Martinez v. Mukasey
| Decision Date | 18 December 2008 |
| Docket Number | Docket No. 07-3031-ag. |
| Citation | 551 F.3d 113 |
| Parties | Elvis MARTINEZ, Petitioner, v. Michael MUKASEY, Attorney General of the United States,<SMALL><SUP>1</SUP></SMALL> Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Matthew L. Guadagno (Jules E. Coven & Kerry W. Bretz, on the brief), Bretz & Coven, New York, N.Y., for Petitioner.
Michael C. Heyse, Trial Attorney, Office of Immigration Litigation, for Jeffrey S. Bucholtz, Assistant Attorney General, Civil Division, Washington, D.C., for Respondent.
Alina Das & Manuel Vargas, New York State Defenders Association, New York, N.Y.; Nancy Morawetz, Washington Square Legal Services, New York, N.Y., Amicus Curiae in Support of Petitioner.
Before: WINTER, NEWMAN, and CALABRESI, Circuit Judges.
Petitioner, Elvis Martinez, was convicted of two state drug offenses for distribution of a small quantity of marihuana.2 The question before us is whether, under Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), these state convictions are "aggravated felonies" under the INA. To determine whether the state convictions count as aggravated felonies, we must decide whether they are the equivalent of federal felony drug trafficking, under the Controlled Substances Act (CSA), see 21 U.S.C. §§ 841(a)(1), (b)(1)(D), or rather are the equivalent of a federal misdemeanor in light of the CSA's mitigating exception that punishes distribution of "a small amount of marihuana for no remuneration" as a misdemeanor, see 21 U.S.C. § 841(b)(4). Because the state conviction could have been for nonremunerative transfer of as little as two grams of marihuana, we hold that under our categorical approach, Petitioner's conviction is the equivalent of a federal misdemeanor under the CSA and not an aggravated felony.
Elvis Martinez is a 27-year-old native of the Dominican Republic. He has been a lawful permanent resident of the United States since 1989. On March 3, 2000, Martinez was convicted following a guilty plea of criminal sale of marihuana in the fourth degree, a misdemeanor, in violation of N.Y. Penal Law § 221.40. On April 18, 2001, he again pled guilty and was convicted of the same offense.
The Government began removal proceedings against Martinez by serving him with a Notice to Appear on June 21, 2001. The Government initially charged two grounds of removability based solely on the March 2000 conviction. The first was for conviction of a controlled substance violation, pursuant to INA § 237(a)(2)(B)(I), 8 U.S.C. § 1227(a)(2)(B)(I). The second ground was for conviction of an aggravated felony, as defined in INA § 101(a)(43)(B), pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
A hearing was held before an Immigration Judge (IJ) on September 24, 2003. Martinez admitted committing a controlled substance violation but denied that he had been convicted of an aggravated felony. He, therefore, conceded removability under INA § 237(a)(2)(B)(i), but sought cancellation of removal, for which he was eligible so long as he was not found to have committed an aggravated felony.
At the same hearing, Martinez relied on a Third Circuit case, Steele v. Blackman, 236 F.3d 130, 131 (3d Cir.2001), which held that a conviction under New York Penal Law § 221.40 did not constitute an aggravated felony. Martinez further argued that our decision in United States v. Simpson, 319 F.3d 81 (2d Cir.2002), which seemingly cut against him, was limited to the sentencing context only and did not cover removability.
After considering whether Martinez had been convicted of an aggravated felony within the meaning of the INA, the IJ ruled on October 24, 2003 that Martinez's drug convictions were aggravated felonies, thereby precluding his eligibility for cancellation of removal under INA § 240A(a)(3). The IJ characterized the question as "troubling." He said that the BIA had held in In re Elgendi, 23 I. & N. Dec. 515 (BIA 2002), that a state drug offense was only an aggravated felony if it was a felony in the state in which it was committed, but that the Second Circuit had held in Aguirre v. INS, 79 F.3d 315 (2d Cir.1996), and Simpson, 319 F.3d at 85, that a state drug offense was an aggravated felony if it would be a felony under federal law. Declaring himself bound by the Second Circuit, the IJ held that Martinez's convictions were aggravated felonies. The BIA summarily affirmed.
Martinez filed a habeas petition in the Eastern District of New York on April 15, 2004. It was transferred to the Western District of New York and then, after full briefing to the district court, transferred to the Second Circuit on June 20, 2005, pursuant to the REAL ID Act.
The case was argued before our court on May 18, 2006. The panel initially waited to make a decision until the Supreme Court had ruled in Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). After the Supreme Court decided Lopez, we requested supplemental briefing on the impact of that decision. On May 8, 2007, we remanded the case to the BIA for reconsideration in light of Lopez.
On remand, the BIA did not request briefing. Rather, the Board simply rendered a new decision ordering that Martinez should be removed as an aggravated felon who is thus ineligible for relief. The Board observed that under Lopez, the question of whether Martinez's state conviction was an aggravated felony under the INA rested upon whether that crime would have been punishable as a felony under the CSA, 21 U.S.C. § 801 et. seq. The Board reasoned that the New York crime of sale of marihuana is comparable to the federal crime of marihuana distribution, 21 U.S.C. § 841(a)(1), which pursuant to 21 U.S.C. § 841(b)(1)(D), is punishable by up to five years in prison and is therefore a felony.
In so doing, the BIA held that although the distribution of "a small amount of marihuana for no remuneration" is punished as a misdemeanor under 21 U.S.C. § 841(b)(4), that misdemeanor provision is a mitigating exception in a sentencing statute in which a federal defendant bears the burden of showing that he falls into the lower misdemeanor category. The Board held, therefore, (a) that Martinez bore the burden of showing that his state crime was the equivalent of a federal misdemeanor and (b) that he had not met this burden.
Whether a conviction qualifies as an aggravated felony is a question of law, Dulal-Whiteway v. DHS, 501 F.3d 116, 120 (2d Cir.2007), which we review de novo, 8 U.S.C. § 1252(a)(2)(D).
A permanent resident alien is eligible to apply for cancellation of removal if the alien "(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony." 8 U.S.C. § 1229b(a). Only the third of these conditions is in dispute in this case.
In pertinent part, the INA defines the term "aggravated felony" to include "illicit trafficking in a controlled substance (as defined in Section 102 of the Controlled Substances Act) including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code)." INA § 101(a)(43)(B), as added by § 7342, 102 Stat. 4469, and as amended by § 222(a), 108 Stat. 4320, 8 U.S.C. § 1101(a)(43)(B), 8 U.S.C. § 1101(a)(43). Under the CSA, a "controlled substance" is "a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of [21 U.S.C. § 812]." 21 U.S.C. § 802(6). Marihuana is a schedule I drug under the CSA. 21 U.S.C. § 812.
The general phrase "illicit trafficking" is left undefined, but 18 U.S.C. § 924(c)(2) identifies the subcategory by stating that a "drug trafficking crime" is "any felony punishable under the Controlled Substances Act" (or under either of two other federal statutes having no bearing on this case). Following the listing, § 101(a)(43) of the INA provides in its penultimate sentence that "[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law" (or, in certain circumstances, "the law of a foreign country."). 8 U.S.C. § 1101(a)(43). The United States Supreme Court has held that "a state offense constitutes a `felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable as a felony under that federal law." Lopez, 127 S.Ct. at 633. Thus, for a state drug offense to qualify as a "drug trafficking crime" and, by extension, an aggravated felony, it must correspond to an offense that carries a maximum term of imprisonment exceeding one year under the CSA. See id. at 631 & n. 7.
In deciding whether a conviction fits within the definition of "aggravated felony" in 8 U.S.C. § 1101(a)(43), we have followed the Supreme Court in adopting a "categorical approach." Gertsenshteyn v. Mukasey, 544 F.3d 137, 143 (2d Cir.2008). Under this approach, which is sometimes called the Taylor-Shepard approach, after Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), "`the singular circumstances of an individual petitioner's crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant[.]'" Gertsenshteyn, 544 F.3d at 143 (quoting Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001)) (alteration in original).3 We thus "`look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime.'" Dulal-Whiteway, 501 F.3d at 121 (quoting Canada v. Gonzales, 448 F.3d 560, 565 (2d Cir.2006)).4
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