Gonzales-Gomez v. Achim, 05 C 0189.
| Decision Date | 11 April 2005 |
| Docket Number | No. 05 C 0189.,05 C 0189. |
| Citation | 372 F.Supp.2d 1062 |
| Parties | Rafael GONZALES-GOMEZ, Petitioner, v. Deborah ACHIM, Immigration & Customs Enforcement, Chicago Field Office Director, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
Rafael Gonzalez-Gomez, Elgin, IL, pro se.
AUSA, Sheila McNulty, United States Attorney's Office, Chicago, IL, for Respondent.
Presently before us is Rafael Gonzales-Gomez's petition for a writ of habeas corpus. Following its decision in Yanez-Garcia v. Ashcroft, 388 F.3d 280 (7th Cir.2004), the Seventh Circuit Court of Appeals transferred his petition for review of the Board of Immigration Appeal's ("BIA") deportation decision to our court to be considered as a petition for writ of habeas corpus. For the reasons stated below, we grant Gonzales-Gomez's petition.
Petitioner Gonzales-Gomez entered the United States from Mexico without inspection in January 1989 and became a lawful permanent resident of the United States on September 12, 1995. On November 29, 2000, Gonzales-Gomez was convicted of unlawful possession of a controlled substance, namely cocaine. Under Illinois law, Gonzales-Gomez's drug conviction for unlawful possession is classified as a felony. See 720 ILCS 570/402(a).
On February 12, 2001, the Immigration and Naturalization Service ("INS"), now the Department of Homeland Security, Immigration and Customs Enforcement, charged Gonzales-Gomez with deportability, for having been convicted of a violation related to a controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i). Subsequently, the INS added an additional charge, alleging that Gonzales-Gomez was also deportable for having been convicted of an "aggravated felony" based upon the Illinois felony conviction. 8 U.S.C. § 1227(a)(2)(A)(iii) (); 8 U.S.C. § 1101(a)(43)(B) (). After hearings on his case, the immigration judge found that Gonzales-Gomez had been convicted of unlawful possession of a controlled substance and, therefore, was subject to deportation. The judge also found that following the BIA's decision in In re Yanez-Garcia, 2002 WL 993589, 23 I & N Dec. 390 (BIA 2002), Gonzales-Gomez's state drug conviction is considered a drug trafficking crime, as defined in section 924(c) of Title 18, and, therefore, an aggravated felony. Accordingly the immigration judge found that Gonzales-Gomez was ineligible to apply for relief from removal. See 8 U.S.C. § 1229b(a)(3) ().
Gonzales-Gomez filed a timely notice of appeal to the BIA, which affirmed the decision of the immigration judge without opinion. Gonzales-Gomez then filed an appeal to the Seventh Circuit, which issued an order transferring the case to our court in light of their recent decision in Yanez-Garcia v. Ashcroft, 388 F.3d 280 (7th Cir.2004) ().
The basis of Gonzales-Gomez's challenge on appeal to the Seventh Circuit, and now as transferred to our court for consideration as a petition for habeas corpus, concerns the proper interpretation of the term "aggravated felony," as it is used and defined in several interrelated provisions of the Immigration and Nationality Act ("INA") and federal criminal statutes.
As a general matter, we give deference to the BIA in its administration of the INA because Congress has delegated authority to the BIA to administer that Act. See In re Yanez-Garcia, 23 I & N Dec. at 396. However, in this case, the definition of the term "aggravated felony" turns on the interpretation of 18 U.S.C. § 924(c)(2), a provision of the federal criminal law and not of immigration law. See id. Thus, the BIA's reading of section 924(c)(2) is not entitled to deference but rather, is a legal question that we review de novo. See id. at 396-97 (); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.2004) ()
Under the INA, certain permanent residents who are subject to deportation may apply for cancellation of removal; however, they may not do so if convicted of an "aggravated felony." 8 U.S.C. § 1229b(a)(3). In Gonzales-Gomez's case, the immigration judge found his Illinois state conviction for drug possession to be an "aggravated felony," and thus, Gonzales-Gomez was not allowed to apply for cancellation of removal. Gonzales-Gomez argues that because his crime would be punishable only as a misdemeanor under federal law, his Illinois conviction should not be considered an aggravated felony. If Gonzales-Gomez's Illinois state felony conviction for drug possession is not properly considered an "aggravated felony," the immigration judge should have allowed him to apply for cancellation of removal and considered such eligibility in his deportation proceedings. Thus, the principal question to be decided on Gonzales-Gomez's habeas petition is whether a permanent resident's conviction for drug possession, which is considered a felony under the convicting state's law, but which would have been a misdemeanor if prosecuted under federal law, is an "aggravated felony" under the INA, which renders him ineligible for cancellation of removal.
As mentioned above, the INA provides that a permanent resident who has "been convicted of any aggravated felony" is not eligible for cancellation of removal. 8 U.S.C. § 1229b(a)(3). Under Section 101 of the INA, the term "aggravated felony" includes "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). It is undisputed that a simple drug possession does not constitute "illicit trafficking in a controlled substance," as that language is interpreted in the first part of Section 101 of the INA cited above. Thus, we are only concerned with the second part of Section 101, which includes a "drug trafficking crime (as defined in section 924(c) of Title 18)." Section 924(c) of Title 18, in turn, defines "drug trafficking crime" as "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App.1901 et seq.)." 18 U.S.C. § 924(c)(2).
For our purposes, the only relevant statute of the three referenced in section 924(c) is the Controlled Substances Act ("CSA"). One definitional provision of the CSA defines "felony," "as used in this subchapter," as "any Federal or State offense classified by applicable Federal or State law as a felony." 21 U.S.C. § 802(13). A separate provision in the federal criminal law outlines the federal sentencing scheme, providing that an offense punishable by up to a year of imprisonment is defined as a federal misdemeanor, whereas a crime subject to a prison sentence of more than one year is defined as a felony. 18 U.S.C. § 3559(a). The CSA punishes a first-time simple possession of a controlled substance, except for more than five grams of cocaine base or any quantity of flunitrazepam, by a term of imprisonment of not more than one year, or a fine of at least $1,000, or both. 21 U.S.C. § 844(a).
The immigration judge and the BIA determined that, following its decision in In re Yanez-Garcia, 2002 WL 993589, 23 I & N Dec. 390, Gonzales-Gomez's Illinois state drug conviction is an "aggravated felony" under the INA because the conviction is characterized as a felony under the law of the convicting state, Illinois, and the conduct underlying the conviction is punishable under the CSA, albeit as a misdemeanor. Gonzales-Gomez contends that the immigration judge and the BIA's interpretation of the relevant provisions was in error.
Beginning with its 1990 decision in Matter of Barrett, 1990 WL 385754, 20 I & N Dec. 171 (BIA 1990), and until 2002, the BIA interpreted "aggravated felony" for immigration purposes to include state drug offenses, but only if they would be punishable as felonies under the federal drug laws or contained a trafficking element. See Matter of K-V-D, 1999 WL 1186808, 22 I & N Dec. 1163 (BIA 1999); In re L-G-, 1995 WL 582051, 21 I & N Dec. 89 (BIA 1995); Matter of Davis, 1992 WL 443920, 20 I & N Dec. 536 (BIA 1992). In Barrett, the BIA first addressed the question of whether a state conviction for a drug-related offense that did not contain a trafficking element could constitute a drug trafficking crime and, therefore, an "aggravated felony" under the INA. 1990 WL 385754, 20 I & N Dec. at 173. Rejecting the defendant's argument that the "aggravated felony" provision in the INA referred only to felony convictions obtained under federal law, the BIA adopted what has since been termed the "Hypothetical Federal Felony" approach for drug offenses that do not contain a trafficking element. Id. at 178. Under the Hypothetical Federal Felony approach, a state drug conviction is considered an "aggravated felony" if the elements of...
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...I examined the second phrase, i.e. a "drug trafficking crime (as defined in section 924(c) of Title 18)." See Gonzales-Gomez v. Achim, 372 F.Supp.2d 1062, 1065 (N.D.Ill.2005). Section 924(c) of Title 18 defines the term "drug trafficking crime" as "any felony punishable under the Controlled......
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Gonzales-Gomez v. Achim
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