Matter of Yanez-Garcia: BIA Will Follow Federal Criminal Precedent in Determining Whether State Drug Offenses Constitute "Drug Trafficking" Aggravated Felonies

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

MATTER OF YANEZ-GARCIA: BIA WILL FOLLOW FEDERAL CRIMINAL PRECEDENT IN DETERMINING WHETHER STATE DRUG OFFENSES CONSTITUTE "DRUG TRAFFICKING" AGGRAVATED FELONIES
Immigrants' Rights Update, Vol. 16, No. 3, May 30, 2002

The Board of Immigration Appeals, in an en banc precedent ruling, has overruled prior decisions that sought to establish a federal standard for determining whether state drug offenses constitute "drug trafficking" crimes for purposes of determining whether the conviction establishes deportability as an "aggravated felony" conviction.

The overruled decisions had distinguished appellate rulings in federal criminal cases concerning whether state offenses came within the definition of "drug trafficking" offenses so as to constitute aggravated felonies, on the grounds that those rulings were made for a different purpose—to determine whether a sentence enhancement applied to a defendant, rather than whether the individual was deportable. The new BIA decision rejects the attempt to fashion a uniform federal definition for deportability purposes different than the standard for sentence enhancement purposes. Under the new decision, the BIA will follow such appellate rulings, and, in cases arising in circuits that have not yet decided this issue, the BIA will follow the standards that have been adopted by a majority of circuits. Under the new rule, state convictions for simple possession that could be prosecuted federally only as misdemeanors are considered "aggravated felonies" if the offenses are classified as felonies under state law.

The respondent in this case was convicted twice for possession of cocaine under an Illinois statute classified as a "class 4 felony" under Illinois law. The convictions were for simple possession, with no "trafficking" element. Neither offense could have been prosecuted federally as a felony, because the first conviction was not final when the second possession offense occurred. The issue before the BIA, therefore, was whether a state felony offense that has no "trafficking" element and that could not have been prosecuted federally as a felony nonetheless constitutes an aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act.

Under section 101(a)(43)(B), the definition of an "aggravated felony" includes "illicit trafficking in a controlled substance . . . including a drug trafficking crime (as described in [18 U.S.C. section 924(c)])." The latter provision defines a "drug trafficking crime" as "any felony punishable under" one of three federal drug statutes. In Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), the BIA held that a state drug conviction meets this definition only if it either (1) was a felony under state law and contained a "trafficking" element, or (2) was analogous to an offense that would be punishable as a felony under one of the federal drug laws specified in section 924(c). The BIA adopted this standard in order to promote a uniform federal standard. It followed this rule in Matter of L-G-, 21 I. & N. Dec. 89 (BIA 1995), and in Matter of K-V-D-, Int. Dec. 3422 (BIA 1999), finding that state convictions classified as felonies under state law did not constitute aggravated felonies because they did not contain a trafficking element and could have been prosecuted only as misdemeanors under federal drug laws.

In deciding now to abandon this standard, the BIA noted that several circuit courts of appeal ruling in criminal cases have used a different analysis. In these cases, the issue has been whether a drug trafficking conviction constitutes an "aggravated felony" such as to require a sentence enhancement when the defendant is convicted for reentry following a removal based on an aggravated felony conviction. These courts have concluded that a drug conviction with no trafficking element constitutes an aggravated felony if it is classified as a felony under the law of the jurisdiction under which the conviction is obtained, whether that jurisdiction is state or federal. U.S. v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. 1996); U.S. v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2000), cert. denied, 122 S.Ct. 305 (2001); U.S. v. Briones-Mata, 116 F.3d 308 (8th Cir. 1997); U.S. v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000), cert. denied, 531 U.S. 1102 (2001); U.S. v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996); and U.S. v. Simon, 168 F.3d 1271 (11th Cir. 1999); cert. denied, 528 U.S. 844 (1999). On the other hand, two circuits have adopted the BIA's interpretation in immigration cases. Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996).

In its decision in K-V-D-, the BIA distinguished the circuit court criminal decisions finding state felony convictions to be aggravated felonies even though they could not have been prosecuted federally as felonies on the grounds that the definition for criminal sentence enhancement serves different purposes than for removal. Only the Fifth Circuit has expressly rejected this distinction, again in a criminal case. Hernandez-Avalos, supra. Following that decision, the BIA overruled K-V-D- and held that it will follow Hernandez-Avalos in cases arising in the Fifth Circuit. Matter of Salazar, 23 I. & N. Dec. 223 (BIA 2002) (see "BIA Rules that State Deferred Adjudication of First-Time Drug Offense Does Not Eliminate Effect of Conviction for Immigration Purposes," Immigrants' Rights Update, Apr. 12, 2002, p. 4). Now the BIA has decided to abandon the effort to establish a uniform federal standard and instead will follow circuit court criminal precedent. In those circuits that have not ruled on this issue, the BIA will follow the rule that the majority of circuits have adopted.

Under the BIA's new rule, state court felony convictions will still have to be prosecutable as federal felonies in order to constitute aggravated felonies for immigration purposes in the Second and Third Circuits. The decision does not state what rule the BIA will follow in the First Circuit, which has followed the majority rule for criminal sentence enhancement purposes but expressly distinguished its ruling from the immigration context. Restrepo-Aguilar, supra. This case arose in the Seventh Circuit, which has not ruled on the issue. The BIA therefore followed the majority rule, finding that the state felony conviction constitutes an aggravated felony, even though it could have been prosecuted federally only as a misdemeanor.

Advocates representing respondents affected by the BIA's new rule should investigate the possibility of using state procedures to reduce a felony conviction to a misdemeanor. See La Farga v. INS, 170 F.3d 1213 (9th Cir. 1999) (Arizona conviction reduced to misdemeanor treated as misdemeanor for immigration purposes); Matter of Song, 23 I. & N. Dec. 173 (BIA 2001) (one-year sentence for theft subsequently reduced to 360 days no longer constitutes an aggravated felony theft offense because sentence under one year). In addition, in the Ninth Circuit, the expungement of a first-time drug possession offense eliminates its immigration effects. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

Matter of Yanez-Garcia, 23 I. & N. Dec. 390, Int. Dec. 3473 (BIA May 13, 2002).