In re K-V-D-
| Decision Date | 10 December 1999 |
| Docket Number | Interim Decision No. 3422. |
| Citation | 22 I&N Dec. 1163 |
| Parties | In re K-V-D-, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated October 13, 1998, the Immigration Judge found the respondent subject to removal from the United States pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), as an alien convicted of an aggravated felony as defined in section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (1994), and pursuant to section 237(a)(2)(B)(i) of the Act, as an alien convicted of a controlled substance violation. On the basis of these findings, the Immigration Judge also found the respondent ineligible for any form of relief from removal. The respondent filed a timely appeal.1
The determination whether the respondent has been convicted of an aggravated felony turns on the applicability of the Board's decision in Matter of L-G-, 21 I&N Dec. 89 (BIA 1995). In Matter of L-G-, we construed the phrase "drug trafficking crime (as defined in section 924(c)(2) of title 18, United States Code)" in section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (Supp. V 1993), to require that, for immigration purposes, a state felony conviction involving a controlled substance violation must be for a crime that would be punishable as a felony under federal law.
In concluding that the respondent's state felony conviction for the crime of simple possession of a controlled substance constituted an aggravated felony for immigration purposes and rendered the respondent removable as charged, the Immigration Judge did not follow our precedent in Matter of L-G-, supra. Instead, he relied on the decisions of the United States Court of Appeals for the Fifth Circuit in United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), and United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. 1997). In those cases, the Fifth Circuit interpreted the language in section 101(a)(43) of the Act for purposes of criminal sentence enhancement under the United States Sentencing Guidelines ("U.S.S.G.")2 to cover any state felony that is punishable under the Controlled Substances Act, 21 U.S.C. § 801 (1994).
Upon review, we conclude that the Fifth Circuit's decision in United States v. Hinojosa-Lopez, supra, relating to criminal sentence enhancement, does not control the determination whether the respondent has been convicted of an aggravated felony for immigration purposes. The parties agree that the decision does not address the interpretation of section 101(a)(43)(B) of the Act for immigration purposes and is not dispositive of the issue before us. The Second Circuit, which is the only federal circuit court of appeals to interpret the terms of section 101(a)(43)(B) of the Act, both for sentence enhancement purposes and for immigration law purposes, also agrees that different interpretations of this provision are appropriate in each context. See Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996) (); see also United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir.) (), cert. denied, 120 S. Ct. 191 (1999).
Accordingly, we hold that the rule in Matter of L-G-, supra, governs the disposition of the respondent's appeal. We find that the respondent's conviction for the crime of simple possession of a controlled substance, which would not be punishable as a felony under federal law, is not an aggravated felony conviction. Therefore, the respondent is not subject to removal or statutorily ineligible for relief from removal on that basis. The respondent's appeal will be sustained and the record will be remanded to the Immigration Judge for further proceedings.
The principal issue before us is whether the respondent's state felony conviction for the crime of possession of a controlled substance, which would be punishable only as a misdemeanor under federal law, is a conviction for a "drug trafficking crime," constituting an "aggravated felony" for immigration purposes.3 To resolve this issue, we must determine the effect of the Fifth Circuit's decision in United States v. Hinojosa-Lopez, supra— which holds that a Texas felony conviction for aggravated possession of marijuana is an aggravated felony for criminal sentence enhancement purposes—on our precedent decision in Matter of L-G-, supra.
The respondent is a native and citizen of Vietnam, who was admitted to the United States in 1987 as a refugee. He has been a lawful permanent resident of the United States since September 22, 1987. On August 13, 1992, he pled guilty to the charge of simple possession of a controlled substance, to wit, less than 28 grams of cocaine, in violation of section 481.115 of the Texas Health and Safety Code Annotated. He was placed on probation, and adjudication was deferred.
On December 2, 1997, the respondent was sentenced to serve a term of imprisonment of 5 years based on his failure to report to his probation officer, a violation that nullified the deferred adjudication. According to the amount of controlled substance involved, the respondent's conviction is classified as a felony of the second degree under Texas law. See Tex. Health & Safety Code Ann. § 481.115(d) (West 1997).
The Immigration and Naturalization Service issued a Notice to Appear (Form I-862), in which it charged the respondent with being removable under section 237(a)(2)(B)(i) of the Act, as an alien who has been convicted of a violation of a law relating to a controlled substance. The Service also charged that the respondent was removable under section 237(a)(2)(A)(iii) of the Act, as an alien who had been convicted of an aggravated felony after his admission to the United States. On August 24, 1998, the Service filed the Notice to Appear with the Immigration Court.
In the removal proceedings that followed, the Immigration Judge concluded that the crime for which the respondent was convicted was an aggravated felony within the meaning of section 101(a)(43)(B) of the Act. Relying on the reasoning of the Fifth Circuit in United States v. Hinojosa-Lopez, supra, he found that the respondent was convicted of a crime analogous to a "drug trafficking crime (as described in section 924(c)(2) of title 18)," and that the conviction was for an aggravated felony because the crime was classified as a felony under state law. Based on the fact that the respondent received a sentence to a 5-year term of imprisonment for his conviction, the Immigration Judge concluded that he was ineligible for any forms of relief from removal. See sections 208(b)(2)(B)(i), 240A(a)(3), 241(b)(3)(B) of the Act, 8 U.S.C. §§ 1158(b)(2)(B)(i), 1229b(a)(3), 1231(b)(3)(B) (Supp. II 1996).
In his Notice of Appeal, the respondent challenged the Immigration Judge's finding that he was ineligible for relief from removal and requested an opportunity for oral argument before the Board. On September 10, 1999, a seven-member panel representing the full en banc Board convened and held oral argument. The respondent was represented by pro bono counsel obtained through the American Immigration Lawyers Association. The Service was represented by counsel from the Office of Appellate Counsel. In response to our request for supplementary briefing, the Board received briefs from both parties prior to oral argument.
At oral argument, both parties agreed that the Fifth Circuit's decision in United States v. Hinojosa-Lopez did not control the Board's disposition of the case. Nevertheless, the parties dispute the proper resolution of the issue presented in this case. In essence, the respondent argued that we should uphold our decision in Matter of L-G- in deciding his appeal. By contrast, the Service argued that we should reconsider and overturn our decision in Matter of L-G-.
In his supplementary brief and at oral argument, the respondent pointed out that the decision of the Fifth Circuit in United States v. Hinojosa-Lopez addressed the language appearing in both application note 7 of the sentencing guidelines and section 101(a)(43) of the Act only in relation to its meaning for purposes of implementing the sentencing guidelines that apply to federal criminal cases. The respondent emphasized that the court did not examine or interpret that statutory language for immigration purposes. The respondent urged us to recognize the rule of construction that, even when used in the same statute, a...
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