Gousse v. Ashcroft
| Decision Date | 06 August 2003 |
| Docket Number | Docket No. 02-4192. |
| Citation | 339 F.3d 91 |
| Parties | Roger G. Gousse, Petitioner, v. John Ashcroft, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael Boyle, North Haven, CT (Michael C. Holley, Nashville, TN, of counsel), for Petitioner.
Megan L. Brackney, Assistant United States Attorney, for James B. Comey, United States Attorney for the Southern District of New York (Kathy S. Marks, Beth E. Goldman, Assistant United States Attorneys, of counsel), New York, NY, for Respondent.
Before: KEARSE, JACOBS, and CABRANES, Circuit Judges.
Roger G. Gousse petitions for review of a decision by the Board of Immigration Appeals ("BIA") ordering Gousse removed to Haiti on the ground that his Connecticut Alford plea to the offense classified as "sale of hallucinogen/narcotic" under Conn. Gen.Stat. § 21a-277(a) amounted to a conviction for "illicit trafficking in a controlled substance" under 8 U.S.C. § 1101(a)(43)(B). Gousse argues that the record does not identify which "hallucinogen/narcotic" he sold and that Conn. Gen. Stat. § 21a-277(a) may have proscribed certain substances that were not "controlled substances" under federal law. The immigration judge ("IJ") terminated the removal proceedings on that ground, but the BIA reversed, and ordered Gousse removed, on the ground that the specific drug underlying Gousse's Connecticut conviction was heroin (which is of course a "controlled substance" under federal law).
We conclude that Gousse's conviction under Conn. Gen.Stat. § 21a-277(a) necessarily constituted a conviction for "illicit trafficking in a controlled substance" under 8 U.S.C. § 1101(a)(43)(B), which is a removable "aggravated felony" under the Immigration and Nationality Act ("INA"). We therefore dismiss the petition for lack of jurisdiction.
Gousse immigrated from Haiti as a lawful permanent resident in 1978 at age 14. On October 9, 1997, in the Superior Court of the State of Connecticut in Norwalk, Gousse pled guilty pursuant to a plea agreement to one count of violating Conn. Gen.Stat. § 21a-277(a). The record is cursory in important respects because the plea agreement allowed Gousse to enter an Alford plea. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) ().
At the plea hearing on October 9, 1997, the prosecutor outlined the drug transaction:
The State will indicate the following. On April the 17th of 1997[a] member of the Special Services conducted an undercover narcotics operation in Roodner Court. The defendant was in there, he was observed with another individual transacting narcotics. The undercover went up to this other individual. Told him that he needed a bag, which is a street term for heroin. This individual then went to another individual who is known as the Cisco Kid. Cisco Kid was later determined to be this defendant here who was identified by the police officers. So it went from Mims to Cisco Kid to the undercover. Consistent with Alford, the plea was accepted even though Gousse denied the facts stated by the prosecutor. Sentencing was set for November 4, 1997, but Gousse failed to appear. Gousse ultimately materialized in court (and was additionally charged for the failure to appear) on May 11, 1998, at which point a public defender was appointed. Gousse was sentenced for both crimes on August 13, 1998, and received three to six years' imprisonment for the section 21a-277(a) conviction. The record of conviction lists the specific violation of section 21a-277(a) as "sale of hallucinogen/narcotic."1 The conviction was entered on August 13, 1998.
The INA provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). An "aggravated felony" is defined to include "illicit trafficking in a controlled substance (as defined in [21 U.S.C. § 802]), including a drug trafficking crime." Id. § 1101(a)(43)(B). The Controlled Substances Act ("CSA"), 21 U.S.C. § 802, defines "controlled substance" as "a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of Part B of this subchapter." Id. § 802(6). The term "aggravated felony" applies to the offenses defined as such under federal law, even if the actual conviction is for a violation of state law. See 8 U.S.C. § 1101(a)(43).
Section 21a-277(a), the statute under which Gousse was convicted, provides:
Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned....
Conn. Gen.Stat. § 21a-277(a) (emphases added).
At his removal hearing before the IJ, Gousse conceded that he had been convicted of selling narcotics in violation of section 21a-277(a), but denied that heroin was the narcotic sold to the undercover officer. When the IJ expressed doubt that the prosecutor's statement at Gousse's plea proceeding was a sufficient basis for finding that the substance was heroin, the INS moved for an opportunity to present a police report that would allegedly impeach Gousse's sworn denial that the substance was heroin. The IJ denied the motion, and terminated the proceedings on the ground that the INS failed to meet its burden of showing removability by clear and convincing evidence.2
The INS appealed the IJ's decision to the BIA, arguing that: (1) Gousse's state conviction necessarily constituted "illicit trafficking in a controlled substance" under the INA because the Connecticut definition of "narcotic substance" is no broader than the federal definition of "controlled substance" in the CSA; and (2) the evidence presented to the IJ indicated that the narcotic substance in question was in fact heroin (which is a "controlled substance" under the CSA). On January 11, 2002, the BIA reversed the IJ, evidently accepting the argument that a conviction under section 21a-277(a) necessarily establishes a conviction for "illicit trafficking in a controlled substance," and is thus an "aggravated felony."
On May 2, 2002, the BIA granted a motion for reconsideration, vacated its decision, but again sustained the INS's appeal, this time on the ground that the INS had established that the substance underlying Gousse's conviction was in fact heroin, and ordered Gousse removed to Haiti.
This petition for review followed.
Under the INA, this Court lacks jurisdiction to review Gousse's removal order if he is removable by reason of having committed a criminal offense that constitutes an "aggravated felony." See 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A)(iii); Jobson v. Ashcroft, 326 F.3d 367, 371 (2d Cir.2003). "However, this court retains jurisdiction to review the underlying jurisdictional fact at issue — namely, whether [Gousse] has been convicted of an aggravated felony." Ming Lam Sui v. INS, 250 F.3d 105, 110 (2d Cir.2001). Therefore, if we determine that Gousse's conviction constitutes an aggravated felony, our jurisdiction immediately vanishes and the petition for review must be dismissed for lack of jurisdiction. See Jobson, 326 F.3d at 371. The conclusion that the conviction is an aggravated felony may rest on a ground other than the ground cited by the BIA. See Lukowski v. INS, 279 F.3d 644, 646 (8th Cir.2002) (); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.1997).
Our review of the BIA's interpretation of the federal and state criminal statutes is de novo, Jobson, 326 F.3d at 371; Dalton v. Ashcroft, 257 F.3d 200, 203-04 (2d Cir.2001), and we decide this appeal on the ground that Gousse's section 21a-277(a) conviction for the "sale of hallucinogen/narcotic" is necessarily a conviction for "illegal trafficking in a controlled substance" under 8 U.S.C. § 1101(a)(43)(B).
Ordinarily, the record of conviction in a drug case supplies ample evidence of the act committed (e.g., "selling" or "possessing") and of the substance involved. When, as here, an Alford plea is entered and the defendant denies the facts recited by the prosecutor, it becomes more complicated to ascertain whether the conviction constitutes an aggravated felony.
The problem is obviated here by our application of the "categorical approach," an analysis that asks whether the statutory definition of the offense of conviction is any broader than an offense defined as an "aggravated felony" under federal law. See Jobson, 326 F.3d at 371-72 (); Dalton, 257 F.3d at 204 (same); Ming Lam Sui, 250 F.3d at 109, 116-18 (); Michel v. INS, 206 F.3d 253, 263 (2d Cir.2000) (). Unless the offense of conviction is broader, the petitioner has committed an "aggravated felony"...
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