In re Yanez-Garcia
| Citation | 23 I&N Dec. 390 |
| Decision Date | 13 May 2002 |
| Docket Number | Interim Decision Number 3473,File A91 334 042. |
| Parties | In re Ismael YANEZ-Garcia, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The determination whether a state drug offense constitutes a "drug trafficking crime" under 18 U.S.C. § 924(c)(2) (2000), such that it may be considered an "aggravated felony" under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), shall be made by reference to decisional authority from the federal circuit courts of appeals, and not by reference to any separate legal standard adopted by the Board of Immigration Appeals. Matter of K----V----D----, Interim Decision 3422 (BIA 1999), overruled. Matter of L----G----, 21 I&N Dec. 89 (BIA 1995), and Matter of Davis, 20 I&N Dec. 536 (BIA 1992), modified.
FOR RESPONDENT: Carol A. Waldman, Esquire, Chicago, Illinois
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Amy C. Hoogasian, Assistant District Counsel
BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman; SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, GUENDELSBERGER, GRANT, MOSCATO, MILLER, BRENNAN, OSUNA, OHLSON, HESS, and PAULEY, Board Members. Concurring and Dissenting Opinion: ROSENBERG and ESPENOZA, Board Members.
FILPPU, Board Member:
In a decision dated March 14, 2000, an Immigration Judge sustained the charges of removability against the respondent, denied his requests for relief from removal, and directed that he be removed to Mexico. The respondent has appealed from that decision, arguing that the Immigration Judge erred as a matter of law in finding him removable as an alien convicted of an aggravated felony on the basis of his two state convictions for drug possession, and requesting that the record be remanded so that he may apply for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2000).
We will dismiss the respondent's appeal.1 Moreover, we have reexamined our precedent decision in Matter of K----V----D----, Interim Decision 3422 (BIA 1999), where we held that state drug offenses may be considered aggravated felonies for immigration law purposes only if they are "analogous" to offenses punishable as felonies under the federal drug laws. As explained below, we now withdraw from Matter of K----V----D----, supra, as well as from those portions of Matter of L----G----, 21 I&N Dec. 89 (BIA 1995), and Matter of Davis, 20 I&N Dec. 536 (BIA 1992), that are inconsistent with our present decision.
A number of federal circuit courts of appeals have developed standards for answering the question whether a state felony drug conviction constitutes an aggravated felony under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (2000). We will now follow those standards in immigration cases arising within those circuits. Further, for reasons stated below, in immigration cases arising within circuits that have not yet had occasion to consider this question, we will apply the standards adopted by the majority of the circuit courts.
The respondent is a native and citizen of Mexico and a lawful permanent resident of the United States. The record reflects that he has been convicted twice in the Circuit Court of Cook County, Illinois, of the offense of possession of cocaine in violation of chapter 720, section 570/402(c) of the Illinois Compiled Statutes: (1) on January 5, 1998, for which he was fined and sentenced to 1 year of probation; and (2) on May 27, 1999, for which he was sentenced to 90 days of incarceration and 18 months of probation. His offenses are classified as "class 4 felonies" under Illinois law, and are therefore punishable by a term of imprisonment of between 1 and 3 years. See 730 Ill. Comp. Stat. Ann. 5/5-8-1(a)(7) (West 1999). On the basis of these convictions, the Immigration and Naturalization Service charged the respondent with removability as an alien convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), and as an alien convicted of an offense relating to a controlled substance under section 237(a)(2)(B)(i) of the Act. The Immigration Judge sustained both charges, and this timely appeal followed.2
The respondent raises a variety of arguments on appeal. Two of these arguments challenge the conclusion that his Illinois offenses are analogous to an offense punishable as a felony under federal drug laws, as required by Matter of K----V----D----, supra. The respondent correctly notes that his state convictions, which were for simple possession of cocaine, can only be analogous to a federal felony if his first conviction was "final" when his second possession offense occurred. See 21 U.S.C. § 844(a)(1) (2000). Consequently, he argues that his first conviction for cocaine possession— which resulted in a deferral of judgment and a sentence of probation under the Illinois first offender statute—was not "final" when he committed his second offense, and that the two convictions, taken together, are therefore not analogous to felony possession, which is punishable under 21 U.S.C. § 844(a)(1). Alternatively, the respondent contends that, even if his first conviction was final at the time of his second offense, that second offense is not truly analogous to a federal felony because he never received an "enhancement information" from a federal prosecutor, see 21 U.S.C. § 851(a)(1) (2000), as required for the imposition of enhanced punishment, based on prior convictions, under 21 U.S.C. § 844(a)(1).
The respondent's appeal raises substantial legal questions and illustrates some of the difficulties that can arise when applying the analytical approach that we adopted in Matter of K----V----D----, supra. Specifically, when determining whether a state drug conviction is analogous to a federal felony conviction, we are confronted with the fact that any hypothetical federal prosecution would have been governed by procedural and sentencing requirements entirely different from those that were, in fact, employed by the convicting state. To resolve this dilemma, we would therefore need to develop a standard for determining whether state finality rules, which may themselves be ambiguous, are analogous to the finality rules governing felony drug prosecutions under federal law. Furthermore, we would need a standard to determine whether the mandatory procedural requirements governing such federal prosecutions are analogous to those that applied in the convicting state.3
Completely apart from these analytical difficulties, moreover, is the fact that Matter of K----V----D---- interprets 18 U.S.C. § 924(c)(2) (1994)—the federal criminal statute incorporated into the aggravated felony definition by section 101(a)(43)(B) of the Act—in a manner that has not generally been followed by the federal criminal law courts. Indeed, in one criminal case, a circuit court explicitly rejected the legal rationale underlying Matter of K----V----D----. See United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.) (), cert. denied, 122 S. Ct. 305 (2001). In response to Hernandez-Avalos, we issued a decision withdrawing from Matter of K----V----D---- in cases arising within the Fifth Circuit. See Matter of Salazar, 23 I&N Dec. 223, 235 (BIA 2002).
The analytical difficulties inherent in the hypothetical felony approach, the broad adoption of a different approach by a substantial number of federal circuit courts, and the outright rejection of Matter of K----V----D---- by one circuit all lead us to reexamine the question whether state drug convictions classified as felonies under applicable state law, but not necessarily under federal law, constitute "drug trafficking crimes" under 18 U.S.C. § 924(c)(2), such that they may be considered aggravated felonies under section 101(a)(43)(B) of the Act.
Section 101(a)(43) of the Act defines the categories of offenses that merit treatment as "aggravated felonies" under the immigration laws and provides that the phrase "aggravated felony" "applies to an offense described in this paragraph, whether in violation of Federal or State law." Included in the "aggravated felony" definition is
illicit trafficking in a controlled substance (as described in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in § 924(c) of title 18, United States Code).
Section 101(a)(43)(B) of the Act.4 The term "drug trafficking crime" referenced in this portion of the aggravated felony definition is, in turn, defined as follows:
[T]he term "drug trafficking crime" means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).
18 U.S.C. § 924(c)(2).
The Controlled Substances Act ("CSA") defines the term "felony" as "any Federal or State offense classified by applicable Federal or State law as a felony." 21 U.S.C. § 802(13) (2000). This definition also applies to the Controlled Substances Import and Export Act and the Maritime Drug Law Enforcement Act. See 21 U.S.C. § 951(b) (2000); 46 U.S.C. App. § 1903(i) (2000).
The federal circuit courts of appeals and this Board agree that a state drug offense constitutes a "drug trafficking crime" under 18 U.S.C. § 924(c)(2) if it is (1) punishable under one of the three enumerated federal drug statutes and (2) a "felony." The first requirement is consistent with our decision in Matter of Barrett, 20 I&N Dec. 171 (BIA 1990), where we held that a state drug offense may be considered an aggravated felony only if it is analogous to an offense, such as...
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