Cazarez-Gutierrez v. Ashcroft

Decision Date26 January 2004
Docket NumberNo. 02-72978.,02-72978.
Citation356 F.3d 1015
PartiesJesus Aaron CAZAREZ-GUTIERREZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

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.

Petitioner Jesus Aaron Cazarez-Gutierrez ("Cazarez-Gutierrez") appeals the 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. We grant the petition and remand to the BIA.1

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. Ann. § 13 3407 (West 1997). 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. 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 conviction, but exercised his discretion to grant him cancellation of removal under § 240A(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C § 1229b(a). The government appealed the decision, arguing that the IJ had abused his discretion in granting Cazarez-Gutierrez cancellation of removal. On August 30, 2002, the BIA reversed the cancellation of removal, 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 INA, 8 U.S.C. § 1101(a)(43)(B), rendering him ineligible for relief under 8 U.S.C. § 1229b(a).2 Petitioner timely filed this petition for review of the BIA's decision.

II. JURISDICTION AND STANDARD OF REVIEW
A. Jurisdiction

We have jurisdiction under 8 U.S.C. § 1252 to review final removal orders issued by the BIA. The government challenges our jurisdiction in this case, because the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") divests this Court of jurisdiction to review an order of removal against aliens removable for having committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). However, this Court retains "jurisdiction to determine its jurisdiction," which includes determining whether a particular offense constitutes an aggravated felony for immigration purposes. Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1064-65(9th Cir.2003). Because the central question in this case is whether Cazarez-Gutierrez's offense was an aggravated felony, the jurisdictional question and the merits collapse into one. Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000). Because we conclude that Cazarez-Gutierrez was not convicted of an aggravated felony for immigration purposes, we confirm our jurisdiction and grant relief to Cazarez-Gutierrez.

B. 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, 214 F.3d at 1131.

III. DISCUSSION
A. Statutory Framework

A lawful permanent resident is eligible for discretionary cancellation of removal if he: (1) has been lawfully admitted for permanent residence for not less than five years; (2) has resided in the United States continuously for seven years after having been admitted in any status; and (3) has not been convicted of any aggravated felony. 8 U.S.C. § 1229b(a). The first two elements of eligibility for cancellation of removal are not at issue. This case turns upon whether Cazarez-Gutierrez's state-court felony conviction for possession of methamphetamine is an aggravated felony for immigration purposes.

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 Petitioner'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).

B. 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 laws3 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).4 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, any state offense that is a felony under state law and is punishable under the enumerated federal laws either as a misdemeanor or a felony 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.

1. The Second and Third Circuits' approach

Although the Second Circuit originally interpreted drug trafficking crime for immigration purposes in the same way that the term is interpreted for sentencing purposes, the Aguirre Court held that "the interests of nationwide uniformity outweigh our adherence to Circuit precedent" and 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. 79 F.3d at 317, overruling Jenkins v. INS, 32 F.3d 11 (2d Cir.1994). The Aguirre decision is short and relies primarily on the need for uniformity in immigration law, as well as deference to the BIA's then-current uniform interpretation. 79 F.3d at 317. 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. The Third Circuit concluded that an interpretation that incorporates the vagaries of state drug laws into federal immigration law "cannot be what Congress intended in establishing a `uniform' immigration law." 280 F.3d at 312.

2. 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 was previously convicted of an aggravated felony in the United States. U.S.S.G. § 2L1.2. The Sentencing Guidelines define aggravated felony with reference to the INA, 8 U.S.C. § 1101(a)(43), which in turn incorporates the definition of drug trafficking crime under 18 U.S.C. § 924(c). See United States v. Ballesteros-Ruiz, 319 F.3d 1101, 1103 (9th Cir.2003). As noted above, a drug trafficking crime includes any felony punishable under the CSA and two other federal drug laws. 18 U.S.C. § 924(c)(2). Hinojosa-Lopez concluded that "drug trafficking crime" includes any state offense that is (1) punishable under the CSA and (2) a felony, relying on the text of the definition of drug trafficking crime, the decisions of other federal courts of appeals, and commentary in the Sentencing Guidelines. 130 F.3d at 693-94.

In the sentencing context, this Court and all other federal courts of appeals that have interpreted "drug trafficking crime" have used similar reasoning and have adopted similar definitions of drug trafficking crime, encompassing any offense that is both punishable under the CSA and prosecuted as a felony. See, e.g., United States v. Ibarra-Galindo, 206 F.3d 1337, 1339 (9th Cir.2000); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir.1999); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir. 1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 364 (1st Cir.1996);...

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