Liao v. Rabbett

• Decision Date: 07 February 2005
• Docket Number: No. 03-4541.,03-4541.
• Citation: 398 F.3d 389
• Parties: Chi Jing LIAO, Petitioner-Appellee, v. Linda RABBETT, Interim District Director, Cleveland Office, United States Department of Homeland Security; John Ashcroft, Attorney General, Respondents-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 389

398 F.3d 389

Chi Jing LIAO, Petitioner-Appellee, v. Linda RABBETT, Interim District Director, Cleveland Office, United States Department of Homeland Security; John Ashcroft, Attorney General, Respondents-Appellants.

No. 03-4541.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2004.

Decided and Filed: February 7, 2005.

ARGUED: Alison R. Drucker, United States Department of Justice, Washington, D.C., for Appellants. Scott E. Bratton, Margaret Wong & Associates Co. LPA, Cleveland, Ohio, for Appellee. ON BRIEF: Alison R. Drucker, United States Department of Justice, Washington, D.C., for Appellants. Scott E. Bratton, Margaret Wong & Associates Co. LPA, Cleveland, Ohio, for Appellee.

Before: GUY and COLE, Circuit Judges; TARNOW, District Judge.^*

OPINION

RALPH B. GUY, Jr., Circuit Judge.

Respondents appeal from the district court's order granting habeas relief to petitioner, Chi Jing Liao, and declaring him eligible to apply for cancellation of removal. While conceding he was removable on other grounds, Liao's habeas petition challenged the determination of the Board of Immigration Appeals (BIA) that his state conviction for possession of heroin was an "aggravated felony" as defined by 8 U.S.C. § 1101(a)(43)(B), rendering him ineligible to seek discretionary cancellation of removal under 8 U.S.C. § 1229b(a).¹ Because we agree that Liao's conviction did not qualify as an "aggravated felony" under this section, we AFFIRM.

I.

Petitioner, Chi Jing Liao, a native and citizen of the People's Republic of China, entered the United States as a lawful permanent resident in October 1992. In September 2000, Liao was convicted on three state charges: (1) simple possession of heroin, in violation of Ohio Rev.Code § 2925.11; (2) theft, in violation of Ohio Rev.Code § 2913.02; and (3) receiving stolen property, in violation of Ohio Rev.Code § 2913.51. These convictions resulted in concurrent six-month terms of imprisonment. Possession of heroin, the focus of this appeal, is a "fifth degree felony" under Ohio law, but is punishable by a maximum term of 12 months' imprisonment.

The INS (now the Department of Homeland Security) commenced removal proceedings against Liao in September 2002. The initial notice charged two independent grounds for removal: (1) that Liao had been convicted of a violation of state law "relating to a controlled substance ..., other than a single offense involving possession for one's own use of 30 grams or less of marijuana," 8 U.S.C. § 1227(a)(2)(B)(i); and (2) that he had been convicted of "two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct," 8 U.S.C. § 1227(a)(2)(A)(ii). Liao conceded that he was removable on either of these grounds, and requested, among other forms of relief, discretionary cancellation of removal.

In December 2002, however, respondents further charged that Liao's state drug conviction was an "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43)(B), which made him both subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii), and ineligible for discretionary cancellation of removal under 8 U.S.C. § 1229b. The immigration judge agreed and entered an order of removal. Liao appealed, and a divided panel of the BIA affirmed on May 29, 2003.

Liao did not seek direct judicial review of the BIA's final order of removal, but filed a petition for writ of habeas corpus in the district court on June 10, 2003. On September 29, 2003, after receiving the parties' submissions on the merits, the district court rejected the BIA's interpretation; relied on some of the same cases cited by the dissenting panel member; and found Liao's drug conviction was not a felony under state law, and therefore not an "aggravated felony" under § 1101(a)(43)(B), because it was not punishable by more than one year in prison. The district court accordingly granted the habeas petition and declared that Liao was eligible to apply for cancellation of removal. Respondents appealed.

II.

A. Background

The term "aggravated felony" is a term of art that can include misdemeanors, see United States v. Gonzales-Vela, 276 F.3d 763 (6th Cir.2001) (misdemeanor sexual abuse of a minor is an "aggravated felony"), and has been increasingly expanded to encompass many kinds of offenses, 8 U.S.C. § 1101(a)(43)(A)-(U). See INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (discussing expansion). This case concerns only § 1101(a)(43)(B), which defines "aggravated felony" to mean "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)," and specifically provides that this applies to any such offense "whether in violation of Federal or State law[.]" 8 U.S.C. § 1101(a)(43)(B) (emphasis added). The federal criminal code, in turn, defines "drug trafficking crime" to be "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. 1091 et seq.)." 18 U.S.C. § 924(c)(2).² Competing interpretations of the phrase "any felony punishable under the Controlled Substances Act [CSA]" in § 924(c)(2) for purposes of § 1101(a)(43)(B) have developed, although this court has not taken a position on the issue. Garcia-Echaverria v. United States, 376 F.3d 507, 512 (6th Cir.2004).

One interpretation, referred to as the "hypothetical felony" approach, finds its origin in early BIA decisions that held a state drug conviction could qualify as an "aggravated felony" in one of two ways: (1) if the state felony conviction had a "trafficking element" (which is not argued here); or (2) if the conviction would be punishable as a felony under one of the enumerated federal drug statutes (the "hypothetical felony" approach). In re Davis, 20 I & N Dec. 536, 541-42 (BIA 1992); In re Barrett, 20 I & N Dec. 171 (BIA 1990). This interpretation reads the phrase "any felony punishable under the CSA" to mean any conviction punishable as a felony under the CSA. The BIA adhered to this "analogous" or "hypothetical" felony approach for a number of years, except in circuits that held to the contrary. In re L-G, 21 I & N Dec. 89 (BIA 1995) (disagreeing with Jenkins v. INS, 32 F.3d 11 (2d Cir.1994)).

The Second, Third, and, most recently, the Ninth Circuits have adopted the "hypothetical felony" approach in immigration cases to determine whether a state drug conviction is a "drug trafficking crime" and therefore an "aggravated felony." Aguirre v. INS, 79 F.3d 315 (2d Cir.1996); Gerbier v. Holmes, 280 F.3d 297 (3d Cir.2002); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir.2004). As most fully articulated in Cazarez-Gutierrez, this interpretation rests principally on an overriding presumption favoring the uniform application of immigration laws, absent plain indication that Congress intended to incorporate state variation. Looking at the legislative history for § 924(c), these courts found that Congress intended state drug convictions would qualify as aggravated felonies for immigration purposes only if they were punishable as felonies under federal law or involved a trafficking element. Cazarez-Gutierrez, 382 F.3d at 914-17; Gerbier, 280 F.3d at 304-09. Practically speaking, then, a state felony drug possession conviction (not involving any element of drug trafficking) that would only be punishable as a federal misdemeanor would not constitute an "aggravated felony" under § 1101(a)(43)(B).³

The other interpretation, referred to as the "guideline" approach, developed independently in federal sentencing cases; specifically, in the application of the U.S. Sentencing Guideline Manual (U.S.S.G.) § 2L1.2 to aliens convicted of unlawful reentry into the United States after conviction for an "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43).⁴ Under this approach, which has been adopted by a clear majority of circuits addressing the issue in the sentencing context, a state drug conviction constitutes a "drug trafficking crime" and therefore an "aggravated felony" if (1) it was punishable under the CSA (or the other statutes not at issue here); and (2) it was a felony under federal or state law. See United States v. Wilson, 316 F.3d 506 (4th Cir.2003), cert. denied, 538 U.S. 1025, 123 S.Ct. 1959, 155 L.Ed.2d 871 (2003); United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir.2000); United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir.1999); United States v. Simon, 168 F.3d 1271 (11th Cir.1999); United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir.1997); 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).

These cases interpreted § 924(c)(2)'s phrase "any felony punishable under the CSA" to plainly mean "any felony," state or federal, that would be punishable under the CSA. Moreover, the courts found the CSA's own definition of "felony" supported this construction. 21 U.S.C. § 802(13) ("The term `felony' means any Federal or State offense classified by applicable Federal or State law as a felony.") Significantly, the issue in all of these cases was whether the state felony drug conviction could ever be a "drug trafficking crime" and therefore an "aggravated felony" if it would not be a felony under federal law. None addressed the further question, presented in this case, of how to determine whether a state drug conviction was a felony under state law.

In 1999, the BIA reaffirmed its intention to apply the "hypothetical felony" approach as a "default" interpretation for circuits that had not specifically decided to the contrary in an immigration context. In re K-V-D, 22 I & N Dec. 1163 (BIA 1999). The Fifth Circuit took issue with this and rejected the proposition that interpretation ...