Jenkins v. I.N.S.

• Decision Date: 12 July 1994
• Docket Number: Docket No. 94-4075
• Citation: 32 F.3d 11
• Parties: Harry P. JENKINS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 11

32 F.3d 11

Harry P. JENKINS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Docket No. 94-4075.

United States Court of Appeals, Second Circuit.

Argued June 7, 1994.

Decided July 12, 1994.

Barbara M. Sims, Buffalo, NY, for petitioner.

Diogenes P. Kekatos, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., S.D.N.Y., Steven M. Haber, Asst. U.S. Atty., of counsel), for respondent.

Before: WINTER and WALKER, Circuit Judges, and POLLACK, District Judge. ^*

WALKER, Circuit Judge:

Petitioner Harry P. Jenkins moves for acknowledgment of an automatic stay of deportation pending a decision on his petition for review of a deportation order of the Immigration and Naturalization Service ("INS") or, in the alternative, for a discretionary stay. At issue on this motion is whether Jenkins's state conviction of a crime that is a felony under state law but a misdemeanor under federal law qualifies as a conviction of an "aggravated felony" under Sec. 106(a)(3) of the Immigration and Nationality Act of 1952 (the "Act"), 8 U.S.C. Sec. 1105a(a)(3), thereby rendering Jenkins ineligible for an automatic stay. We hold that it does and accordingly rule that Jenkins is precluded from obtaining an automatic stay of deportation pending our decision on his review petition. In addition, we deny his alternative motion for a discretionary stay.

BACKGROUND

Jenkins is a native and citizen of Jamaica who first entered the United States in 1982 and, after a two-week absence, reentered the country in October 1987 without a valid entry document. In January 1989, Jenkins received temporary resident status. On October 2, 1990, Jenkins was convicted, upon a plea of guilty in New York state court, of attempted criminal possession of a controlled substance in the third degree, in violation of Secs. 110.00 and 220.16 of the New York Penal Law. A lab report prepared in connection with the prosecution indicates that Jenkins had in his possession a total of 20 grams of powder cocaine.

As a result of this conviction, the INS terminated Jenkins's temporary resident status and instituted deportation proceedings against him. The INS charged Jenkins with deportability under three provisions of the Act: (1) Sec. 241(a)(1)(A), 8 U.S.C. Sec. 1251(a)(1)(A), as an immigrant not in possession of a valid entry document; (2) Sec. 241(a)(2)(B)(i), 8 U.S.C. Sec. 1251(a)(2)(B)(i), as an alien convicted of an offense involving a controlled substance; and (3) Sec. 241(a)(2)(A)(iii), 8 U.S.C. Sec. 1251(a)(2)(A)(iii), as an alien convicted of an aggravated felony. In the course of the deportation hearing, the INS withdrew the aggravated felony charge.

On August 3, 1993, an Immigration Judge ordered Jenkins deported and on April 5, 1994, the Board of Immigration Appeals ("BIA") upheld this decision and dismissed Jenkins's appeal. The BIA determined that Jenkins had admitted the facts making him deportable under Secs. 241(a)(1)(A) and 241(a)(2)(B)(i). The BIA further found that Jenkins was ineligible for a discretionary waiver of inadmissibility under Sec. 212(c) of the Act, 8 U.S.C. Sec. 1182(c), because he never entered the country as a lawful permanent resident, and that he was ineligible to adjust his status under Sec. 245(a) of the Act, 8 U.S.C. Sec. 1255, or to obtain a waiver of inadmissibility under Sec. 212(h) of the Act, 8 U.S.C. Sec. 1182(h), because of his conviction for a controlled substances offense.

Jenkins filed a petition for review of the BIA's decision and the current motion for a stay of deportation pending our decision on the merits of his petition. Jenkins contends that he is entitled to an automatic stay under Sec. 106(a)(3) of the Act because he was not convicted of an aggravated felony. In the alternative, he requests a discretionary stay pursuant to Sec. 106(a)(3) of the Act and Rule 18 of the Federal Rules of Appellate Procedure. At oral argument, we ordered a temporary stay pending our decision on this motion. In view of our conclusion that Jenkins is entitled to neither an automatic nor a discretionary stay, the temporary stay is now vacated.

DISCUSSION

Section 106(a)(3) of the Act provides in relevant part:

The service of the petition for review upon such official of the Service shall stay the deportation of the alien pending determination of the petition by the court, unless the court otherwise directs or unless the alien is convicted of an aggravated felony, in which case the Service shall not stay the deportation of the alien pending determination of the petition of the court unless the court otherwise directs.

8 U.S.C. Sec. 1105a(a)(3). The INS argues that Jenkins's state conviction constituted an aggravated felony and that he is therefore ineligible for an automatic stay. Jenkins contends that the INS is barred from raising this argument because it withdrew the charge that he was convicted of an aggravated felony in the course of his deportation proceedings. We reject this contention. Section 106(a)(3) does not require an administrative finding that an alien has been convicted of an aggravated felony. See Soto-Tapia v. INS, 8 F.3d 1, 3 (5th Cir.1993) (per curiam). The statute speaks only of the fact of a conviction. A court of appeals deciding a motion for a stay of deportation must therefore determine whether the petitioner has been convicted of an aggravated felony regardless of whether he was charged with such in his deportation proceedings. See, e.g., Bar-Levy v. United States Dep't of Justice, INS, 990 F.2d 33, 34 (2d Cir.1993) (noting that drug importation conviction was an aggravated felony, rendering alien ineligible for automatic stay, even though alien was not charged with deportability as an aggravated felon).

An "aggravated felony," as defined in Sec. 101(a)(43) of the Act, includes "any illicit trafficking in any controlled substance (as defined in section 802 of Title 21), including any drug trafficking crime as defined in section 924(c)(2) of Title 18" or "any attempt or conspiracy to commit any such act." 8 U.S.C. Sec. 1101(a)(43). Section 924(c)(2) of Title 18 in turn defines "drug trafficking crime" broadly to include "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.)." In order to meet the definition of an aggravated felony, an offense must therefore (a) qualify as a felony that is (b) punishable by one of the three referenced statutes. Here, it is clear that the conduct Jenkins pleaded guilty to in state court would be punishable under 21 U.S.C. Sec. 846 as an attempt to commit a violation of 21 U.S.C. Sec. 844(a), a section of the Controlled Substances Act that prescribes federal penalties for persons who knowingly or intentionally possess a controlled substance. One of the two prerequisites to finding that Jenkins was convicted of an aggravated felony is therefore satisfied.

Our analysis consequently turns on whether Jenkins's offense qualifies as a "felony." A "felony" is defined in the Controlled Substances Act as "any Federal or State offense classified by applicable Federal or State Law as a felony." 21 U.S.C. Sec. 802(13). This definition also applies to the Controlled Substances Import and Export Act, see 21 U.S.C. Sec. 951(b), and the Maritime Drug Law Enforcement Act, see 46 U.S.C.App. Sec. 1903(i). Under both federal and New York law, a felony is an offense that may be punished by a term of imprisonment that exceeds one year. See 18 U.S.C. Sec. 3559(a); N.Y.Penal Law Sec. 10.00(5). In this case, Jenkins's attempted possession of 20 grams of cocaine is a felony under the New York Penal Law that may be punished by a term of imprisonment of one to fifteen years, see N.Y.Penal Law Secs. 110.05(4), 220.16 (punishing attempted criminal possession of controlled substance in the third degree as a class C felony); N.Y.Penal Law Sec. 70.00 (fixing term of imprisonment for class C felony), but a misdemeanor under the Federal Controlled Substances Act that may be punished by not more than one year of imprisonment, see 21 U.S.C. Secs. 844(a), 846.

The INS argues that while Jenkins's conviction is punishable under federal law as a misdemeanor, its classification as a felony under New York law qualifies it as a felony for the purposes of the Controlled Substances Act, 21 U.S.C. Sec. 802(13). The INS relies primarily on United States v. Forbes, 16 F.3d 1294 (1st Cir.1994), and Amaral v. INS, 977 F.2d 33 (1st Cir.1992) which state, in nearly identical footnotes, that a conviction that is classified as a felony under state law is considered a felony under the Controlled Substances Act. See Forbes, 16 F.3d at 1301 n. 10; Amaral, 977 F.2d at 36 n. 3. We agree.

The plain language of 21 U.S.C. Sec. 802(13) states unequivocally that an offense meets the definition of a felony if "applicable Federal or State Law" classifies it as a felony. In this case, the "applicable" law--in the sense that it was the law actually applied to Jenkins--is the law of New York, which classifies his offense as a felony. Section 802(13)'s explicit reliance on state classifications represents a Congressional choice to include within the category of "felony" offenses under the Controlled Substances Act, the Controlled Substances Import and Export Act, and the Maritime Drug Law Enforcement Act, those crimes deemed serious enough by states to warrant felony treatment within their jurisdictions. We are bound by the unambiguous language of the statute. Accordingly, we conclude that because New York explicitly categorizes Jenkins's offense as a felony by authorizing a prison term of more than one year, and because the Controlled Substances Act incorporates the New York classification of a felony, Jenkins's offense constitutes a felony for purposes of determining whether he has been convicted of an aggravated felony. With this issue...