Criminal facilitation is not an "aggravated felony" as illicit trafficking

In an unpublished decision, the BIA held that a conviction for criminal facilitation in New York does not constitute an illicit trafficking type of aggravated felony. Taylor, A xx-xxx-801, slip op. (BIA Nov. 5, 2009)

Deportation for Drug Crimes

The Supreme Court ruled, by an 8-1 vote, that conviction of a drug crime that is a felony under state law but only a misdemeanor under federal law is not kind the kind of offense that triggers potential deporation. Justice David H. Souter wrote the opinion for the Court in Lopez v. Gonzales (05-547). Justice Clarence Thomas dissented.

The ruling cleared up a conflict among federal appeals courts. Four had ruled that a felony under state law that is only a misdemeanor under federal law is not a drug trafficking crime under the Controlled Substances Act. Two others had disagreed. Federal immigration law provides for deportation for anyone convicted of a crime that is a "felony punishable under the Controlled Substances Act." The Court ruled that "a state offense comes within [that phrase] only if it proscribes conduct punishable as a felony under" the Controlled Substances Act.

The decision came in the case of Jose Antonio Lopez, a native of Mexico. He entereed the U.S. illegally in 1985 or 1986, but became a lawful permanent resident in 1990. In 1997, he was charged in state court in South Dakota with one count of possessing cocaine and one count of a conspiracy to distribute the drug. He ultimately pleaded guilty to aiding and abetting possession by another person.

Under state law, his crime was a felony, leading to a potential prison sentence of up to five years. He was sentenced to the maximum, but actually served only 15 months. Federal officials moved to deport him to Mexico, based upon the conviction for what they considered to be an "aggravated felony." Under federal law, however, the crime could only be punished as a misdemeanor.

A conviction for an aggravated felony under immigration law can lead to deportation, or may bar other relief, such as cancellation of a deportation order.

Justice Souter's opinion said that under federal law, mere possession is not a form of "illicit trafficking" in drugs, because that "connotes some sort of commercial dealing."

The Court had granted review of two cases on the issue, and consolidated them. In a one-sentence order, the Court on Monday dismissed the second case, Toledo-Flores v. U.S. (05-7664).

Majority opinion

Dissent

On December 13, 2007, the Board of Immigration Appeals (BIA) issued two precedent decisions that together mean that, in cases arising outside the Second, Fifth and Seventh Circuits, a non-citizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. See Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007) (hereinafter Carachuri) and Matter of Thomas, 24 I&N Dec. 416 (BIA 2007) (hereinafter Thomas). The BIA left open the question of when a noncitizen who was convicted by the state as a recidivist could be deemed convicted of an aggravated felony.

In cases arising in the Fifth Circuit, as well as the Second and Seventh Circuits, the BIA indicated that it was constrained by circuit precedent to find that a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. See Carachuri, 24 I&N Dec. at 385-88, 392-93. The precedents from these circuits cited by the BIA do not preclude a finding that a second or subsequent state possession offense is not an aggravated felony.

Matter of CARACHURI-ROSENDO, 24 I&N Dec. 382 (BIA 2007) (ID 3592)

(1) Decisional authority from the Supreme Court and the controlling Federal circuit court of appeals is determinative of whether a State drug offense constitutes an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), by virtue of its correspondence to the Federal felony offense of “recidivist possession,” as defined by 21 U.S.C. § 844(a) (2000). Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.

(2) Controlling precedent of the United States Court of Appeals for the Fifth Circuit dictates that the respondent’s Texas conviction for alprazolam possession qualifies as an “aggravated felony” conviction by virtue of the fact that the underlying alprazolam possession offense was committed after the respondent’s prior State “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a).

(3) Absent controlling authority regarding the “recidivist possession” issue, an alien’s State conviction for simple possession of a controlled substance will not be considered an aggravated felony conviction on the basis of recidivism unless the alien’s status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense.

Matter of THOMAS, 24 I&N Dec. 416 (BIA 2007) (ID 3593)

The respondent’s 2003 Florida offense involving the simple possession of marijuana does not qualify as an “aggravated felony” by virtue of its correspondence to the Federal felony of “recidivist possession,” even though it was committed after a prior “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a) (2000), because the respondent’s conviction for that 2003 offense did not arise from a State proceeding in which his status as a recidivist drug offender was either admitted or determined by a judge or jury. Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), followed.

Matter of Yanez, 23 I&N 390 (BIA 2002), ID#3473

The determination whether a state drug offense constitutes a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) (2000), such that it may be considered an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), shall be made by reference to decisional authority from the federal circuit courts of appeals, and not by reference to any separate legal standard adopted by the Board of Immigration Appeals. Matter of K-V-D-, Interim Decision 3422 (BIA 1999), overruled. Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), and Matter of Davis, 20 I&N Dec. 536 (BIA 1992), modified.


Lopez v. Gonzales, 127 S. Ct. 625, 166 L. Ed. 2d 462 (2006), holds that classification of an offense for the purpose of § 1101(a)(43) depends on how the accused's conduct would be treated under federal law. If the conduct of which the defendant has been convicted would be a felony under federal law, then it comes within § 1101(a)(43) if it meets that statute's requirements concerning the subject-matter of the crimes and the length of the sentence. In deciding whether given conduct would be a drug felony under federal law, it is not possible to limit attention to the elements of the offense under state law; the point of Lopez is that, when state and federal crimes are differently defined, the federal court must determine whether the conduct is a federal felony, not which statute the state cited in the indictment.
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Gonzales-Gomez v. Achim (March 22, 2006), 390 U.S. Supreme Court Transcript, Lopez v. Gonzalez

The 7th Circuit rejected Yanez(March 22, 2006), 390

Issue: whether a state-law felony that would be punishable only as a misdemeanor by federal law is nevertheless an “aggravated felony” ?

Posner: "The “yes” answer, here urged by the government, is a strained reading of the statutory language, is inconsistent with the government’s general position regarding the definition of “aggravated felony,” is inconsistent with the interest in uniform standards for removal, and is inconsistent with the legislative history. The only consistency that we can see in the government’s treatment of the meaning of “aggravated felony” is that the alien always loses.

Allowing cancellation of removal to depend on how severely a particular state punishes drug crimes would have the paradoxical result of allowing states, in effect, to impose banishment from the United States as a sanction for a violation of state law. For then if a state made the possession of one marijuana cigarette a felony, which it is perfectly entitled to do, it would be in effect annexing banishment from the United States to the criminal sanction. States do not have the power to banish people from the United States."

Posner applied the April 2005 district court ruling, 372 F. Supp. 2d 1062; 2005, that the Hypothetical Federal Felony approach applied; a state drug conviction was an aggravated felony only if the elements of the crime would constitute a felony under federal drug laws. "Aggravated felony," as defined under 8 U.S.C.S. ß 1101(a)(43)(B) of the INA, included a "drug trafficking crime" as defined in 18 U.S.C.S. ß 924(c), which in turn was defined as any felony punishable under the Controlled Substances Act (CSA), 21 U.S.C.S. ß 801 et seq. The CSA generally punished first-time simple possession as a misdemeanor. The legislative history of 18 U.S.C.S. ß 924(c) and the INA did not indicate that Congress intended for minor drug possession convictions to be aggravated felonies. Also, the uniformity requirement under U.S. Const. art. I, ß 8, cl. 4 weighed against reliance on varying state laws.