Berhe v. Gonzales, 05-1870.

• Citation: 464 F.3d 74
• Decision Date: 26 September 2006
• Docket Number: No. 05-2239.,No. 05-1870.,05-1870.,05-2239.
• Parties: Ambessa Hagos BERHE, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent. Herman Henry, Petitioner, v. Alberto R. Gonzales, `United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

464 F.3d 74

Ambessa Hagos BERHE, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.

Herman Henry, Petitioner, v. Alberto R. Gonzales, `United States Attorney General, Respondent.

No. 05-1870.

No. 05-2239.

United States Court of Appeals, First Circuit.

Heard May 2, 2006.

Decided September 26, 2006.

William W. Fick, with whom Foley Hoag LLP was on brief, for petitioner Berhe.

Jeremiah Friedman, with whom Ilana Greenstein, Harvey Kaplan, Maureen O'Sullivan and Kaplan, O'Sullivan & Friedman, LLP, were on brief, for petitioner Henry.

William E. Graves, Jr. and Graves & Doyle, on brief for Committee for Public Counsel Services, National Immigration Project of the National Lawyers Guild and Immigrant Defense Project of the New York State Defenders Association, amici curiae in support of petitioner in No. 05-2239.

John J. Andre, Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, with whom Peter D. Keisler, Assistant Attorney General, Civil Division, Michael P. Lindeman, Assistant Director, and Ethan B. Kanter, Senior Litigation Counsel, Office of Immigration Litigation, were on brief in No. 05-1870, and with whom Peter D. Keisler, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director and William Minick, Attorney, Office of Immigration Litigation, were on brief in No. 05-2239, for respondent.

Before SELYA, LIPEZ, and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Herman Henry and Ambessa Hagos Berhe¹ each petition for review of Board of Immigration Appeals' decisions ordering their removal. We have written a single opinion dealing with those separate petitions because they both question whether a state misdemeanor drug offense can constitute an "aggravated felony" for the purposes of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1101(a)(43). Petitioners face removal from the United States on the basis of their respective state misdemeanor convictions for possession of a controlled substance. The Board denied their applications for discretionary relief from removal on account of their aggravated felony convictions. The petitioners argue, inter alia, that their respective state convictions should not be considered "aggravated felonies" because Massachusetts, the convicting authority in both cases, classified the crimes as misdemeanors.

We reject the petitioners' contentions that we may only look to state law in such cases and reaffirm that a state misdemeanor drug offense can amount to an "aggravated felony" if that offense would have been a felony had it been charged under the federal drug laws. Because Henry's offense—possession with intent to distribute—would have been a felony had it been charged under federal law, we deny his petition. The record of Berhe's state conviction, however, reveals that he was convicted merely for simple possession, a misdemeanor under federal law. For that reason, among others, we vacate the Board's order and remand Berhe's case for further proceedings.

We begin our discussion by outlining the relevant procedural and factual background of the respective petitions.

I.

A. Henry's petition

Henry is a Jamaican national who was admitted to the United States as a permanent resident in 1984. In 2001, he pleaded guilty in Massachusetts state court to possession of marijuana with intent to distribute in violation of Mass. Gen. Laws ch. 94C, § 32C(a), a misdemeanor under Massachusetts law. Two years later, Henry traveled abroad and was denied re-admission upon his return to the United States. The Department of Homeland Security (DHS)charged Henry with being removable because of his 2001 drug conviction. See INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (declaring inadmissible "any alien convicted of" violating a law "relating to a controlled substance"); INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C)(i) (declaring inadmissible any alien "the Attorney General knows or has reason to believe . . . is or has been an illicit trafficker in any controlled substance").

At a hearing before an immigration judge, Henry admitted the factual allegations charged by DHS and conceded removability on the ground that he had violated a law relating to controlled substances. He denied, however, that he was removable as an "illicit trafficker" in controlled substances. He also filed an application for cancellation of removal, arguing that his removal would result in exceptional hardship to his family living in the United States, who were all either citizens or lawful permanent residents. See INA § 240A(a), 8 U.S.C. § 1229b(a)(3). The immigration judge found Henry removable as charged. Although the judge deemed Henry eligible for cancellation of removal, she denied Henry's application as a matter of discretion. Both Henry and DHS appealed to the Board.

DHS challenged the immigration judge's legal conclusion that Henry was eligible for cancellation of removal. According to DHS, Henry was ineligible for such relief because he had been convicted of an "aggravated felony." See id. (providing the Attorney General with discretion to cancel the removal of any alien who "has not been convicted of any aggravated felony"); id. § 1101(a)(43)(B) (defining "aggravated felony").

The Board sustained DHS's appeal. It observed that, under this court's precedent, a state drug offense qualifies as an "aggravated felony" if it is punishable under one of the federal drug enforcement statutes, including the Controlled Substances Act (CSA), and is a felony. See Amaral v. INS, 977 F.2d 33, 35 (1st Cir. 1992). The Board found that possession of marijuana with intent to distribute is punishable under the CSA by a maximum of five years' imprisonment, see 21 U.S.C. § 841(a)(1), (b)(1)(D), and would be classified as a felony under federal law, see 18 U.S.C. § 3559(a) (any offense punishable by more than one year in prison is a felony). Because Henry's Massachusetts offense would have been punishable as a felony under federal law, the Board concluded that it was an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(B). The Board therefore found Henry ineligible for cancellation of removal and ordered him removed to Jamaica.

B. Berhe's petition

Berhe was born in 1978 in a city in Ethiopia, which is now a part of Eritrea. His birth mother gave him up for adoption during the Ethiopian civil war and his adoptive parents thereafter took him to Sudan. Four years later, in 1987, he and his adoptive parents were admitted to the United States as refugees. In 1988, Berhe's status was adjusted to lawful permanent resident. Since his admission to the United States, Berhe has never returned to Eritrea. Nor has he had any contact with any surviving family members there.

In 1996, Berhe was convicted in a Massachusetts municipal court for simple possession of crack cocaine under Mass. Gen. Laws ch. 94C, § 34, and for assault and battery of a police officer, and was sentenced to six months' probation. In 2003, he pleaded guilty to simple possession of crack cocaine in Massachusetts state district court, and received a six-month suspended sentence. In prosecuting the 2003 offense, the Commonwealth of Massachusetts did not charge Berhe with a prior conviction because it did not seek a recidivism-based sentence enhancement. See Mass. Gen. Laws ch. 278, § 11A (providing that if the government seeks enhanced penalties because of a prior conviction, the defendant "shall be entitled to a trial by jury of the issue of conviction of a prior offense"). Both the 1996 conviction and the 2003 conviction were misdemeanors under Massachusetts law. See Mass. Gen. Laws ch. 274, § 1 ("A crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors.").

In 2004, DHS initiated removal proceedings against Berhe, charging that he was removable because of his 2003 conviction for simple possession of crack cocaine. See INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (providing that any alien convicted of violating a law "relating to a controlled substance ... is deportable"). Berhe conceded removability, but submitted applications seeking cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Berhe's asylum application asserted that he would be persecuted on account of his religion were he returned to Eritrea.

DHS subsequently filed a supplemental charge of removability contending that Berhe's 2003 conviction was for an "aggravated felony," see id. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony . . . is deportable."). DHS argued that because Berhe had a prior drug conviction, his 2003 misdemeanor simple possession conviction was an "aggravated felony" under the INA. See id. § 1101(a)(43)(B). As a result, DHS argued, Berhe was statutorily ineligible for the discretionary relief of asylum or cancellation of removal. See id. §§ 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i), 1229b(a)(3). DHS also argued that an aggravated felony is presumptively a "particularly serious crime," which rendered Berhe ineligible for withholding of removal. See id. § 1231(b)(3)(B)(ii).

Following a hearing, an immigration judge found Berhe removable on the basis of the original controlled substance charge, but not on the aggravated felony charge. The judge concluded that, because Berhe's 2003 conviction was classified by Massachusetts law as a misdemeanor, it could not be considered an aggravated felony. The judge therefore evaluated Berhe's claims for relief and granted him asylum, withholding of removal, and cancellation of removal, but denied relief under the CAT. DHS appealed to the Board and Berhe filed a cross-appeal from the denial of his CAT claim.

The Board sustained DHS's appeal. The Board stated that it would apply the First Circuit's approach for determining whether the state conviction is an aggravated felony. The Board found that...