In re Elgendi
| Decision Date | 31 October 2002 |
| Docket Number | Interim Decision Number 3482,File A24 998 596 |
| Citation | 23 I&N Dec. 515 |
| Parties | In re Nabil Ahmed ELGENDI, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated November 30, 2001, an Immigration Judge found the respondent removable as an alien convicted of an aggravated felony on the basis of his two state convictions for marijuana possession.1 Therefore, the Immigration Judge denied the respondent's application for cancellation of removal pursuant to section 240A(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(3) (2000). The respondent has appealed from that decision, arguing that the Immigration Judge erred as a matter of law in finding that he had been convicted of an aggravated felony. The appeal will be sustained, and the record will be remanded to the Immigration Judge for further proceedings.
The respondent is a native and citizen of Egypt and a lawful permanent resident of the United States. He has two convictions in the Criminal Court of New York County, New York, for the offense of criminal possession of marijuana in the fifth degree, a violation of section 221.10 of the New York Penal Law: (1) on August 10, 2000, for which he was sentenced to time served and a 6-month suspension of his driver's license; and (2) on November 11, 2000, for which he received a conditional discharge, as well as a sentence of 5 days of community service and a further 6-month suspension of his driver's license. His offenses are classified as class B misdemeanors under New York law, and they are therefore punishable by a maximum term of imprisonment of 3 months. N.Y. Penal Law § 70.15 (McKinney 2000).
The issue in this case is whether the respondent's offenses of simple possession of marijuana, which are classified as misdemeanors under applicable state law, constitute "drug trafficking crimes" within the meaning of 18 U.S.C. § 924(c)(2) (2000), such that they may be considered aggravated felonies under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (2000).2 Disposition of this issue is guided by our recent precedent decision in Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), where we held that the determination whether state drug offenses constitute "drug trafficking crimes" must be made by reference to pertinent authority from the relevant circuit court of appeals. See also Matter of Santos-Lopez, 23 I&N Dec. 419 (BIA 2002) (). Accordingly, we turn to an examination of the pertinent law of the Second Circuit, in whose jurisdiction this case arises.
The Second Circuit has adopted a "context-sensitive" or "bifurcated" approach to interpretation of 18 U.S.C. § 924(c)(2). United States v. Pornes-Garcia, 171 F.3d 142, 147 (2d Cir. 1999). In criminal cases involving aliens charged with illegal reentry to the United States after being deported subsequent to an aggravated felony conviction, the Second Circuit has held that a state drug offense qualifies as a "drug trafficking crime" if the convicting jurisdiction classifies the offense as a felony. Id. (); United States v. Polanco, 29 F.3d 35 (2d Cir. 1994) (). These decisions are consistent with the weight of authority from other circuits that have interpreted 18 U.S.C. § 924(c)(2). See United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert. denied, 122 S. Ct. 305 (2001); United States v. Simon, 168 F.3d 1271 (11th Cir. 1999); United States v. Briones-Mata, 116 F.3d 308 (8th Cir. 1997); United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996); United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. 1996); cf. also United States v. Arellano-Torres, 303 F.3d 1173 (9th Cir. 2002) ().
In cases arising in the civil immigration context, by contrast, the Second Circuit has acquiesced in the interpretation of 18 U.S.C. § 924(c)(2) previously advanced by this Board in Matter of L---- G----, 21 I&N Dec. 89 (BIA 1995), where we held that state drug offenses may be considered "drug trafficking crimes," and therefore aggravated felonies, only if they are "analogous" to offenses punishable as felonies under the three federal drug laws referenced in 18 U.S.C. § 924(c)(2). Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996); see also Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002).3 As the Second Circuit emphasized in Aguirre and subsequent cases, however, its decision to acquiesce in Matter of L----G---- was motivated by neither administrative deference nor agreement with the analytical underpinnings of the Board's interpretation of 18 U.S.C. § 924(c)(2), but rather by prudential concerns for "nationwide uniformity" in the application of the federal immigration laws and for safeguarding this country's commitment to providing asylum. Sutherland v. Reno, 228 F.3d 171, 174 (2d Cir. 2000); United States v. Pornes-Garcia, supra, at 146-47; Aguirre v. INS, supra, at 317.
This Board, motivated by the same desire for uniformity that animated the Second Circuit in Aguirre, previously endorsed the "bifurcated" approach to interpretation of 18 U.S.C. § 924(c)(2). See Matter of K---- V---- D----, 22 I&N Dec. 1163 (BIA 1999) (). However, in Matter of Yanez, supra, we acknowledged our obligation to withdraw from that approach in light of emergent case law from other circuits holding, or strongly suggesting, that the meaning of 18 U.S.C. § 924(c)(2) must be identical in civil immigration cases and criminal cases. See United States v. Hernandez-Avalos, supra, at 509-10 (); United States v. Ibarra-Galindo, 206 F.3d 1337, 1340 n.2 (9th Cir. 2000) (), cert. denied, 531 U.S. 1102 (2001); Ruiz-Romero v. Reno, 205 F.3d 837, 839-40 (5th Cir. 2000).
Thus, although uniformity in the application of the federal immigration laws remains a salutary goal, divisions among the circuits—regarding both the proper interpretation of 18 U.S.C. § 924(c)(2) and the permissibility of the "bifurcated" approach—have made such uniformity unattainable at the administrative level. As Matter of Yanez, supra, makes clear, short of congressional action or a ruling from the Supreme Court, whatever degree of uniformity that can be achieved in this context must hereafter be provided by the circuits themselves. Hence, in accordance with the principle of deference to circuit authority embraced by Matter of Yanez, our present goal is to determine which of the alternative interpretations of 18 U.S.C. § 924(c)(2) is deemed correct by the Second Circuit as a pure matter of statutory construction.
After thoroughly reviewing the relevant case law, we are persuaded that the interpretation of 18 U.S.C. § 924(c)(2) adopted and applied in Pornes-Garcia and Polanco is the favored construction in the Second Circuit. The fact that the Second Circuit adopted this interpretation in its first reported case on the question—Polanco—suggests to us that the interpretation was consistent with the Second Circuit's intuitive reading of the statute, divorced from the uniformity considerations that would later prompt it to acquiesce in Matter of L---- G---- in the civil immigration context. We also find it significant that the Second Circuit has chosen to retain its original interpretation, even after Aguirre demonstrated that an alternative interpretation was available. See United States v. Pornes-Garcia, supra. Further, as previously noted, the Second Circuit's approach in Polanco and Pornes-Garcia has since been adopted as a matter of statutory construction by...
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