circuit has granted rehearing and issued a new decision in Cazarez-Gutierrez v. Ashcroft, finding that a state felony conviction for simple possession of a controlled substance is not an “aggravated felony” for immigration purposes. The ruling establishes that in the Ninth Circuit no state conviction for simple possession of a controlled substance is an “aggravated felony” for immigration purposes, unless the offense either has a trafficking element or is punishable as a felony under federal drug laws.

The court issued the ruling on a petition for rehearing with an unusual procedural history. The court first ruled on the case in January, finding that the respondent’s conviction did not constitute an aggravated felony for immigration purposes. Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. 2004). On that basis, the court granted the petition for review and remanded the case to the Board of Immigration Appeals to adjudicate the petitioner’s application for cancellation of removal (see “9th Circuit Overturns BIA Finding That State Conviction for Simple Drug Possession Is ‘Aggravated Felony,’” Immigrants’ Rights Update, Feb. 17, 2004, p. 6). After that opinion issued, the court ordered supplemental briefing on whether the court is divested of jurisdiction over the petition for review by section 242(a)(2)(C) of the Immigration and Nationality Act. Section 242(a)(2)(C) bars appellate jurisdiction over petitions for review filed by immigrants who are removable for having committed certain criminal offenses, including not only aggravated felonies, but also any controlled substance offense. Cazarez-Gutierrez v. Ashcroft, 366 F.3d 736 (9th Cir. 2004) (see “9th Circuit Withdraws Opinion in Cazares-Gutierrez v. Ashcroft,” IRU, May 20, 2004, p. 9).

In the latest ruling, the court reaffirmed its holding that the conviction does not constitute an aggravated felony, basing its jurisdiction for the ruling on its authority to determine its jurisdiction. The court then found that, because the conviction does constitute a controlled substance conviction, it did not have jurisdiction to resolve the petition. Instead, the court determined that the petition for review should be construed as a habeas petition and remanded to federal district court, and the court entered judgment remanding the petition.

Cazares-Gutierrez v. Ashcroft, __ F.3d __, 2004 US App. LEXIS 17947 (9th Cir. Aug. 24, 2004).