The Board of Immigration Appeals (BIA or Board) in Matter of Cuellar-Gomez, 25 I. & N. Dec. 850 (B.I.A. July 18, 2012), held that (1) a formal judgment of guilt of an alien entered by a municipal court is a “conviction” under INA § 101(a)(48)(A) [8 USCA § 1101(a)(48)(A)] (2006) if the proceedings in which the judgment was entered were genuine criminal proceedings, (2) a Wichita, Kansas, municipal ordinance which recapitulates a Kansas statute prohibiting marijuana possession is a “law or regulation of a State … relating to a controlled substance” under INA § 237(a)(2)(B)(i) [8 USCA § 1227(a)(2)(B)(i)](2006), and (3) possession of marijuana after a prior municipal ordinance conviction for marijuana possession in violation of former §§ 65-4162(a) and (b) of the Kansas Statutes Annotated is an aggravated felony under INA § 101(a)(43)(B) [8 USCA § 1101(a)(43)(B)] by virtue of its correspondence to the federal felony of “recidivist possession,” 21 USCA § 844 (2006), provided that the prior conviction was final when the second offense was committed. Accordingly, the Board dismissed the respondent’s appeal from an immigration judge’s (IJ’s) decision ordering him removed from the U.S. as an alien convicted of an aggravated felony and a controlled substance violation under INA §§ 237(a)(2)(A)(iii) and (B)(i) , respectively.
The respondent, a native and citizen of El Salvador, was admitted to the U.S. on April 4, 1992, as a lawful permanent resident. On January 3, 2008, a municipal court in Wichita, Kansas, found him guilty of possessing marijuana in violation of § 5.26.010 of the Wichita, Kansas, Code of Ordinances, a misdemeanor for which he was sentenced to 60 days in jail and ordered to pay a $100 fine. On September 29, 2008, a Kansas district court found the respondent guilty of possessing marijuana after a prior municipal ordinance conviction for marijuana possession, a felony violation under Kan. Stat. Ann. § 65-4162(a) and (b), for which he was sentenced to a 10-month term of imprisonment plus probation on December 4, 2008.
Based on these convictions, the Department of Homeland Security (DHS) initiated removal proceedings, charging the respondent with deportability under INA § 237(a)(2)(A)(iii) as an alien convicted of an “aggravated felony” and § 237(a)(2)(B)(i) as an alien convicted of *1442 a “violation of … any law or regulation of a State … relating to a controlled substance…, other than a single offense involving possession for one’s own use of thirty grams or less of marijuana.” Specifically, DHS alleged that the respondent’s conviction under Kan. Stat. Ann. § 65-4162(a) and (b) was for a “drug trafficking crime” under 18 USCA § 924(c) (2006) and, by extension, an aggravated felony under INA § 101(a)(43)(B) because it corresponds to “recidivist possession,” a felony punishable under the Federal Controlled Substances Act (CSA), 21 USCA § 844(a) (2006). DHS also maintained that each of the respondent’s convictions was for a violation of the law of a state relating to a controlled substance under INA § 237(a)(2)(B)(i) and that the existence of two such convictions precluded the respondent from qualifying for the exception to deportability available to aliens convicted of a “single offense” involving simple possession of 30 grams or less of marijuana. The IJ sustained both charges of removal and ordered the respondent removed.
On appeal, the respondent contended that the January 2008 judgment arising from his Wichita municipal court proceedings is not a valid predicate for either charge of removability and that his September 2008 conviction under Kan. Stat. Ann. § 65-4162(a) and (b) is insufficient, standing alone, to establish his removability. The respondent argued that the Wichita judgment is not a “conviction” within the meaning of INA § 101(a)(48)(A) or, alternatively, that, even if the Wichita judgment is a “conviction” for immigration purposes, it does not support the § 237(a)(2)(B)(i) charge because it was for violation of a municipal ordinance rather than “any law or regulation of a State.” Finally, the respondent contended that his Wichita judgment does not support the aggravated felony charge because it is not a valid predicate for a recidivist enhancement under 21 USCA § 844(a).
The BIA, in an opinion written by Board Member Roger Pauley for the panel, which included Board Members Garry D. Malphrus and Hugh Mullane, rejected each of the respondent’s contentions. First, the Board concluded that the judgment of guilty entered against the respondent in January 2008 by the municipal court is a “conviction” under the plain language of INA § 101(a)(48)(A) because it is “a formal judgment of guilt of the alien entered by a court.” In so holding, the Board rejected the respondent’s argument that the municipal judgment should be discounted for immigration purposes because the proceedings in which it was entered did not afford him all the constitutional rights that defendants are entitled to in genuine criminal proceedings. The Board pointed out that, under its precedents, a formal judgment of guilt entered by a court qualifies as a conviction under § 101(a)(48)(A) so long as it was entered in a “genuine criminal proceeding,” which is a proceeding that was “criminal in nature under the governing laws of the prosecuting jurisdiction.” The Board pointed out that in Kansas (1) municipal judges have the authority to enter judgments of guilt in marijuana possession cases and to impose fines or order incarceration, (2) the issue before the court is whether the prosecution has proved the charge beyond a reasonable doubt, and (3) under Kansas’ sentencing laws, a judgment of guilt entered by a municipal court is considered a valid conviction for purposes of calculating the defendant’s criminal history, all of which, the Board said, makes evident that the respondent’s Wichita judgment was entered in a “genuine criminal proceeding.” The Board rejected the respondent’s contention that he was denied his constitutional rights, noting that, while the municipal code provides for the appointment of counsel at public expense only if the judge determines that the defendant stands in jeopardy of incarceration and is financially unable to obtain his or her own lawyer, which the respondent contended was more restrictive than in matters before the Kansas district courts, there is no absolute right to appointed counsel in misdemeanor prosecutions, whether in Kansas district courts, Wichita municipal courts, or elsewhere. Moreover, the Board pointed out that the Supreme Court has predicated the right to appointed counsel upon the defendant being unable to afford to hire his or her own counsel and upon the possibility of imprisonment if convicted.
Similarly, the Board rejected the respondent’s contention that his municipal court proceedings were not genuinely “criminal” because they did not afford him the right to a jury trial since Kansas, like many other states, first tries offenses such as the respondent’s before a municipal court judge and, if the judge finds the defendant guilty, affords the defendant the right to appeal to a state district court for a trial de novo before a jury. The Board pointed out that U.S. Supreme Court has held that a two-tier system virtually identical to that applied in Kansas did not violate the accused’s constitutional right to a jury trial and the U.S. Court of Appeals for the Tenth Circuit has also specifically upheld the Kansas two-tier procedure in the face of a constitutional challenge.
Finally, the Board rejected the respondent’s contention that his Wichita conviction was unconstitutional because neither his counsel nor the court advised him of the potential immigration consequences of a conviction. The Board pointed out that it is well settled that neither IJs nor the Board can entertain collateral attacks on state court judgments and advised the respondent that his recourse for such a challenge is to seek postconviction relief in the Kansas courts.
The Board then turned to the respondent’s second contention–that the Wichita judgment is not a “conviction” for immigration purposes–which the Board also rejected. The Board pointed out that, like other municipalities, Wichita is not an independent sovereign but, rather, a “subordinate governmental instrumentalit[y] created by the State to assist in the carrying out of state governmental functions,” quoting Reynolds v. Sims, 377 U.S. 533, 575 (1964), and citing City of Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424, 437 (2002), which recognized that “local governmental units are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion.” The Board concluded that the ambiguous reference in INA § 237(a)(2)(B)(i) to “any law or regulation of a State” most naturally encompasses laws promulgated by a state through its political subdivisions and that § 5.26.010 of the Wichita Code of Ordinances is thus “a law or regulation of a State” under § 237(a)(2)(B)(i) because it is an expression of the organic sovereign power of the State of Kansas.
The Board further rejected the respondent’s attempt to distinguish Wichita’s ordinances based on the “Home Rule” amendment to the Kansas Constitution, which the respondent contented made the Wichita ordinances independent from Kansas law and hence not laws of the State of Kansas. The Board acknowledged that the “Home Rule” Amendment empowers Kansas municipalities to enact ordinances that supplement or complement the criminal laws passed by the state legislature, but stressed that municipalities cannot pass ordinances that are preempted by uniformly applicable state criminal laws. Hence, the Board concluded that the municipal ordinances supplement or complement the laws passed by the state legislature and are still laws of the state because they are ultimately the expression of state sovereignty. Further, the Board said, in any event, the ordinance at issue merely recapitulates the generally applicable Kansas law relating to marijuana possession so there was no need for the Board to decide whether an alien could be rendered deportable under INA § 237(2)(2)(B)(i) on the basis of a municipal conviction for an offense with no analog in the state criminal code. The Board also rejected the respondent’s attempt to characterize Wichita’s ordinances as standing in the same relationship to Kansas law as Kansas statutes do to federal law, observing that, while the Home Rule Amendment gives municipalities substantial autonomy in regulating their own affairs, Wichita nevertheless remains a creature of Kansas law, exercising its authority through a delegation of state sovereignty, whereas Kansas stands on equal footing with the federal government and is sovereign with respect to all matters not explicitly reserved to the federal government by the Constitution.
Before turning to the respondent’s third and final argument–that his Wichita judgment does not support the aggravated felony charge because it is not a valid predicate for a recidivist enhancement under 21 USCA § 844(a)– the Board considered and rejected the respondent’s contention that interpreting the phrase “any law or regulation of a State” to include municipal ordinances would run afoul of the presumption that Congress acts deliberately when it includes particular language in one section of a statute but omits it in another section of the same act. The respondent based this argument upon the fact that two provisions in INA § 237(a) reference state and local laws disjunctively. The respondent contended that these specific references to local laws or ordinances give rise to the negative inference that Congress deliberately omitted such references from the language of § 237(a)(2)(B)(i). The Board rejected this suggestion because the provisions at issue here–§ 237(a)(2)(B)(i) on one hand and § 237(a)(2)(E)(i) and (6)(A) on the other– bear scant resemblance to one another as they pertain to entirely different subject matter areas and are grammatically and syntactically dissimilar. Hence the Board concluded that the language of § 237(a)(2)(E)(i) and (6)(A) is not a reliable index of the legislative intent underlying § 237(a)(2)(B)(i). In addition, the Board pointed out that the relevant language of § 237(a)(2)(B)(i) was codified 10 years before the enactment of §§ 237(a)(2)(E)(i) and (6)(A), and it is well settled that later-enacted laws do not declare the meaning of earlier law. Finally, the Board said, interpreting § 237(a)(2)(B)(i) to encompass municipal ordinances does not render the specific references to local laws or ordinances in §§ 237(a)(2)(E)(i) and (6)(A) superfluous since those provisions were enacted as part of the 1996 comprehensive amendments to the INA and there “is every reason to believe that the language of the [1996] amendments included specific references to local laws, not because Congress considered local laws to be distinct from State laws, but rather because Congress wished to remove all doubt as to the breadth of its intentions, thereby mitigating the risk that reviewing courts and administrative adjudicators would construe its language narrowly.”
Accordingly, the Board concluded that the respondent’s January 2008 Wichita conviction for marijuana possession renders him deportable as an alien convicted of a violation of any law or regulation of a state relating to a controlled substance and, because the respondent also sustained a second marijuana possession conviction in September 2008, he is not covered by the exception to deportability for an alien convicted of a “single offense involving possession for one’s own use of thirty grams or less of marijuana.”
Turning to the respondent’s final argument–that his Wichita conviction was not for an aggravated felony rendering him ineligible for cancellation of removal and most other forms of relief–the Board noted that INA § 101(a)(43)(B) defines the term “aggravated felony” to include “illicit trafficking in a controlled substance … including a drug trafficking crime (as defined in section 924(c) of title 18)” and that 18 USCA § 924(c)(2) in turn *1444 defines a “drug trafficking crime” to mean “any felony punishable under,” inter alia, “the Controlled Substances Act (21 U.S.C. 801 et seq.).” The Board also pointed out that the U.S. Supreme Court has held that a state drug offense qualifies as a “drug trafficking crime”–and, by extension, an aggravated felony–if its elements correspond to or include all the elements of an offense that carries a maximum term of imprisonment exceeding one year under the CSA and that recidivist simple possession offenses charged and prosecuted as such clearly fall within the definition of an aggravated felony. [FN8] Thus, the question before the Board was whether the respondent was convicted of a recidivist possession offense that was “charged and prosecuted as such.” The Board concluded that he was since (1) his September 2008 conviction under Kan. Stat. Ann. § 65-4162(a) and (b) resulted from proceedings in which he was charged and sentenced as a recidivist, (2) the judgment reflects that the respondent entered a plea of guilty and the court identified the offense of conviction as “Possession of Marijuana after Previous Conviction,” (3) for sentencing purposes, the court classified the crime as a severity level 4, nonperson felony, a denomination that was consistent only with a recidivism finding, and the elements of the respondent’s offense correspond to the elements of “recidivist possession” under the CSA, (5) the charge set forth in the complaint/information provided the respondent with the requisite notice that the state was seeking a recidivist enhancement against him and identified the prior conviction with particularity, and (6) Kansas drug defendants who dispute the existence or validity of prior convictions have a right to challenge the convictions and to require the government to prove those convictions to the sentencing judge.
The Board rejected the respondent’s argument that his Wichita conviction could not be a valid predicate for a recidivism charge under the CSA because 18 USCA § 844(a) requires that a prior conviction be for an offense “chargeable under the law of any State.” (Emphasis added by the Board.) The respondent again argued that his Wichita offense does not fit this description because it was prosecuted as a municipal ordinance violation rather than a violation of state law. The Board opined that the relevant inquiry was not whether the respondent was convicted under a particular state law but whether his offense of conviction was capable of being charged under such a law. The answer to that question, the Board said, was clearly “yes” as, under Kansas law, municipal and state courts have concurrent jurisdiction over offenses that violate both a city ordinance and a parallel state law, including misdemeanor marijuana possession offenses. Thus, even if it were to assume that a Wichita ordinance is not a “law of any State” within the meaning of the CSA, the respondent’s offense was nevertheless chargeable under such a law. Accordingly, the Board concluded that the respondent’s Wichita conviction is a valid predicate for a recidivist enhancement under 21 USCA § 844(a).
The Board also rejected the respondent’s argument that focusing on whether his offense could have been charged under state law is impermissible because it is a “hypothetical” inquiry of the sort proscribed by the Supreme Court in Carachuri-Rosendo v. Holder, 130 S. Ct. at 2586-89, pointing out that, in that case, the government treated Carachuri-Rosendo as if he had been “convicted” of all the elements of recidivist possession, even though recidivism had never been alleged or proven in his state trial, simply because a federal prosecutor could hypothetically have brought a recidivist possession charge against a person with his criminal history, whereas in the respondent’s case, he was treated as “convicted” of only those facts that were proven beyond a reasonable doubt (or admitted) in his Kansas criminal proceedings. Consequently, the Board said, the respondent was charged, convicted, and sentenced as a recidivist in Kansas, and whether his prior offense was “chargeable” under Kansas law is not a “hypothetical” or conjectural question but a factual and legal one, the answer to which is readily ascertained by reference to the state’s statutory and decisional law.
Having found that the respondent’s January 2008 Wichita conviction provided a valid factual basis for the removal charges leveled against him, rendering him removable as charged and ineligible for all requested relief, the Board dismissed his appeal.
