SANTOS-LOPEZ

Cite as 

 (BIA 2002)                                  Interim Decision #3474




         In re Walter Antonio SANTOS-LOPEZ, Respondent
                             File A91 826 777 - Houston
                                Decided May 14, 2002
                          U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) Under the decisions of the United States Court of Appeals for the Fifth Circuit in United
   States v. Hernandez-Avalos, 

 (5th Cir.), cert. denied, 

 (2001),
   and United States v. Hinojosa-Lopez, 

 (5th Cir. 1997), a determination
   whether an offense is a “felony” for purposes of 

(c)(2) (2000) depends on
   the classification of the offense under the law of the convicting jurisdiction. Matter of
   Yanez, 

 (BIA 2002), followed.
(2) Each of the respondent’s two convictions for possession of marihuana is classified as
   a misdemeanor offense under Texas law; therefore, neither conviction is for a “felony”
   within the meaning of 

(c)(2) or an “aggravated felony” within the meaning
   of section 101(a)(43)(B) of the Immigration and Nationality Act, 

(a)(43)(B)
   (2000).
FOR RESPONDENT: Isaias D. Torres, Esquire, Houston, Texas

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: John Donovan, Assistant
District Counsel
BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman;
        SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE,
        GUENDELSBERGER, ROSENBERG, GRANT, MOSCATO, MILLER,
        BRENNAN, ESPENOZA, OSUNA, OHLSON, HESS, and PAULEY, Board
        Members.

GUENDELSBERGER, Board Member:

   The respondent appeals from an Immigration Judge’s decision finding him
removable as charged and ineligible for any relief from removal. The appeal
will be sustained and the record will be remanded for further proceedings.
   The respondent is a native and citizen of El Salvador whose status was
adjusted to that of a lawful permanent resident on October 27, 1989. The
record reflects that he has two Texas state court convictions for possession
of marihuana in the quantity of 0-2 ounces, both in violation of section
481.121 of the Texas Penal Code. His offenses are “class B misdemeanors,”
punishable under Texas law by “confinement in jail for a term not to exceed
180 days” and/or a fine not to exceed $2,000. See Tex. Penal Code Ann.

                                            419
Cite as 

 (BIA 2002)                               Interim Decision #3474



§ 12.22 (Vernon 1997). For the first conviction, on February 28, 1997, the
respondent was sentenced to 35 days in county jail; for the second conviction,
on May 21, 1998, he was sentenced to 36 days in county jail.
   The issue in this case is whether the respondent’s state drug convictions
fall within the definition of a “drug trafficking crime” contained in 

(c)(2) (2000), such that either may be considered an aggravated felony
under section 101(a)(43)(B) of the Immigration and Nationality Act, 

(a)(43)(B) (2000).
   Section 101(a)(43) of the Act defines the categories of offenses considered
“aggravated felonies” under the immigration laws and provides that the term
aggravated felony “applies to an offense described in this paragraph whether
in violation of Federal or State law.” A “drug trafficking crime (as defined
in section 924(c) of title 18, United States Code),” which is included in
section 101(a)(43)(B) of the Act, is defined as follows:
  [T]he term “drug trafficking crime” means any felony punishable under the Controlled
  Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act
  (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901
  et seq.).

(c)(2).
   In Matter of Yanez, 

 (BIA 2002), we held that, because
the meaning of the phrase “drug trafficking crime” in 

(c)(2)
is a matter of federal criminal law, we will defer to the interpretation given
that statute by the federal circuit courts of appeals that have spoken on the
issue. We therefore turn to the law of the United States Court of Appeals for
the Fifth Circuit, within whose jurisdiction this matter arises.
   The Fifth Circuit has held that an offense is a “drug trafficking crime”
under § 924(c)(2) if it is (1) “‘punishable under the Controlled Substances
Act’” and (2) “‘a felony’ under either state or federal law.” United States v.
Hernandez-Avalos, 

 (5th Cir.) (quoting United States v.
Hinojosa-Lopez, 

 (5th Cir. 1997)), cert. denied, 

 (2001).
   The first requirement is consistent with our decision in Matter of Barrett,

 (BIA 1990), that a state drug offense may be considered an
aggravated felony so long as the state offense is one that would be punishable
under one of the three acts referenced in § 924(c)(2). Possession of
marijuana is an offense that is punishable under the Controlled Substances
Act. See 

(a) (2000).
   As to the second requirement identified above, i.e., whether the offense is
a felony, the Fifth Circuit has stated that “a state drug offense is properly
deemed a ‘felony’ within the meaning of 

(c)(2) . . . if the
offense is classified as a felony under the law of the relevant state.” United
States v. 

 (emphasis added) (citing United

                                         420
Cite as 

 (BIA 2002)                                      Interim Decision #3474



States v. Restrepo-Aguilar, 

 (1st Cir. 1996)). In reaching the
same conclusion, the court in Hernandez-Avalos relied on the reasoning set
forth in the First Circuit’s decision in United States v. Restrepo-Aguilar,
supra, as well as the Eighth Circuit’s decision in United States v. Briones-Mata, 

 (8th Cir. 1997). See United States v. 

.
   In United States v. Restrepo-Aguilar, supra, at 364-65, the First Circuit
found that the term “felony” in § 924(c)(2) should be interpreted by reference
to the definition of a “felony” in 

(13) (1994) (Controlled
Substances Act). See also United States v. Ibarra-Galindo, 

 (9th Cir. 2000), cert denied, 

 (2001); United States v.
Pornes-Garcia, 

 (2d Cir. 1999); United States v. Simon,

 (11th Cir. 1999); United States v. 

; United States v. Cabrera-Sosa, 

 (10th Cir. 1996).
According to § 802(13), “[t]he term ‘felony’ means any Federal or State
offense classified by applicable Federal or State law as a felony.” 

(13) (emphasis added).
    In Restrepo-Aguilar, the court noted that under the Controlled Substances
Act’s “unambiguous definition, a state offense . . . which is classified as a
felony under the law of the convicting state would clearly qualify as a felony
for that definition’s purposes, even if the offense could be punished only as
a misdemeanor under federal law.” United States v. Restrepo-Aguilar, supra,
at 364-65 (emphasis added). 1 The Eighth Circuit also concluded, in accord
with the First Circuit, that the relevant measure of a state drug offense is
whether “‘the offense is classified as a felony under the law of the relevant
state.’” United States v. 

 (emphasis added)
(quoting United States v. Restrepo-Aguilar, supra, at 365).
   Given the Fifth Circuit’s reliance on the reasoning in Restrepo-Aguilar and
Briones-Mata, we find it appropriate in this case to refer to the definition of
a felony in 

(13) in determining whether the respondent’s
convictions are for felonies under § 924(c). We find that the reference to
“applicable” law in § 802(13) means the law of the prosecuting jurisdiction.
Therefore, whether the respondent’s criminal convictions are for felonies
depends on the classification of those offenses under the law of the convicting
jurisdiction. United States v. 

. In this case,
the prosecuting authority, the State of Texas, in both instances charged the
respondent with misdemeanor offenses.
   Because the State of Texas classified the respondent’s offenses as
misdemeanors, neither of his crimes is a “felony” offense under § 924(c)(2)
1
   The First Circuit explicitly rejected a reading of § 924(c)(2) that would define a drug
trafficking crime as “any offense punishable as a felony under the CSA,” stating that “that is
not how § 924(c)(2) is written . . . . [T]he definition requires only that the offense be a ‘felony
punishable’ thereunder.” United States v. Restrepo-Aguilar, supra, at 364.

                                               421
Cite as 

 (BIA 2002)                        Interim Decision #3474



so as to be considered a “drug trafficking crime.” Consequently, we find that
the respondent has not been convicted of an “aggravated felony” within the
meaning of section 101(a)(43)(B) of the Act, and he therefore is not
removable as charged under section 237(a)(2)(A)(iii) of the Act,

(a)(2)(A)(iii) (2000).
   Accordingly, the respondent’s appeal will be sustained. However, given
that the respondent remains removable as charged under section
237(a)(2)(B)(i) of the Act, as an alien convicted of a controlled substance
violation, we will remand the record to the Immigration Court for further
consideration of the respondent’s eligibility for relief from removal.
   ORDER: The appeal is sustained.
   FURTHER ORDER: The record is remanded to the Immigration Court
for further proceedings consistent with the foregoing opinion, and for the entry
of a new decision.




                                      422