Fernandez v. Mukasey

• Decision Date: 15 September 2008
• Docket Number: No. 06-3994.,No. 06-3987.,No. 06-3476.,06-3476.,06-3987.,06-3994.
• Citation: 544 F.3d 862
• Parties: Omar C. FERNANDEZ, Florencio Victor Jimenez-Mateo, and Julio Calderon, Petitioners, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

544 F.3d 862

Omar C. FERNANDEZ, Florencio Victor Jimenez-Mateo, and Julio Calderon, Petitioners, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 06-3476.

No. 06-3987.

No. 06-3994.

United States Court of Appeals, Seventh Circuit.

Argued October 30, 2007.

Decided September 15, 2008.

Claudia Valenzuela, Midwest Immigrant and Human Rights Center, John D. Winters (argued), Butler, Rubin, Saltarelli & Boyd, Chicago, IL, for Petitioners.

Jennifer A. Levings (argued), Bryan S. Beier, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before MANION, ROVNER, and SYKES, Circuit Judges.

MANION, Circuit Judge.

Petitioners Florencio Victor Jimenez-Mateo, Julio Calderon, and Omar Cendejas-Fernandez (collectively "petitioners") were ordered removed from this country. The orders of removal were based on findings that petitioners' most recent state-court convictions for drug possession offenses constituted aggravated felonies under § 101(a)(43)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(B), because each of the petitioners had previously been convicted of a controlled substance offense. The petitioners have filed timely petitions for review in this court. They assert that their first and second state-court convictions for simple drug possession cannot amount to an "aggravated felony" under § 101(a)(43)(B) of the INA. Because we have already found in United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir.2007), that such convictions do constitute an "aggravated felony" under § 101(a)(43)(B) of the INA, we deny their petitions for review.

I.

We briefly summarize the facts and procedural history of each of the petitioners' cases below.

A. Julio Calderon

Calderon is a citizen of Mexico who entered the United States illegally. He is also a documented member of the Latin Kings street gang, a national criminal organization based in Chicago. See generally United States v. Olson, 450 F.3d 655, 661-62 (7th Cir.2006) (describing the organization of the Latin Kings). As one might expect of a member of the Latin Kings, Calderon has had several run-ins with the law. Most relevant to this opinion, however, are Calderon's convictions for marijuana possession: an October 30, 2002 conviction for marijuana possession in violation of 720 ILCS 550/4(a), and an August 8, 2006 conviction for two counts of marijuana possession in violation of 720 ILCS 550/4(a) and (b).

In October 2006, the Department of Homeland Security ("DHS") initiated removal proceedings against Calderon. DHS charged that Calderon was subject to removal under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony as defined in § 101(a)(43) of the INA, 8 U.S.C. § 1101(a)(43). DHS listed Calderon's three marijuana possession offenses as the basis for the aggravated felony charge. On November 8, 2006, DHS issued a final administrative removal order finding that Calderon was an aggravated felon and ordering him removed from the United States to Mexico. Calderon timely filed a petition for review of DHS's order in this court.

B. Omar Cendejas-Fernandez ("Fernandez")

Fernandez is a citizen of Mexico who was admitted to the United States as a lawful permanent resident in 1992. On September 28, 2001, Fernandez was convicted of two counts of cocaine possession in violation of 720 ILCS 570/402(c). On November 7, 2005, Fernandez again was convicted of cocaine possession in violation of 720 ILCS 570/402(c).

On March 29, 2006, DHS initiated removal proceedings against Fernandez. DHS charged that Fernandez was removable under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony as defined in § 101(a)(43)(B) of the INA, 8 U.S.C. § 1101(a)(43)(B). Fernandez was ordered to appear before an Immigration Judge ("IJ"). After a hearing on May 22, 2006, the IJ issued an oral decision ordering that Fernandez be removed to Mexico. In reaching that decision, the IJ first cited this court's decision in Ali v. Ashcroft, 395 F.3d 722 (7th Cir.2005), wherein we stated that any alien who has been convicted of a state controlled substance offense that is also a felony punishable under the Controlled Substances Act ("CSA") has, for immigration purposes, been convicted of an aggravated felony. The IJ then noted that Fernandez had been convicted of possessing a controlled substance in 2005 after a previous conviction for possessing a controlled substance in 2001. Because § 844(a) of the CSA, 21 U.S.C. § 844(a), makes drug possession punishable by more than one year of imprisonment—and hence a felony, see 18 U.S.C. § 3559(a)(5)—for those who have previously been convicted of a controlled substance offense, the IJ found by clear and convincing evidence that Fernandez had been convicted of an aggravated felony and was removable on that basis. In addition, the IJ found Fernandez statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3).

Fernandez appealed the IJ's decision to the Board of Immigration Appeals ("Board"). He argued that the IJ should not have found that his convictions qualified as an aggravated felony. The Board, however, agreed with the IJ that a state offense for possession of a controlled substance that occurred after a prior drug conviction qualified as a "drug trafficking crime" under § 101(a)(43)(B) of the INA, 8 U.S.C. § 1101(a)(43)(B), because, under § 844(a) of the CSA, the most recent conviction would be defined as a felony. Consequently, the Board affirmed the IJ's decision. Fernandez filed a timely petition in this court for review of the Board's decision.

C. Florencio Victor Jimenez-Mateo ("Mateo")

Mateo is a citizen of the Dominican Republic who was admitted to the United States on an immigrant visa in October 1966. On December 23, 1989, Mateo was convicted of possessing a controlled substance in violation of New York Penal Law § 220.03. On April 26, 2002, Mateo was convicted of attempted possession of a controlled substance in violation of 720 ILCS 5/8-4. On April 12, 2006, Mateo received his third controlled-substance conviction, this time for possession of a controlled substance in violation of 720 ILCS 570/402(c).

After his conviction in April 2006, DHS filed a notice to appear charging that Mateo was removable under § 237(a)(2)(B)(I) of the INA, 8 U.S.C. § 1227(a)(2)(B)(I), because of his April 2006 conviction for possession of a controlled substance. At a hearing before an IJ, Mateo through counsel conceded that he was removable as charged, but sought cancellation of removal. In an oral decision, the IJ found that Mateo was removable from the United States as an alien convicted of a controlled substance violation. The IJ also found that Mateo was statutorily ineligible for cancellation of removal because he had been convicted of an aggravated felony. In particular, the IJ classified Mateo's 2006 drug possession offense as an aggravated felony, since that offense occurred after Mateo had been convicted previously of two controlled substance offenses. Mateo appealed the IJ's aggravated felony finding to the Board, but the Board affirmed the IJ's decision. Mateo then filed a timely petition for review of the Board's order affirming the IJ.

II.

The sole issue on this appeal is whether the second (or, as is the case with Mateo, third) of each of the petitioners' multiple state-court convictions for drug possession was accurately characterized as an aggravated felony under § 101(a)(43)(B) of the INA. Section 101(a)(43) of the INA provides an extensive list of crimes that qualify as aggravated felonies. Specifically, subsection 101(a)(43)(B) adds "illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in section 924(c) of Title 18) ... whether in violation of Federal or State law" to that list. 8 U.S.C. § 1101(a)(43). Section 924(c), in turn, defines the term "drug trafficking crime" as, among other things, "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)." 18 U.S.C. § 924(c)(2). As the Supreme Court has stated, a state drug offense is considered "analogous" to a "felony punishable under the Controlled Substances Act," and, as a result, an aggravated felony for purposes of the INA, "only if it proscribes conduct punishable as a felony under that federal law." Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 632 n. 8, 633, 166 L.Ed.2d 462 (2006).

In this case, the petitioners argue that their state convictions were wrongly classified as aggravated felonies because the state statutes under which they were convicted only proscribe simple possession, which is not a felony under the CSA. In response, the government contends that the petitioners' most recent convictions for drug possession are analogous to what the courts refer to as "recidivist possession" under 21 U.S.C. § 844(a), which is a felony under the CSA, because those convictions were preceded by at least one prior drug possession conviction. The pertinent portion of § 844(a) states:

It shall be unlawful for any person knowingly or intentionally to possess a controlled substance.... Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both, except that if he commits such offense after a prior conviction under this subchapter or subchapter II of this chapter, or a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, has become final, he shall be sentenced to a term of imprisonment for not less than 15 days but not more than 2 years, and shall be fined a minimum of $2,500....

21 U.S.C. § 844(a). The second sentence in the portion of § 844(a) quoted above transforms what would ordinarily be a misdemeanor offense for simple possession into a felony where the...