Cazarez-Gutierrez v. Ashcroft, 02-72978.

• Citation: 382 F.3d 905
• Decision Date: 24 August 2004
• Docket Number: No. 02-72978.,02-72978.
• Parties: Jesus Aaron CAZAREZ-GUTIERREZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

382 F.3d 905

Jesus Aaron CAZAREZ-GUTIERREZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-72978.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 10, 2003.

Filed August 24, 2004.

COPYRIGHT MATERIAL OMITTED

Jose A. Bracamonte, Law Office of Jose A. Bracamonte, Phoenix, AZ, for the petitioner-appellant.

Anthony Payne, U.S. Department of Justice, Civil Division, Washington, DC, for the respondent-appellee.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A90-495-553.

Before: HUG, B. FLETCHER, and TASHIMA, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

Jesus Aaron Cazarez-Gutierrez ("Cazarez-Gutierrez" or Petitioner) petitions for review of a decision of the Board of Immigration Appeals (BIA or "Board") finding him statutorily ineligible for cancellation of removal because he was convicted of the "aggravated felony" of a "drug trafficking crime." Cazarez-Gutierrez argues that his state felony conviction for possession of methamphetamine, which would be a misdemeanor if prosecuted under federal law, should not be classified as an aggravated felony for immigration purposes.

I. BACKGROUND

Cazarez-Gutierrez is a native and citizen of Mexico. He entered the United States without inspection in 1985, but became a lawful permanent resident of the United States in 1990. His wife and oldest child are lawful permanent residents of the United States, and his youngest three children are citizens of the United States. In January 1997, Cazarez-Gutierrez was convicted by the State of Arizona of possession of methamphetamine, a felony under Arizona law for which he served two-and-a-half years in prison. See Ariz.Rev.Stat. § 13-3407. Possession of methamphetamine is punishable under the federal Controlled Substances Act (CSA) with imprisonment of not more than one year, see 21 U.S.C. § 844(a), and thus is not a felony under federal law. See United States v. Arellano-Torres, 303 F.3d 1173, 1177-78 (9th Cir.2002).

In January 1999, an Immigration Judge (IJ) found Cazarez-Gutierrez removable because of his drug possession conviction, but exercised his discretion to grant Petitioner cancellation of removal under 8 U.S.C. § 1229b(a). The government appealed the IJ's decision, arguing that the IJ had abused his discretion in granting Cazarez-Gutierrez cancellation of removal. The BIA reversed, holding that Cazarez-Gutierrez is statutorily ineligible for cancellation of removal because his conviction for possession of methamphetamine is an "aggravated felony" within the meaning of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(43)(B), rendering him ineligible for cancellation of removal.¹ Petitioner timely filed a petition for review of the BIA's decision.

Originally, we granted the petition for review and remanded to the BIA to consider the government's argument that the IJ had abused his discretion by granting cancellation of removal. See Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir.2004), withdrawn 366 F.3d 736 (9th Cir.2004). However, our opinion did not fully "untie the various jurisdictional Gordian knots created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996" (IIRIRA). Baeta v. Sonchik, 273 F.3d 1261, 1263 (9th Cir.2001). It subsequently came to our attention that the IIRIRA divests us of power to review a removal order of an alien found removable for committing a controlled substance offense. We withdrew the opinion while we reexamined our jurisdiction over Cazarez-Gutierrez's petition for review.

We now consider the provisions governing our jurisdiction over this petition and conclude that Cazarez-Gutierrez's offense was not an aggravated felony. However, we are without power to review non-jurisdictional questions in this case or to grant relief because Cazarez-Gutierrez is removable for his controlled substances offense. In the interests of justice, we construe this petition for review as a petition for habeas corpus, and we transfer the petition to the district court.²

II. STANDARD OF REVIEW

The BIA's determination of purely legal questions is reviewed de novo. Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002); Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). Whether an offense is an aggravated felony under the INA is a legal question subject to de novo review. Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000). Likewise, we review de novo whether a conviction is a controlled substances offense that renders Cazarez-Gutierrez removable. Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1151 (9th Cir.2003).

III. DISCUSSION

We have jurisdiction under 8 U.S.C. § 1252 to review final removal orders issued by the BIA. However, IIRIRA divests us of jurisdiction to review an order of removal against an alien removable for having committed an aggravated felony or a violation of any law relating to a controlled substance. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), (B), 1252(a)(2)(C). Nonetheless, this Court retains jurisdiction to determine its jurisdiction, which includes determining whether a particular offense constitutes an offense governed by the jurisdiction-stripping provisions. See, e.g., Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1064-65 (9th Cir.2003). Although the BIA's decision addressed only the "aggravated felony" provisions of the INA, we must independently examine whether any other jurisdiction-stripping provision of IIRIRA divests us of jurisdiction over a petition for review.

A. Aggravated Felony Provision

The BIA held that Cazarez-Gutierrez is statutorily ineligible for cancellation of removal because his state-court felony conviction for possession of methamphetamine is an aggravated felony for immigration purposes. It is uncontested that Cazarez-Gutierrez is eligible for discretionary cancellation of removal if his offense was not an aggravated felony for immigration purposes because he has met the other requirements under 8 U.S.C. § 1229b(a). However, if Cazarez-Gutierrez's offense is an aggravated felony, he is not eligible for cancellation of removal and we have no jurisdiction over his petition for review.³

Under the INA, the term "aggravated felony" includes, inter alia, "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). The BIA concluded that Cazarez-Gutierrez's drug possession conviction was a drug trafficking crime under 18 U.S.C. § 924(c). "Drug trafficking crime" is defined as "any felony punishable under the Controlled Substances Act, the Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act." 18 U.S.C. § 924(c)(2). "The term [aggravated felony] applies to an offense... whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years." 8 U.S.C. § 1101(a)(43).

1. Precedent

The Ninth Circuit has not decided whether a state felony drug offense is an aggravated felony for immigration purposes if the offense is not punishable as a felony under federal drug laws⁴ and contains no trafficking element. The Second and Third Circuits hold that state felony drug offenses are not aggravated felonies for immigration purposes unless the offense contains a trafficking element or is punishable as a felony under the federal laws enumerated in 18 U.S.C. § 924(c)(2).⁵ Gerbier v. Holmes, 280 F.3d 297 (3d Cir.2002); Aguirre v. INS, 79 F.3d 315 (2d Cir.1996). To the contrary, in the Fifth Circuit, a state offense that is a felony under state law but is punishable under the enumerated federal laws only as a misdemeanor is an aggravated felony for immigration purposes. United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.2001). Our analysis is informed by the interpretations of the other courts of appeals, and we ultimately come down on the side of the Second and Third Circuits.

a. The Second and Third Circuits' approach

Although the Second Circuit originally interpreted drug trafficking crime for immigration purposes to include offenses punished as felonies by the convicting state even if not punishable as felonies under federal law, the Aguirre Court held that "the interests of nationwide uniformity outweigh our adherence to Circuit precedent." 79 F.3d at 317, overruling Jenkins v. INS, 32 F.3d 11 (2d Cir.1994). Therefore, Aguirre adopted the rule that a state drug offense is an aggravated felony for immigration purposes only if it would be punishable as a felony under federal law or the crime contained a trafficking element. Id. The Aguirre decision relies primarily on the need for uniformity in immigration law, as well as deference to the BIA's then-current uniform interpretation. Id. Subsequently, the Third Circuit's Gerbier opinion fleshed out this reasoning, focusing on the need for national uniformity in immigration law and the legislative history of the provisions at issue. 280 F.3d at 304-05, 308-12. The Third Circuit concluded that an interpretation that incorporates the vagaries of state drug laws into federal immigration law "can not be what Congress intended in establishing a `uniform' immigration law." Id. at 312.

b. The Fifth Circuit's approach

The Hernandez-Avalos Court reached its conclusion by following cases interpreting the statutory definition of "drug trafficking crime" in the context of sentencing enhancement. 251 F.3d at 508 (citing United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir.1997)). Under the Sentencing Guidelines, anyone convicted of unlawful reentry after removal is subject to an enhanced penalty if she previously was convicted of an aggravated felony in the United States. U.S.S.G. § 2L1.2. The Sentencing Guidelines previously defined aggravated felony with reference to the INA, 8 U.S.C. § 1101(a)(43), which in turn incorporated...