In re Thomas

• Decision Date: 13 December 2007
• Docket Number: Interim Decision No. 3593.,File 44 134 844.
• Parties: In re Jharfvan Jose THOMAS, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

24 I&N Dec. 416

In re Jharfvan Jose THOMAS, Respondent.

Interim Decision No. 3593.

File 44 134 844 - Miami.

Board of Immigration Appeals.

Decided December 13, 2007.

The respondent's 2003 Florida offense involving the simple possession of marijuana does not qualify as an "aggravated felony" by virtue of its correspondence to the Federal felony of "recidivist possession," even though it was committed after a prior "conviction" for a "drug, narcotic, or chemical offense" became "final" within the meaning of 21 U.S.C. § 844(a) (2000), because the respondent's conviction for that 2003 offense did not arise from a State proceeding in which his status as a recidivist drug offender was either admitted or determined by a judge or jury. Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), followed.

FOR RESPONDENT: Jose Debs-Elias, Esquire, Jacksonville, Florida.

FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael A. Mansfield, Assistant Chief Counsel.

BEFORE: Board Panel: OSUNA, Acting Chairman; and FILPPU, Board Member. Concurring and Dissenting Opinion: PAULEY, Board Member.

FILPPU, Board Member:

The respondent appeals from an Immigration Judge's September 5, 2007, 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), and ordering him removed from the United States as an alien convicted of an aggravated felony and a controlled substance violation under sections 237(a)(2)(A)(iii) and (B)(i) of the Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i) (2000), respectively. The Department of Homeland Security ("DHS") opposes the appeal. The appeal will be sustained in part and the record will be remanded to the Immigration Judge for further proceedings.

I. BACKGROUND

The respondent is a native and citizen of Jamaica and a lawful permanent resident of the United States. On July 8, 2002, the respondent pled guilty in the Circuit Court for Duval County, Florida, to possessing cocaine in violation of section 893.13(6)(a) of the Florida Statutes. Upon entry of the respondent's plea, the sentencing judge withheld adjudication of his guilt and placed him on probation for 60 days. On August 28, 2003, the respondent appeared once again before the Duval County Circuit Court and entered a plea of nolo contendere to a charge that he possessed less than 20 grams of marijuana in violation of section 893.13(6)(b) of the Florida Statutes, based on an offense committed that same day. The trial court adjudged him guilty of that offense and ordered him to pay fines.

On the basis of the aforementioned convictions, the Immigration Judge determined that the respondent was deportable as charged and 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 2003 conviction for marijuana possession was an "aggravated felony" conviction under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (2000), because it was predicated on an offense that was committed after his prior "conviction" for cocaine possession had become final, thereby qualifying it as a State-law counterpart to the Federal felony offense of "recidivist possession" defined at 21 U.S.C. § 844(a) (2000).

On appeal, the respondent challenges the Immigration Judge's determination that he stands convicted of an aggravated felony.¹ In particular, the respondent invokes our precedent decision in Matter of Manrique, 21 I&N Dec. 58 (BIA 1995), and argues that his 2002 conviction does not constitute a valid factual predicate for an aggravated felony determination because it was expunged pursuant to a State rehabilitative procedure akin to that prescribed by the Federal First Offender Act. The DHS opposes the appeal and urges us to affirm the Immigration Judge's decision without separate opinion.

II. ISSUE

The issue on appeal is whether the respondent's 2003 Florida offense of marijuana possession qualifies as an "aggravated felony" by virtue of its correspondence to the Federal felony offense of "recidivist possession."

III. ANALYSIS

Section 101(a)(43) of the Act defines the term "aggravated felony" to include a "drug trafficking crime" under 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 interpreted this statutory language and 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.

The respondent entered pleas on two separate occasions to State-law offenses involving the simple possession of controlled substances. Although simple possession offenses typically proscribe conduct punishable as a Federal misdemeanor, the Supreme Court acknowledged in Lopez v. Gonzales, supra, 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]." Id. at 630 n.6 (emphasis added) (citation omitted). The Federal offense of "recidivist possession" is defined, in pertinent part, at 21 U.S.C. § 844(a):

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 respondent's 2003 Florida marijuana possession offense arguably possesses many characteristics of a Federal "recidivist possession" felony. Like 21 U.S.C. § 844(a), Florida law requires proof beyond a reasonable doubt that possession of a controlled substance was "knowing," Garcia v. State, 901 So. 2d 788, 793 (Fla. 2005), and both the CSA and Florida law define the concept of "possession" to encompass both actual and constructive possession. Compare United States v. Cooper, 203 F.3d 1279, 1286 (11th Cir. 2000), with Lester v. State, 891 So. 2d 1219, 1220-21 (Fla. Dist. Ct. App. 2005). Moreover, in July 2002 the respondent was sentenced to probation after entering a guilty plea to a charge of cocaine possession, a "drug, narcotic or chemical offense" under 21 U.S.C. § 844(c).² And the respondent's subsequent marijuana possession offense was committed in August 2003, long after the July 2002 judgment imposing probation became "final" by virtue of the expiration of the 30-day appeal period prescribed by Florida's Rules of Appellate Procedure. Fla. R. App. P. Rule 9.140(b)(3); see also United States v. Brazel, 102 F.3d 1120, 1163 (11th Cir. 1997) (holding that a prior conviction is "final" for purposes of the CSA's recidivism provisions when all avenues of direct appellate attack have been exhausted (citing United States v. Lippner, 676 F.2d 456, 467 (11th Cir. 1982))).³

Finally, although the trial court withheld adjudication of the respondent's guilt in connection with his 2002 cocaine possession offense and placed him on probation, the United States Court of Appeals for the Eleventh Circuit-in whose jurisdiction this proceeding arises-holds that a plea to a felony drug charge under Florida law constitutes a valid prior "conviction" for purposes of the CSA's recidivism provisions, even if the trial court withheld adjudication of guilt. United States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995). The Immigration Judge determined that the respondent's 2002 conviction had never been set aside, but the respondent claims on appeal that the conviction was, in fact, expunged upon his successful completion of probation.⁴ We are unaware of any controlling Eleventh Circuit precedent on the question whether a conviction that has been expunged for rehabilitative purposes qualifies as a valid prior conviction under the CSA. However, every other Federal court of appeals to have addressed the question has concluded that a withheld or deferred adjudication remains a valid prior conviction under the CSA's recidivism provisions even if the underlying prosecution or conviction was expunged pursuant to a State's rehabilitative procedures. See United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006); United States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003); United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993).⁵ These circuit court decisions are consistent with, and to a large extent derived from, the Supreme Court's decision in Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983), in which the Court held that Federal firearms disabilities applied with respect to any person who pled guilty to a State offense punishable by imprisonment for more than 1 year, even if the record of the State criminal proceeding was subsequently expunged following a successfully served term of probation. Id. at 115 (holding that "expunction under state law does not alter the historical fact of the conviction, . . . does not alter the legality of the previous conviction[,] and does not signify that the defendant was innocent of the crime to which he pleaded guilty").⁶ Thus, even if we assume for purposes of appeal that the respondent's 2002 cocaine possession...