Hylton v. Sessions, 17-1567-ag

• Citation: 897 F.3d 57
• Decision Date: 20 July 2018
• Docket Number: No. 17-1567-ag,August Term 2017,17-1567-ag
• Parties: Antoine L. HYLTON, a/k/a Antoine Hylton, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

897 F.3d 57

Antoine L. HYLTON, a/k/a Antoine Hylton, Petitioner,

v.Jefferson B. SESSIONS III, United States Attorney General, Respondent.

No. 17-1567-ag

August Term 2017

United States Court of Appeals, Second Circuit.

Argued: June 27, 2018

Decided: July 20, 2018

Gerardo Romo, Kyle Barron, Washington Square Legal Services, Inc., New York, NY (Nancy Morawetz, Washington Square Legal Services, Inc., New York, NY; Su Yon Yi, Queens Law Associates, Public Defenders, Forest Hills, NY, on the brief), for Petitioner.

Alexander J. Lutz, Trial Attorney, Office of Immigration Litigation, for Chad A. Readler, Acting Assistant Attorney General (Anthony C. Payne, Assistant Director, Office of Immigration Litigation, on the brief), Washington, D.C., for Respondent.

Before: Jacobs, Raggi, and Hall, Circuit Judges:

Dennis Jacobs, Circuit Judge:

Antoine Hylton, a Jamaican national, petitions for review of the May 9, 2017 order of the Board of Immigration Appeals ("BIA"), which found him ineligible for cancellation of removal because his prior state conviction for sale of marijuana in the third degree constituted an aggravated felony under the Immigration and Nationality Act ("INA"). The single issue on appeal is whether the minimum offense conduct under Hylton’s statute of conviction, New York Penal Law ("NYPL") § 221.45, is necessarily punishable as a federal felony by the Controlled Substances Act ("CSA"). See Martinez v. Mukasey, 551 F.3d 113, 118-19 (2d Cir. 2008).

"If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana," the offense is punishable as a federal misdemeanor. Moncrieffe v. Holder, 569 U.S. 184, 206, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (referencing 21 U.S.C. § 841(b)(4), which states that notwithstanding federal law making trafficking in any quantity of marijuana a felony, "distributing a small amount of mari[j]uana for no remuneration shall be treated" as a misdemeanor). The CSA does not define "a small amount." We now hold that an ounce, or roughly 30 grams (28.35 in point of fact), is a "small amount" of marijuana within the meaning of 21 U.S.C. § 841(b)(4). Our ruling is in keeping with the decisions of our sister circuits, the commentary of the BIA, the structure of the relevant federal statutes, and the principle of personal use. Because NYPL § 221.45 explicitly extends to the distribution of less than an ounce of marijuana without remuneration, it is punishable as a federal misdemeanor. See Moncrieffe, 569 U.S. at 206, 133 S.Ct. 1678 ; Castro Rodriguez, 25 I. & N. Dec. 698, 703 (2012). The BIA decision rested on the observation that there was no "realistic probability" that New York would apply NYPL § 221.45 to conduct outside the generic federal felony. That was error because the state statute on its face punishes conduct classified as a federal misdemeanor.

Hylton’s crime of conviction is therefore not categorically an aggravated felony. Hylton is removable, but not precluded from equitable relief at the discretion of the immigration judge ("IJ"). The IJ weighed equities and granted cancellation of removal, a ruling that the BIA did not reach, having found ineligibility for that relief. We GRANT the petition, VACATE the opinion of the BIA, and REMAND for the BIA to review the IJ’s grant of cancellation of removal.

I

Antoine Hylton was admitted to the United States as a lawful permanent resident in 1989. He is married to a U.S. Citizen and has two U.S. citizen brothers, a U.S. citizen mother, and three U.S. citizen-children whom he supports. In 2011, Hylton was convicted of criminal possession of marijuana in the third degree and criminal sale of marijuana in the third degree. See NYPL §§ 221.20, 221.45. He was detained by the Department of Homeland Security ("DHS") in 2013 and charged as removable for having been convicted of an aggravated felony drug trafficking offense. See 8 U.S.C. § 1227(a)(2)(A)(iii).

When Hylton appeared before the IJ, he conceded removability, but challenged the aggravated felony charge in order to become eligible for cancellation of removal. The IJ ruled as a matter of law that Hylton was not an aggravated felon and made factual findings that Hylton was entitled to relief from deportation. Specifically, the IJ conducted an analysis under the categorical approach, concluded that the minimum conduct criminalized under NYPL § 221.45 includes the non-remunerative transfer of 30 grams or less of marijuana, and ruled accordingly that this conduct fell outside the class of aggravated felony that constitutes "illicit trafficking in a controlled substance." 8 U.S.C. § 1101(a)(43)(B). The IJ then weighed the discretionary factors to determine whether Hylton warranted equitable relief. In view of Hylton’s lengthy residence and significant family ties, the IJ concluded that the "positives outweigh[ed] the negatives" and granted cancellation of removal. CAR 121.

The Government appealed to the BIA. Reviewing the IJ’s aggravated felony ruling de novo , the BIA held that Hylton’s conviction "does not fall within the misdemeanor exception contained at 21 U.S.C. § 841(b)(4)" and is therefore an aggravated felony. CAR 5. Instead of conducting an analysis under the categorical approach, the BIA reasoned that "there is not a realistic probability that New York would apply NYPL § 221.45 to conduct that falls outside the generic definition of a felony under the CSA." Id. at 6. Because the BIA ordered Hylton removed as an aggravated felon, it did not reach the IJ’s grant of cancellation of removal.

Hylton timely petitioned this Court for review. This Court’s limited jurisdiction over Hylton’s petition of the BIA order is to review "constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(D). "Whether a conviction qualifies as an aggravated felony is a question of law, which we review de novo ." Martinez, 551 F.3d at 117 (internal citation omitted).

II

"When the Government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA." Moncrieffe, 569 U.S. at 190, 133 S.Ct. 1678 ; see Obeya v. Sessions, 884 F.3d 442, 447 n.4 (2d Cir. 2018). "Under the categorical approach, courts identify the minimum criminal conduct necessary for conviction under a particular statute" by "looking only to the statutory definitions—i.e., the elements—of the offense, and not to the particular underlying facts." United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018) (quoting United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006) and Descamps v. United States, 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (brackets omitted) ). "Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction ‘rested upon nothing more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense." Moncrieffe, 569 U.S. at 190-91, 133 S.Ct. 1678 (quoting Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ). "The very basis of the categorical approach is that the sole ground for determining whether an immigrant was convicted of an aggravated felony is the minimum criminal conduct necessary to sustain a conviction under a given statute." Martinez, 551 F.3d at 121 (citing Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001) ) (emphasis in original).

The aggravated felony at issue is illicit trafficking in a controlled substance. See 8 U.S.C. § 1101(a)(43)(B) ; 18 U.S.C. §§ 924(c)(2), 3559(a)(5). When the Government classifies a noncitizen as an aggravated felon on the basis of a drug trafficking offense, the categorical inquiry is "whether the record of conviction of the predicate offense necessarily establishes conduct that the CSA, on its own terms, makes punishable as a felony." Moncrieffe, 569 U.S. at 197-98, 133 S.Ct. 1678 (citing Carachuri-Rosendo v. Holder, 560 U.S. 563, 581, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010) ); see Lopez v. Gonzales, 549 U.S. 47, 60, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) ("a state offense constitutes a felony punishable under the [CSA] only if it proscribes conduct punishable as a felony under that federal law.") (internal quotation marks omitted); Harbin v. Sessions, 860 F.3d 58, 68 (2d Cir. 2017) ("An alien’s actual conduct is irrelevant to the inquiry, as the adjudicator must presume that the conviction rested upon nothing more than the least of the acts criminalized under the statute.").

"We begin with the relevant conduct criminalized by the CSA." Moncrieffe, 569 U.S. at 192, 133 S.Ct. 1678. Marijuana distribution is a CSA offense that can be either a felony (see 21 U.S.C. §§ 841(a), 841(b)(1) ) or a misdemeanor (see 21 U.S.C. § 841(b)(4) ). "[A]ny person who violates" the CSA "by distributing a small amount of marijuana for no remuneration" has committed a misdemeanor. 21 U.S.C. § 841(b)(4). As we have already observed, "[i]f a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA." Moncrieffe, 569 U.S. at 206, 133 S.Ct. 1678 ; see, e.g., Guevara-Solorzano v. Sessions, 891 F.3d 125, 132 (4th Cir. 2018).

The CSA does not define a "small amount" of marijuana. Still, several circuits have held that 30 grams is a "small amount" within the meaning of 21 U.S.C. § 841(b)(4).¹ See Ming Wei Chen v. Sessions, 864 F.3d 536, 538, 540 (7th Cir. 2017) (holding that a "shade above 30 grams" would constitute a "small amount" of marijuana, and consequently, noncitizen petitioner was not an aggravated felon because his conviction, which proscribed the nonremunerative distribution of any amount greater than 30...