In re Carachuri-Rosendo

• Decision Date: 13 December 2007
• Docket Number: Interim Decision No. 3592.,File A44 075 911.
• Citation: 24 I&N Dec. 382
• Court: U.S. DOJ Board of Immigration Appeals
• Parties: In re Jose Angel CARACHURI-ROSENDO, Respondent.

24 I&N Dec. 382

In re Jose Angel CARACHURI-ROSENDO, Respondent.

Interim Decision No. 3592.

File A44 075 911 - Houston.

Board of Immigration Appeals.

Decided December 13, 2007.

(1) Decisional authority from the Supreme Court and the controlling Federal circuit court of appeals is determinative of whether a State drug offense constitutes an "aggravated felony" under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), by virtue of its correspondence to the Federal felony offense of "recidivist possession," as defined by 21 U.S.C. § 844(a) (2000). Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.

(2) Controlling precedent of the United States Court of Appeals for the Fifth Circuit dictates that the respondent's Texas conviction for alprazolam possession qualifies as an "aggravated felony" conviction by virtue of the fact that the underlying alprazolam possession offense was committed after the respondent's prior State "conviction" for a "drug, narcotic, or chemical offense" became "final" within the meaning of 21 U.S.C. § 844(a).

(3) Absent controlling authority regarding the "recidivist possession" issue, an alien's State conviction for simple possession of a controlled substance will not be considered an aggravated felony conviction on the basis of recidivism unless the alien's status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense.

FOR RESPONDENT: Thomas F. Perkinson, Esquire; Anne Chandler, Esquire, Houston, Texas.

AMICUS CURIAE:¹ Alina Das, Esquire, Brooklyn, New York.

FOR THE DEPARTMENT OF HOMELAND SECURITY: Rachel Silver, Appellate Counsel; Matthew Downer, Appellate Counsel.

BEFORE: Board En Banc: OSUNA, Acting Chairman; HOLMES, COLE, FILPPU, GRANT, and MILLER, Board Members. Concurring Opinions: PAULEY, Board Member, joined by HURWITZ, Acting Vice Chairman; HESS, Board Member.

FILPPU, Board Member:

The respondent, a native and citizen of Mexico, appeals from an Immigration Judge's December 19, 2006, decision pretermitting his application for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2000). The Department of Homeland Security ("DHS") opposes the appeal. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent has two relevant convictions in Texas: (1) on October 28, 2004, for possessing 2 ounces or less of marijuana in violation of section 481.121 of the Texas Health & Safety Code; and (2) on November 15, 2005, for possessing less than 28 grams of alprazolam in violation of section 481.117(b) of the Texas Health & Safety Code. There is no dispute that these convictions make the respondent removable as an alien convicted of a violation of State law relating to a controlled substance. Section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2000). Thus, the only issue on appeal is whether the respondent qualifies for cancellation of removal.

The Immigration Judge found the respondent ineligible for cancellation of removal because he failed to demonstrate that he "has not been convicted of any aggravated felony," as required by section 240A(a)(3) of the Act. Specifically, the Immigration Judge determined that the respondent's 2005 conviction for alprazolam possession was for an "aggravated felony" under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (2000), because it corresponded to the Federal felony of "recidivist possession" when considered in conjunction with his prior conviction for marijuana possession.

On appeal, the respondent challenges the Immigration Judge's determination that he stands convicted of an aggravated felony. The respondent and the DHS have each filed several appellate briefs, and an amicus curiae brief has been filed on the respondent's behalf. A three-member panel of the Board heard oral argument on July 12, 2007.

II. LEGAL BACKGROUND

Section 101(a)(43) of the Act defines the term "aggravated felony" to include a "drug trafficking crime" as defined in 18 U.S.C. § 924(c) (2000), "whether in violation of Federal or State law." In turn, 18 U.S.C. § 924(c)(2) defines "drug trafficking crime" to mean "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.)." The United States Supreme Court recently held that "a state offense constitutes a `felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable as a felony under that federal law." Lopez v. Gonzales, 127 S. Ct. 625, 633 (2006). Thus, for a State drug offense to qualify as a "drug trafficking crime" and, by extension, an aggravated felony, it must correspond to an offense that carries a maximum term of imprisonment exceeding 1 year under the Controlled Substances Act ("CSA"). Id. at 631 & n.7.

Most simple possession offenses proscribe conduct punishable as a Federal misdemeanor. However, as the Supreme Court recognized in a footnote in Lopez v. Gonzales, supra, the CSA does punish a few simple possession offenses with terms of imprisonment of more than 1 year, making them Federal felonies. Id. at 630 n.6. Specifically, the Court indicated that "[t]hose state possession crimes that correspond to felony violations of [the CSA], such as . . . recidivist possession, clearly fall within the [aggravated felony definition], regardless of whether these federal possession felonies or their state counterparts constitute `illicit trafficking in a controlled substance' or `drug trafficking' as those terms are used in ordinary speech." Id. (citation omitted).

The statutory basis for the Supreme Court's discussion of "recidivist possession" as a Federal felony is provided by 21 U.S.C. § 844(a) (2000):

It shall be unlawful for any person knowingly or intentionally to possess a controlled substance . . . . Any person who . . . commits such offense after . . . a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, has become final, . . . shall be sentenced to a term of imprisonment for . . . not more than 2 years . . . .

The language of 21 U.S.C. § 844(a) makes clear that a drug possession offense can be punished as "recidivist possession" only if it was committed after a prior drug conviction became final. Although the respondent does not dispute that his 2004 conviction for marijuana possession had become "final" prior to his commission of alprazolam possession in 2005, he emphasizes that a Federal judge has no authority to impose a felony sentence on a recidivist under the CSA unless, prior to trial or plea, the prosecutor filed and served an "enhancement information" pursuant to 21 U.S.C. § 851(a) (2000), the purpose of which is to provide the defendant with notice and an opportunity to review allegations of previous convictions for accuracy, to contest the use of such convictions, to create a trial strategy, and to evaluate the consequences of a jury verdict. United States v. Arnold, 467 F.3d 880, 886-87 (5th Cir. 2006). Once such an information is filed, the defendant is entitled to a colloquy before the judge in which he must affirm or deny the existence or validity of the first conviction. 21 U.S.C. § 851(b).² If the defendant denies the facts upon which a recidivism charge is based, the burden is on the prosecution to prove those facts to the judge beyond a reasonable doubt. 21 U.S.C. § 851(c)(1). Furthermore, in some cases the defendant is allowed to challenge the validity of the first conviction without the necessity of lodging a formal collateral challenge in the convicting State. 21 U.S.C. §§ 851(c)(2), (e).

III. ISSUE

The issue is whether the respondent has been convicted of an offense that "proscribes conduct punishable as a felony" under the CSA within the meaning of Lopez v. Gonzales, supra, at 633, such that it may be considered a "drug trafficking crime" and, by extension, an "aggravated felony."

IV. DEFERENCE TO CIRCUIT LAW

Whether a particular State possession offense corresponds to the Federal felony of "recidivist possession" is a complicated question that involves the interplay of Federal and State criminal statutes. Our interpretation of criminal statutes is not entitled to deference; instead, we owe deference to the meaning of Federal criminal law as determined by the Supreme Court and the Federal circuit courts of appeals. Matter of Yanez, 23 I&N Dec. 390, 396-97 (BIA 2002). Moreover, this imperative of deference applies without regard to whether the court construed the statute in the immigration context or the criminal sentencing context, as long as the identical provision was at issue. Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (explaining that, if a statute has criminal applications, "the rule of lenity applies" to the Court's interpretation of the statute even in immigration cases "[b]ecause we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context").

At present, seven circuits have issued precedents deciding whether, and under what circumstances, a State offense of simple possession of a controlled substance qualifies as an aggravated felony based on its correspondence to the Federal felony of "recidivist possession." See United States v. Pacheco-Diaz, 506 F.3d 545, 548-49 (7th Cir. 2007); Smith v. Gonzales, 468 F.3d 272, 276-77 (5th Cir. 2006); Berhe v. Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006); United States v. Palacios-Suarez, 418 F.3d 692, 699-700 (6th Cir. 2005); United States v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005), cert. denied, 546 U.S. 1137 (2006); Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004); United States v. Simpson, 319 F.3d 81, 85-86 (2d Cir. 2002); Gerbier v. Holmes, 280 F.3d 297, 315-18 (3d Cir. 2002); Steele v. Blackman, 236 F.3d 130, 137-38 (3d Cir. 2001). These decisions do not reflect a consensus...