Carachuri-Rosendo v. Holder

• Decision Date: 29 May 2009
• Docket Number: No. 07-61006.,07-61006.
• Citation: 570 F.3d 263
• Parties: Jose Angel CARACHURI-ROSENDO, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

570 F.3d 263

Jose Angel CARACHURI-ROSENDO, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 07-61006.

United States Court of Appeals, Fifth Circuit.

May 29, 2009.

Thomas F. Perkinson, University of Houston Law Ctr., Houston, TX, Lawrence Erik Rushton (argued), Rushton Law Firm, Bellaire, TX, for Petitioner.

Ada Elsie Bosque (argued), John Clifford Cunningham, Saul Greenstein, Thomas Ward Hussey, Director, U.S. Dept. of Justice, OIL, Washington, DC, Sharon A. Hudson, U.S. Citizenship & Imm. Services, Houston, TX, for Respondent.

James Walden (argued), Gibson, Dunn & Crutcher, LLP, New York City, for Amicus Curiae, N.Y. State Defenders Ass'n.

Petition for Review of an Order of the United States Board of Immigration Appeals.

Before JONES, Chief Judge, and KING and ELROD, Circuit Judges.

EDITH H. JONES, Chief Judge:

Jose Angel Carachuri-Rosendo appeals an en banc order of the Board of Immigration Appeals (BIA) holding that he is ineligible for cancellation of removal based on a recidivist state misdemeanor conviction for drug possession that could have been punished as a felony under the federal Controlled Substances Act. The repeat conviction was deemed an aggravated felony under the Immigration and Naturalization Act (INA). Because this holding is correct, we DENY Carachuri's petition for review.

I. Background

Carachuri was admitted to the United States in 1993 and became a lawful permanent resident. In 2004, in a Texas court, he pled guilty to misdemeanor possession of marijuana and was sentenced to 20 days in jail. See TEX. HEALTH & SAFETY CODE § 481.121. A year later, he pled nolo contendere, also in Texas, to misdemeanor possession of Alprazolam (Xanax) and was sentenced to 10 days in jail. See TEX. HEALTH & SAFETY CODE § 481.117(b). He was not prosecuted under Texas law as a recidivist. See TEX. PENAL CODE § 12.43.

In October 2006, Carachuri received notice that he was removable for having "been convicted of a violation of ... any law ... of a State ... relating to a controlled substance." See 8 U.S.C. § 1227(a)(2)(B)(i). Carachuri applied for cancellation of removal,¹ but an immigration judge ruled that Carachuri was ineligible because he had been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3) (preventing cancellation of removal for aliens convicted of aggravated felonies). Specifically, the judge ruled Carachuri had committed a "drug trafficking crime," an aggravated felony under the INA, 8 U.S.C. § 1101(a)(43)(B), which is defined by reference to 18 U.S.C. § 924(c)(2) as "any felony punishable under the Controlled Substances Act." Under the CSA, in turn, a misdemeanor possession offense—committed after the conviction for a prior misdemeanor possession offense is final—can be punished as a felony because conviction requires a term of "not less than 15 days but not more than 2 years." 21 U.S.C. § 844(a); 18 U.S.C. § 3559(a) (defining a felony as any offense punishable by more than one year in prison). Because Carachuri's second state conviction could have been punished as a felony under the CSA, had he been prosecuted in federal court, he committed a "drug trafficking crime," making him ineligible for cancellation of removal.

Carachuri appealed to the BIA, which issued an en banc opinion. The BIA's preferred interpretation of 8 U.S.C. § 1101(a)(43)(B) would require that an alien's "status as a recidivist drug possessor must have been admitted or determined by a court or jury within the prosecution for the second drug crime." In re Carachuri-Rosendo, 24 I. & N. Dec. 382, 391 (B.I.A.2007). In other words, the second possession offense, the BIA reasoned, must be prosecuted under a state recidivism law that corresponds to the federal recidivism law; immigration judges should not go outside the record of the second conviction to determine what, hypothetically, might have been prosecuted. Id. at 393. The BIA did not follow this reasoning, however, because it was bound by this court's decision in United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005). There, we held, as the immigration judge did here, that a second state misdemeanor possession offense qualifies as an aggravated felony simply because it could have been prosecuted as a felony under federal law. Id. at 577. Accordingly, the BIA dismissed Carachuri's appeal, and Carachuri filed a timely petition for review.

II. Jurisdiction and Standard of Review

Although Carachuri has been deported, his removal does not render moot an otherwise valid petition for review of a removal order because he could pursue an application for cancellation of removal. See Lopez v. Gonzales, 549 U.S. 47, 52 n. 2, 127 S.Ct. 625, 629 n. 2, 166 L.Ed.2d 462 (2006). We are generally prohibited from reviewing removal orders for aliens who have committed an aggravated felony. Larin-Ulloa v. Gonzales, 462 F.3d 456, 460-61 (5th Cir.2006) (citing 8 U.S.C. § 1252(a)(2)(C)). A statutory exception, however, confers jurisdiction to review constitutional or legal questions raised in removal petitions. Id. at 461 (citing 8 U.S.C. § 1252(a)(2)(D)). Carachuri's petition for review falls within this exception, and we review the BIA's resolution of legal claims de novo. See id.

III. Discussion

Carachuri, with amicus curiae, advances the BIA's preferred interpretation of 8 U.S.C. § 1101(a)(43)(B) as applied to his case. Unlike the BIA, he contends that this court's alternative holding in United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir.2005), and our intervening decision in United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir.2008), do not control his case. They do.

In Sanchez-Villalobos, this court held, in a ruling since abrogated, that a single state drug possession conviction qualifies as an aggravated felony if the state crime is punishable under the CSA and it is punishable as a felony under state or federal law. 412 F.3d at 576. In an alternative, but still viable, holding this court also concluded that Sanchez's state possession offense qualified as an aggravated felony because it was his second possession offense and, therefore, could have been punished as a felony under the CSA's recidivism provision. Id. As we have often recognized, alternative holdings are binding precedent, not dicta. E.g., United States v. Wright, 496 F.3d 371, 375 n. 10 (5th Cir.2007).

The first holding was abrogated by the Supreme Court's opinion in Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), an immigration case. The Court rejected the argument that a single possession offense punished as a felony under state law, but as a misdemeanor under the CSA, qualifies as an aggravated felony. The Court was concerned that varying state criminal law classifications would frustrate the scheme Congress chose.² Id. at 58-59, 127 S.Ct. at 632-33. Recognizing this potential incongruity, the Court concluded that federal, not state law is determinative. It 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." Id. at 60, 127 S.Ct. at 633. This procedure, which looks to conduct proscribed by state law, not just the elements of the state law offense, and compares that conduct to federal law has been termed the "hypothetical approach."³ See, e.g., United States v. Cepeda-Rios, 530 F.3d 333, 335 (5th Cir.2008) (per curiam); United States v. Pacheco-Diaz, 513 F.3d 776, 779 (7th Cir.2008) (per curiam) denying rh'g to 506 F.3d 545 (7th Cir.2007); Berhe v. Gonzales, 464 F.3d 74, 80, 84 (1st Cir.2006).

Although Lopez abrogated Sanchez-Villalobos's first holding, the alternative holding remained untouched. In United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir.2008) (per curiam), we reaffirmed that Lopez is "consistent with our earlier `hypothetical' approach in Sanchez-Villalobos," and determined that a second state possession offense that could have been punished as a felony under federal law qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Id. at 334-35. Consequently, Carachuri's case is controlled by the alternative holding in Sanchez-Villalobos, as unaltered by the Supreme Court in Lopez, and as reaffirmed in Cepeda-Rios.

Nevertheless, Carachuri argues that the hypothetical approach applied in both Sanchez-Villalobos and Cepeda-Rios contravenes our prior case law. This court follows a categorical approach for immigration cases, under which "courts look to the text of the statute violated, not the underlying factual circumstances." See Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir.2000); Martinez v. Mukasey, 508 F.3d 255, 258 (5th Cir.2007) (per curiam).⁴ Because the hypothetical approach departs from past precedent, Carachuri argues, Sanchez-Villalobos and Cepeda-Rios must be abandoned. See Central Pines Land Co. v. United States, 274 F.3d 881, 893 (5th Cir.2001) ("[O]ne panel of this court may not overrule another.")

This argument is misplaced. We are not confined to the categorical approach in cases like Carachuri's because the Supreme Court in Lopez goes beyond the categorical approach. Lopez, 549 U.S. at 60, 127 S.Ct. at 633 (emphasis added) (ruling that if the conduct proscribed by state offense could have been prosecuted as a felony under the CSA, then the state conviction qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B)); see Pacheco-Diaz, 513 F.3d at 779; Rashid v. Mukasey, 531 F.3d 438, 443 (6th Cir.2008) ("The Lopez Court ... embraced the hypothetical federal-felony approach."). Lopez did not hold that courts or immigration officials should look to the alien's actual conduct as reflected in the record of conviction. But courts must look beyond the text of the state statute violated—a departure from the categorical approach, which confines courts to that text. Pacheco-Diaz, 513 F.3d at 779 ("Looking at the conduct reflected in the state convictions, as opposed to...