Matter of Aruna
| Decision Date | 26 February 2008 |
| Docket Number | File A44 754 412.,Interim Decision No. 3600. |
| Citation | 24 I&N Dec. 452 |
| Parties | Matter of Lamin ARUNA, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent has appealed from an Immigration Judge's decision dated October 4, 2007, finding him removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an alien convicted of an "aggravated felony."1 The Department of Homeland Security ("DHS") opposes the appeal. The appeal will be dismissed.
The respondent is a native and citizen of Sierra Leone who was convicted on January 2, 2007, of conspiracy to distribute a controlled dangerous substance (marijuana) in violation of Maryland law. Relying on the United States Supreme Court's decision in Lopez v. Gonzales, 127 S. Ct. 625 (2006), the Immigration Judge determined that the respondent's Maryland offense is an aggravated felony within the meaning of sections 101(a)(43)(B) and (U) of the Act, 8 U.S.C. §§ 1101(a)(43)(B) and (U) (2000), i.e., a "conspiracy" to commit a "drug trafficking crime" under 18 U.S.C. § 924(c) (2000). Specifically, the Immigration Judge concluded that the Maryland offense of conspiracy to distribute marijuana qualifies as an aggravated felony because it corresponds to an offense punishable as a felony under the Federal Controlled Substances Act ("CSA").
The only issue on appeal is whether the respondent's offense is an aggravated felony that renders him removable and ineligible for cancellation of removal under section 240A(a)(3) of the Act, 8 U.S.C. § 1229b(a)(3) (2000). The respondent argues that his Maryland offense cannot qualify as an aggravated felony because it was classified as a "misdemeanor" under Maryland law. In the alternative, he disputes the Immigration Judge's conclusion that his Maryland crime corresponds to any Federal felony.
Section 101(a)(43) of the Act defines the term "aggravated felony" to include a "drug trafficking crime" as defined in 18 U.S.C. § 924(c), "whether in violation of Federal or State law," as well as any "conspiracy" to commit such an offense. 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 has 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, supra, at 633. 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 CSA. Id. at 631 & n.7.
The issue on appeal is whether the respondent's 2007 Maryland conviction was for an offense that "proscribes conduct punishable as a felony" under the CSA within the meaning of Lopez v. Gonzales, supra, at 633, such that it may be considered a "drug trafficking crime" and, by extension, an "aggravated felony."
At the outset, we reject the respondent's contention that his Maryland offense must be excluded from aggravated felony treatment simply by virtue of the fact that Maryland law denominates it a "misdemeanor." By placing the term "aggravated felony" in quotes followed by the word "means," Congress made clear that "aggravated felony" is a term of art that is defined by the subsections that follow, and it is well established that the term encompasses nonfelony offenses that are otherwise encompassed by its language. Wireko v. Reno, 211 F.3d 833, 835-36 (4th Cir. 2000); see also Biskupski v. Att'y Gen. of U.S., 503 F.3d 274, 280 n.10 (3d Cir. 2007), and cases cited therein; Matter of Small, 23 I&N Dec. 448 (BIA 2002). Under the rationale of Lopez v. Gonzales, supra, whether a State drug offense is a "drug trafficking crime" aggravated felony turns solely on its correspondence to a Federal felony, not on how the State graded the offense. See Lopez v. Gonzales, supra, at 633 (); see also Matter of Carachuri-Rosendo, 24 I&N Dec. 382, 399 (BIA 2007) (Pauley, concurring) (). Accordingly, we conclude that a State drug offense that corresponds to a Federal felony qualifies as a "drug trafficking crime" aggravated felony under section 101(a)(43)(B) of the Act, even if the offense is classified as a misdemeanor under State law. We now turn to the question whether such a correspondence exists in this case.
The Supreme Court has explained that "a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony." Lopez v. Gonzales, supra, at 631. The elements of the respondent's Maryland offense were a "conspiracy" to "distribute" a "controlled dangerous substance," marijuana. The distribution of controlled dangerous substances is prohibited by section 5-602 of the Maryland Criminal Law, while the offense of "conspiracy" is prohibited by the Maryland courts as a matter of State common law. See Acquah v. State, 686 A.2d 690, 694 n.1 (Md. Ct. Spec. App. 1996). The CSA likewise prohibits the "distribution" of controlled substances (including marijuana), 21 U.S.C. § 841(a)(1) (2000), and provides that "[a]ny person who . . . conspires to commit any [such] offense . . . shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the . . . conspiracy." 21 U.S.C. § 846 (2000). The Maryland Code and the CSA both define the term "distribution" to encompass transfers of controlled substances without remuneration. Compare Md. Code Ann., Crim. Law §§ 5-101(h), (l) (West 2007), with 21 U.S.C. §§ 802(8), (11) (2000). See generally United States v. Washington, 41 F.3d 917, 919 (4th Cir. 1994) (). And both Maryland law and the CSA define "conspiracy" to include any knowing agreement to commit a crime, even in the absence of any "overt act" in furtherance of the agreement. Compare Hudson v. State, 832 A.2d 834, 850 (Md. Ct. Spec. App. 2003), with United States v. Shabani, 513 U.S. 10, 13-16 (1994). Thus, we conclude that the elements of the respondent's Maryland offense correspond to the elements of the Federal offense of conspiracy to distribute marijuana, a crime that carries a maximum penalty of 5 years' imprisonment under the CSA, absent enhancements based on quantity or recidivism. 21 U.S.C. §§ 841(b)(1)(D), 846 (2000 & Supp. IV 2004).
The respondent argues that marijuana distribution under Maryland law does not correspond to a Federal felony because 21 U.S.C. § 841(b)(4) (2000) provides that an offender who distributes a "small amount of marihuana for no remuneration shall be treated" as if he committed simple possession, which is a Federal misdemeanor under 21 U.S.C. § 844(a) (2000).2 According to the respondent, the DHS failed to meet its burden of proving his deportability because no evidence was provided to show that he was convicted of either distributing a large amount of marijuana or distributing marijuana for remuneration. In other words, the respondent argues that the proper Federal analogue for his State distribution offense is "misdemeanor marijuana distribution" under 21 U.S.C. § 841(b)(4), rather than "felony marijuana distribution" under 21 U.S.C. § 841(b)(1)(D). We reject the respondent's argument.
The present aggravated felony determination is subject to the "categorical approach," meaning that the "elements" of the respondent's predicate offense must correspond to the "elements" of an offense that carries a maximum term of imprisonment of more than 1 year under the CSA. See Lopez v. Gonzales, supra, at 631; Matter of Carachuri-Rosendo, supra, at 389. For purposes of categorical analysis, the "elements" of a Federal felony under the CSA are those facts that must be proved to a jury beyond a reasonable doubt in order to convict. Shepard v. United States, 544 U.S. 13, 24-26 (2005) ().
Under Apprendi v. New Jersey, supra, at 490, and its progeny, any aggravating fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Consequently, such facts may often need to be treated as the equivalent of offense "elements" for purposes of categorical analysis. Matter of Martinez-Zapata, 24 I&N Dec. 424, 425-26 (BIA 2007); Matter of...
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