Garcia v. Holder

• Citation: 638 F.3d 511
• Decision Date: 01 June 2011
• Docket Number: No. 09–4390.,09–4390.
• Parties: Jorge GARCIA, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

638 F.3d 511

Jorge GARCIA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09–4390.

United States Court of Appeals, Sixth Circuit.

March 28, 2011.Rehearing and Rehearing En Banc Denied June 1, 2011.

ON BRIEF: Kreuza Lako, Hilf & Hilf, PLC, Franklin, Michigan, for Petitioner.

Anthony P. Nicastro, United States Department of Justice, Washington, D.C., for Respondent.Before: GILMAN, GIBBONS, and COOK, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Petitioner Jorge Garcia faces removal to Mexico, his home country. Although he applied for cancellation of removal, the Board of Immigration Appeals (BIA) determined that he is ineligible for this relief because his state drug conviction for the attempted possession of marihuana with the intent to deliver the drug constitutes an “aggravated felony” under the Immigration and Nationality Act (INA). The BIA ruled that his state conviction is an aggravated felony because it corresponds to a felony drug crime under federal law. Garcia challenges the BIA's determination, arguing that his state conviction is not an aggravated felony because it corresponds to a misdemeanor drug crime under federal law rather than a felony drug crime. He also argues that he is entitled to a waiver of inadmissibility and relief due to the ineffective assistance of his counsel during the state drug proceeding. For the reasons set forth below, we DENY Garcia's petition for review.

I. BACKGROUND

Garcia became a lawful permanent resident of the United States in 1995. In 1998, he pled guilty to the attempted possession of marihuana with the intent to deliver the drug, in violation of Mich. Comp. Laws § 333.7401(2)(d)(iii). He was sentenced to a fine and costs totaling $1,150.

The Department of Homeland Security (DHS) began removal proceedings against him in 2005, alleging that he was removable because, among other things, he was an alien believed to be an illicit trafficker in a controlled substance and an alien who had been convicted of a controlled-substance offense under 8 U.S.C. §§ 1182(a)(2)(C) and 1182(a)(2)(A)(i)(II), respectively. Garcia admitted the factual allegations and conceded that he was removable as an alien convicted of a controlled-substance offense. But he sought a waiver of inadmissibility for his state drug conviction under 8 U.S.C. § 1182(h) and cancellation of removal under 8 U.S.C. § 1229b.

In July 2008, the immigration judge (IJ) concluded that Garcia should be denied both of these forms of relief. A § 1182(h) waiver for drug offenses is available only for a single offense of simple possession of 30 grams or less of marihuana. 8 U.S.C. § 1182(h). Because Garcia pled guilty to something more than simple possession of marihuana, the IJ reasoned that Garcia was not eligible for a § 1182(h) waiver.

Cancellation of removal, Garcia's other asserted basis for relief, is not available to an alien who, among other things, has been convicted of an offense deemed an aggravated felony under federal law. 8 U.S.C. § 1229b(a)(3). The IJ concluded that Garcia was not eligible for cancellation of removal because Garcia's state conviction constituted an aggravated felony due to the fact that (1) the conviction contained a trafficking element—namely, the intent to deliver—and (2) the elements of the state conviction would support a felony conviction under 21 U.S.C. § 841(a)(1) and punishment under 21 U.S.C. § 841(b)(1)(D). And even if Garcia were eligible for cancellation of removal, the IJ determined that Garcia had not demonstrated that he was entitled to such discretionary relief.

The BIA agreed. Citing Lopez v. Gonzales, 549 U.S. 47, 55, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), the BIA reasoned that Garcia's state offense would be an aggravated felony under the “categorical approach” if the elements of his state offense corresponded to the elements of a federal felony offense under the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq. Because the BIA found that Garcia's state offense corresponded to the federal felony offense of marihuana distribution, which was punishable by up to five years' imprisonment under 21 U.S.C. § 841(b)(1)(D), it concluded that Garcia's offense should be considered an aggravated felony. The BIA rejected Garcia's argument that the federal offense comparable to his state offense was instead the misdemeanor provision of 21 U.S.C. § 841(b)(4). According to the BIA, that provision is not a discrete offense, but rather a mitigating sentencing provision that Garcia had to prove was applicable by showing that his offense involved only a small amount of marihuana without any remunerative exchange.

Because the absence of these mitigating facts—namely, a small amount of marihuana and no remunerative exchange—would not need to be established by the government in order to convict Garcia of the federal felony offense, the BIA reasoned that drug quantity and remuneration are not elements of that offense. This led it to conclude that Garcia's state offense should be deemed an aggravated felony because the elements of that offense corresponded to the elements of the felony drug crime under 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846.

Garcia timely appealed the BIA's decision.

II. JURISDICTION

We have jurisdiction under 8 U.S.C. § 1252 because that statute provides for judicial review of removal orders. See 8 U.S.C. § 1252(a)(1), (b). But because Garcia is considered a criminal alien under 8 U.S.C. § 1252(a)(2)(C), our jurisdiction is limited to constitutional claims or questions of law raised in Garcia's petition. Id. § 1252(a)(2)(C), (D). The primary issue raised in Garcia's petition is whether his state conviction constitutes an aggravated felony under federal law. This is a legal question. See Patel v. Ashcroft, 401 F.3d 400, 407 (6th Cir.2005). We therefore have jurisdiction to review the issue.

III. ANALYSIS

A. The aggravated-felony issue

Because the BIA rendered its own opinion in this case rather than simply adopting the IJ's decision, we concentrate our review on the analysis of the BIA. See Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir.2008). We review de novo the legal question of whether Garcia's state drug conviction amounts to an aggravated felony under the INA. See Patel, 401 F.3d at 407. Although we generally defer to reasonable BIA interpretations of immigration statutes, we owe no deference to the BIA on this question because the answer depends on interpreting state and federal criminal statutes. Id.

An alien may apply for discretionary cancellation of removal if, among other things, the alien “has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). All of the offenses listed in 8 U.S.C. § 1101(a)(43) are deemed aggravated felonies, one of which is “illicit trafficking in a controlled substance ..., including a drug trafficking crime” as defined in 18 U.S.C. § 924(c). 8 U.S.C. § 1101(a)(43)(B). Section 924(c) in turn defines a drug-trafficking crime as “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.).”

A state drug offense is considered an aggravated felony if it falls within the general term “illicit trafficking.” Lopez v. Gonzales, 549 U.S. 47, 57, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). “Illicit trafficking” is not statutorily defined, but the Supreme Court has reasoned that “ordinarily ‘trafficking’ means some sort of commercial dealing.” Id. at 53, 127 S.Ct. 625. Neither the BIA nor the government contend, however, that Garcia's state offense counted as an aggravated felony under this route because the statute he violated does not require commercial dealing. See Mich. Comp. Laws §§ 333.7401(2)(d)(iii) and 333.7105(1).

The other way that a state drug offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) is where the state offense is considered a drug-trafficking crime, which occurs if the state offense “proscribes conduct punishable as a felony” under the CSA. Lopez, 549 U.S. at 60, 127 S.Ct. 625. In other words, “a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony.” Id. at 57, 127 S.Ct. 625. The CSA defines a felony as a crime “to which it assigns a punishment exceeding one year[s'] imprisonment.” Id. at 56 n. 7, 127 S.Ct. 625. An alien convicted of such an offense is not eligible for cancellation of removal. Carachuri–Rosendo v. Holder, ––– U.S. ––––, 130 S.Ct. 2577, 2589, 177 L.Ed.2d 68 (2010) (citing 8 U.S.C. § 1229b(a)(3)). This framework for determining whether a state drug offense is considered a drug-trafficking crime has sometimes been called the “hypothetical federal felony” rule. Rashid v. Mukasey, 531 F.3d 438, 442–43 (6th Cir.2008).

Under this rule, we use the “categorical approach” to determine if a state offense constitutes an aggravated felony. Id. at 447. In doing so, we may “look only to the fact of conviction and the statutory definition of the prior offense,” id. (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)), and may not “look through to the defendant's actual criminal conduct,” id. (quoting United States v. Montanez, 442 F.3d 485, 489 (6th Cir.2006)). The elements of the crime are the most important factors to consider. Montanez, 442 F.3d at 492.

Garcia pled guilty to and was sentenced for attempted possession with intent to deliver marihuana, in violation of Mich. Comp. Laws § 333.7401(2)(d)(iii). The elements of that offense are an attempt to possess with intent to deliver less than five kilograms of the drug. Id. § 333.7401(1), (2)(d)(iii). No commercial transaction is required under the Michigan statute because “deliver” is defined as “the actual, constructive, or attempted transfer from 1 person to another of a controlled substance.” Id. § 333.7105(1).

The CSA similarly prohibits a person from “possess[ing] with intent to ... distribute ... a controlled substance.” 21 U.S.C. § 841(a)(1). Marihuana...