Cite as
23 I&N Dec. 515 (BIA 2002) Interim Decision #3482
In re Nabil Ahmed ELGENDI, Respondent
File A24 998 596 - New York
Decided October 31, 2002
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In accordance with authoritative precedent of the United States Court of Appeals for the
Second Circuit in United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), and United
States v. Polanco,
29 F.3d 35 (2d Cir. 1994), an individual who has been convicted twice of
misdemeanor possession of marijuana in violation of New York State law has not been
convicted of an aggravated felony under section 101(a)(43)(B) of the Immigration and
Nationality Act,
8 U.S.C. § 1101(a)(43)(B) (2000).
FOR RESPONDENT: Steven Morley, Esquire, Philadelphia, Pennsylvania
BEFORE: Board En Banc: SCIALABBA, Chairman; DUNNE, Vice Chairman; SCHMIDT,
HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE,
GUENDELSBERGER, GRANT, MOSCATO, MILLER, BRENNAN, OSUNA,
OHLSON, HESS, and PAULEY, Board Members. Concurring Opinion:
ESPENOZA, Board Member.
HESS, Board Member:
In a decision dated November 30, 2001, an Immigration Judge found the
respondent removable as an alien convicted of an aggravated felony on the
basis of his two state convictions for marijuana possession. 1 Therefore, the
Immigration Judge denied the respondent’s application for cancellation of
removal pursuant to section 240A(a)(3) of the Immigration and Nationality
Act, 8 U.S.C. § 1229b(a)(3) (2000). The respondent has appealed from that
decision, arguing that the Immigration Judge erred as a matter of law in
finding that he had been convicted of an aggravated felony. The appeal will
be sustained, and the record will be remanded to the Immigration Judge for
further proceedings.
1
The Immigration and Naturalization Service also charged that the respondent was removable
as an alien convicted of an aggravated felony on the basis of his conviction for attempted
robbery in the second degree under New York law. The Immigration Judge concluded that
this offense did not constitute an aggravated felony. The Service has not appealed from his
conclusion, so we need not address that issue.
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I. FACTUAL HISTORY
The respondent is a native and citizen of Egypt and a lawful permanent
resident of the United States. He has two convictions in the Criminal Court
of New York County, New York, for the offense of criminal possession of
marijuana in the fifth degree, a violation of section 221.10 of the New York
Penal Law: (1) on August 10, 2000, for which he was sentenced to time
served and a 6-month suspension of his driver’s license; and (2) on
November 11, 2000, for which he received a conditional discharge, as well
as a sentence of 5 days of community service and a further 6-month
suspension of his driver’s license. His offenses are classified as class B
misdemeanors under New York law, and they are therefore punishable by a
maximum term of imprisonment of 3 months. N.Y. Penal Law § 70.15
(McKinney 2000).
II. ISSUE ON APPEAL
The issue in this case is whether the respondent’s offenses of simple
possession of marijuana, which are classified as misdemeanors under
applicable state law, constitute “drug trafficking crimes” within the meaning
of 18 U.S.C. § 924(c)(2) (2000), such that they may be considered aggravated
felonies under section 101(a)(43)(B) of the Act,
8 U.S.C. § 1101(a)(43)(B)
(2000). 2 Disposition of this issue is guided by our recent precedent decision
in Matter of Yanez,
23 I&N Dec. 390 (BIA 2002), where we held that the
determination whether state drug offenses constitute “drug trafficking crimes”
must be made by reference to pertinent authority from the relevant circuit
court of appeals. See also Matter of Santos-Lopez,
23 I&N Dec. 419 (BIA
2002) (following Matter of Yanez and applying precedent of the United States
Court of Appeals for the Fifth Circuit to determine that an alien’s
misdemeanor marijuana possession offenses under Texas law did not
2
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 the aggravated felony definition at section 101(a)(43)(B), 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.).
18 U.S.C. § 924(c)(2).
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constitute “drug trafficking crimes”). Accordingly, we turn to an examination
of the pertinent law of the Second Circuit, in whose jurisdiction this case
arises.
III. RELEVANT CASE LAW
The Second Circuit has adopted a “context-sensitive” or “bifurcated”
approach to interpretation of 18 U.S.C. § 924(c)(2). United States v. Pornes-Garcia,
171 F.3d 142, 147 (2d Cir. 1999). In criminal cases involving aliens
charged with illegal reentry to the United States after being deported
subsequent to an aggravated felony conviction, the Second Circuit has held
that a state drug offense qualifies as a “drug trafficking crime” if the
convicting jurisdiction classifies the offense as a felony.
Id. (holding that an
alien convicted of attempted criminal possession of cocaine in the first
degree, a class A-1 felony under applicable New York law, was convicted of
a drug trafficking crime under
18 U.S.C. § 924(c)(2)); United States v.
Polanco,
29 F.3d 35 (2d Cir. 1994) (stating that an alien convicted of criminal
sale of a controlled substance, a class C felony under applicable New York
law, was convicted of a drug trafficking crime under
18 U.S.C. § 924(c)(2)).
These decisions are consistent with the weight of authority from other circuits
that have interpreted
18 U.S.C. § 924(c)(2). See United States v. Hernandez-Avalos,
251 F.3d 505 (5th Cir.), cert. denied,
122 S. Ct. 305 (2001); United
States v. Simon,
168 F.3d 1271 (11th Cir. 1999); United States v. Briones-Mata,
116 F.3d 308 (8th Cir. 1997); United States v. Cabrera-Sosa,
81 F.3d
998 (10th Cir. 1996); United States v. Restrepo-Aguilar,
74 F.3d 361 (1st
Cir. 1996); cf. also United States v. Arellano-Torres,
303 F.3d 1173 (9th Cir.
2002) (holding that a state conviction for possession of a controlled substance
that is punishable under state law by a term of imprisonment of more than
1 year qualifies as a conviction for a drug trafficking crime).
In cases arising in the civil immigration context, by contrast, the Second
Circuit has acquiesced in the interpretation of
18 U.S.C. § 924(c)(2)
previously advanced by this Board in Matter of L-G-,
21 I&N Dec. 89 (BIA
1995), where we held that state drug offenses may be considered “drug
trafficking crimes,” and therefore aggravated felonies, only if they are
“analogous” to offenses punishable as felonies under the three federal drug
laws referenced in
18 U.S.C. § 924(c)(2). Aguirre v. INS,
79 F.3d 315 (2d
Cir. 1996); see also Gerbier v. Holmes,
280 F.3d 297 (3d Cir. 2002). 3 As
3
The respondent’s second marijuana possession offense is arguably analogous to an offense
punishable as a felony under the federal Controlled Substances Act at
21 U.S.C. § 844(a)(1)
(2000) and might therefore qualify as an aggravated felony under the interpretive approach
(continued...)
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the Second Circuit emphasized in Aguirre and subsequent cases, however, its
decision to acquiesce in Matter of L-G- was motivated by neither
administrative deference nor agreement with the analytical underpinnings of
the Board’s interpretation of
18 U.S.C. § 924(c)(2), but rather by prudential
concerns for “nationwide uniformity” in the application of the federal
immigration laws and for safeguarding this country’s commitment to providing
asylum. Sutherland v. Reno,
228 F.3d 171, 174 (2d Cir. 2000); United
States v.
Pornes-Garcia, supra, at 146-47; Aguirre v. INS, supra, at 317.
This Board, motivated by the same desire for uniformity that animated the
Second Circuit in Aguirre, previously endorsed the “bifurcated” approach to
interpretation of
18 U.S.C. § 924(c)(2). See Matter of K-V-D-,
22 I&N Dec.
1163 (BIA 1999) (holding that where a circuit court of appeals has interpreted
the definition of an “aggravated felony” under section 101(a)(43)(B) in the
criminal context only, the Board has the authority to interpret the phrase
differently in the immigration context, even in that same circuit). However,
in Matter of Yanez, supra, we acknowledged our obligation to withdraw from
that approach in light of emergent case law from other circuits holding, or
strongly suggesting, that the meaning of
18 U.S.C. § 924(c)(2) must be
identical in civil immigration cases and criminal cases. See United States v.
Hernandez-Avalos, supra, at 509-10 (stating in the Fifth Circuit that “[w]e
fail to see the validity of interpreting [section 924(c)(2)] differently based on
this distinction between sentencing and immigration cases; it is, after all, the
same words of the same phrase from the same statute that is being interpreted
in each instance”); United States v. Ibarra-Galindo,
206 F.3d 1337, 1340 n.2
(9th Cir. 2000) (stating in the Ninth Circuit that “we have never even
suggested that we would interpret
18 U.S.C. § 924(c)(2) differently in
applying the Immigration and Nationality Act than we now interpret it in
applying the Sentencing Guidelines”), cert. denied,
531 U.S. 1102 (2001);
Ruiz-Romero v. Reno,
205 F.3d 837, 839-40 (5th Cir. 2000).
3
(...continued)
adopted in Matter of L-G-, supra, and acquiesced in by Aguirre v. INS, supra. But cf. Steele
v. Blackman, 236 F.3d 130 (3d Cir. 2001). Under
21 U.S.C. § 844(a)(1), an individual who
commits a drug possession offense after a prior drug possession conviction has become final
may be sentenced to a term of imprisonment of up to 2 years. Because this offense carries
a maximum term of imprisonment of more than 1 year, it qualifies as a “felony” under
18 U.S.C. § 3559(a)(5) and as a “felony drug offense” under
21 U.S.C. § 802(44). In the
instant case, the respondent’s first marijuana possession conviction occurred on August 10,
2000, and became “final” on September 10, 2000, upon expiration of the statutory 30-day
appeal period established under New York law.
N.Y. Crim. Proc. Law § 460.10 (McKinney
2000). The respondent’s second marijuana possession offense was committed on
November 10, 2000, approximately 2 months after his prior marijuana possession conviction
became “final.”
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Thus, although uniformity in the application of the federal immigration laws
remains a salutary goal, divisions among the circuits—regarding both the
proper interpretation of
18 U.S.C. § 924(c)(2) and the permissibility of the
“bifurcated” approach—have made such uniformity unattainable at the
administrative level. As Matter of Yanez, supra, makes clear, short of
congressional action or a ruling from the Supreme Court, whatever degree of
uniformity that can be achieved in this context must hereafter be provided by
the circuits themselves. Hence, in accordance with the principle of deference
to circuit authority embraced by Matter of Yanez, our present goal is to
determine which of the alternative interpretations of
18 U.S.C. § 924(c)(2) is
deemed correct by the Second Circuit as a pure matter of statutory
construction.
IV. ANALYSIS
After thoroughly reviewing the relevant case law, we are persuaded that the
interpretation of 18 U.S.C. § 924(c)(2) adopted and applied in Pornes-Garcia
and Polanco is the favored construction in the Second Circuit. The fact that
the Second Circuit adopted this interpretation in its first reported case on the
question—Polanco—suggests to us that the interpretation was consistent with
the Second Circuit’s intuitive reading of the statute, divorced from the
uniformity considerations that would later prompt it to acquiesce in Matter
of L-G- in the civil immigration context. We also find it significant that the
Second Circuit has chosen to retain its original interpretation, even after
Aguirre demonstrated that an alternative interpretation was available. See
United States v.
Pornes-Garcia, supra. Further, as previously noted, the
Second Circuit’s approach in Polanco and Pornes-Garcia has since been
adopted as a matter of statutory construction by virtually every other federal
circuit court that has had occasion to interpret
18 U.S.C. § 924(c)(2). Yet the
contrary interpretation, previously embraced by this Board and acquiesced in
by Aguirre in the interest of uniformity, has never been explicitly ratified by
the Second Circuit as a correct reading of
18 U.S.C. § 924(c)(2). See
Aguirre v. INS, supra, at 317 (stating only that “[t]he statutory point
[regarding the proper interpretation of
18 U.S.C. § 924(c)(2)] is fairly
debatable”). Accordingly, we will apply the interpretation of
18 U.S.C.
§ 924(c)(2) adopted in Pornes-Garcia and Polanco in the present case and
in future cases arising within the Second Circuit.
The Second Circuit has held that an offense is a “drug trafficking crime”
under
18 U.S.C. § 924(c)(2) if it is (1) punishable under the Controlled
Substances Act and (2) a felony. United States v.
Pornes-Garcia, supra, at
146; United States v.
Polanco, supra, at 38. The first requirement is
consistent with our decision in Matter of Barrett,
20 I&N Dec. 171 (BIA
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1990), where we held that a state drug offense may be considered an
aggravated felony only if it is analogous to an offense, such as possession of
a controlled substance, that would be punishable under one of the three
federal drug laws referenced in
18 U.S.C. § 924(c)(2). Marijuana is a
controlled substance under
21 U.S.C. § 812(c), sch. I(c)(10) (2000), and
possession of a controlled substance violates
21 U.S.C. § 844(a). Hence, the
respondent’s offenses plainly satisfy the test in Matter of Barrett.
The issue in this case turns on the second requirement identified above,
i.e., whether the state offense is a “felony.” Like most of its sister circuits,
the Second Circuit holds that the term “felony” in
18 U.S.C. § 924(c)(2)
should be interpreted by reference to the definition of a “felony” set forth in
the Controlled Substances Act at
21 U.S.C. § 802(13) (2000). United States
v.
Pornes-Garcia, supra, at 145. Section 802(13) provides that “[t]he term
‘felony’ means any Federal or State offense classified by applicable Federal
or State law as a felony.” We understand the Second Circuit to look to the
law of the convicting jurisdiction as the “applicable” law. Cf. Matter of
Santos-Lopez, supra.
Because the respondent’s offenses were prosecuted as misdemeanors in the
convicting jurisdiction and were punishable under applicable state law by a
term of imprisonment of no more than 3 months, neither of those offenses is
a “felony” under the “applicable” law within the meaning of
21 U.S.C.
§ 802(13). Therefore, neither constitutes a “drug trafficking crime” under
18 U.S.C. § 924(c)(2). Consequently, the respondent has not been convicted
of an “aggravated felony” within the meaning of section 101(a)(43)(B) of the
Act and is not statutorily ineligible for cancellation of removal under section
240A(a)(3) of the Act. Accordingly, the respondent’s appeal will be
sustained, and the record will be remanded to the Immigration Judge to
determine whether the respondent is otherwise eligible for cancellation of
removal and whether he merits such relief in the exercise of discretion.
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.
CONCURRING OPINION: Cecelia M. Espenoza, Board Member
I respectfully concur.
I write separately to indicate that I agree with the result, insofar as both the
offenses in this case are state misdemeanors, which do not constitute “drug
trafficking crimes” within the meaning of
18 U.S.C. § 924(c)(2) (2000). Cf.
Matter of Yanez,
23 I&N Dec. 390 (BIA 2002) (finding two state felony
possession offenses to be aggravated felonies). However, this case is
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governed by our finding in Matter of Santos-Lopez,
23 I&N Dec. 419 (BIA
2002), and, accordingly, a state misdemeanor possession offense is not an
aggravated felony as defined under
18 U.S.C. § 924(c)(2).
Therefore, as a state misdemeanor is not a felony, I concur.
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