Ming Wei Chen v. Sessions

• Decision Date: 20 July 2017
• Docket Number: No. 17-1130,17-1130
• Citation: 864 F.3d 536
• Parties: MING WEI CHEN, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

864 F.3d 536

MING WEI CHEN, Petitioner,
v.
Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.

No. 17-1130

United States Court of Appeals, Seventh Circuit.

Argued July 7, 2017
Decided July 20, 2017

Robert T. Carpenter, Attorney, Carpenter & Capt, Chicago, IL, for Petitioner.

OIL, Matthew A. Spurlock, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Wood, Chief Judge, and Bauer and Flaum, Circuit Judges.

Wood, Chief Judge.

Ming Wei Chen, a lawful permanent resident originally from China, was ordered removed from the United States as an alien convicted of a controlled-substance crime, see 8 U.S.C. § 1182(a)(2)(A)(i)(II). The Board of Immigration Appeals decided that Chen is ineligible for cancellation of removal because of an Illinois conviction for possessing more than 30 but not more than 500 grams of marijuana, 720 ILCS § 550/5(d). This, the Board thought, qualifies as an aggravated felony; if that is correct, then Chen is indeed ineligible for the relief he seeks. 8 U.S.C. § 1229b(a). Chen seeks review of that ruling in this court. We conclude that the Board misapplied the Supreme Court's decision in Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), when it characterized Chen's conviction under ILCS § 550/5(d) as an aggravated felony. We therefore grant his petition for review and return the case to the agency for further action.

I

Chen was 11 years old when his parents brought him to the United States and he became a permanent resident. About nine years later, in 2010, he pleaded guilty to possessing with intent to deliver more than 10 but not more than 30 grams of marijuana, 720 ILCS § 550/5(c), and he was sentenced to 24 months' probation. In 2011 he pleaded guilty to possessing with intent to deliver more than 30 but not more than 500 grams of marijuana, 720 ILCS § 550/5(d), after police located in his vehicle 462.8 grams of marijuana that he intended to sell. He again was sentenced to 24 months' probation. In 2016 he came to the attention of immigration officials when he went through U.S. customs as he was returning from a trip to China. Immigration officials initiated removal proceedings that charged him with being inadmissible and removable on account of his 2010 and 2011 Illinois marijuana convictions, see 8 U.S.C. § 1182(a)(2)(A)(i)(II).

Chen conceded his removability, but he argued that he was eligible for cancellation of removal, see 8 U.S.C. § 1229b(a). Section 1229b(a) provides that the Attorney General may cancel the removal of a person who has been a lawful permanent resident for at least five years, has resided in the United States continuously for seven years after being admitted, and has not been convicted of an "aggravated felony." Only the last criterion is at issue here: Chen contended that his 2011 conviction for possessing marijuana with intent to deliver does not qualify as an aggravated felony.

Aggravated felonies, for immigration purposes, include "drug trafficking crime(s) (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). That definition includes "any felony punishable

864 F.3d 538

under the Controlled Substances Act [CSA]," and that Act categorizes as a felony any offense for which the "maximum term of imprisonment authorized" is more than one year, 18 U.S.C. § 3559(a)(5), (6). To determine whether a state conviction qualifies as an aggravated felony, the court must consider "whether the state statute defining the crime of conviction categorically fits within the generic federal definition." Moncrieffe , 133 S.Ct. at 1684 (quotation marks omitted). In addition, and critically for this case, the Supreme Court said in Moncrieffe that the court "must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense." Id. (quotation marks omitted).

Chen argued that his 2011 conviction is not an aggravated felony because 720 ILCS § 550/5(d) punishes conduct that would be a misdemeanor under the CSA. Moncrieffe , he points out, held that a Georgia conviction for possession with intent to distribute marijuana was not an aggravated felony. In that case, the fact of the defendant's conviction "standing alone, [did] not reveal whether either remuneration or more than a small amount of marijuana was involved. It is possible neither was." Id. at 1686. Applying the categorical approach, the Court thus concluded that Moncrieffe had not been convicted of an aggravated felony, because the state's statute defined his crime of conviction broadly enough to punish federal marijuana misdemeanors. See 21 U.S.C. § 841(b)(4) (stating that any person who distributes "a small amount of marihuana for no remuneration shall be treated as provided in" 21 U.S.C. § 844, which means for our purposes punished as a misdemeanant.) In reaching that decision, the Court expressly declined to define the term "small amount." Id. at 1686 n.7. It took this position even as it quoted from the Board's decision in Matter of Castro Rodriguez , 25 I & N. Dec. 698, 703 (BIA 2012), where the Board said that 30 grams "serve(s) as a useful guidepost" for what counts as "small." 133 S.Ct. at 1686 n.7.

Chen maintained that the least of the acts criminalized by 720 ILCS § 550/5(d) is the possession of a hair over 30 grams—call it 30.0001 grams. He argued that this weight is not "markedly different" from 30 grams. Furthermore, he emphasized, the 30-gram level was only a guidepost, not a rigid line, and "more than" 30 grams could be just a tiny amount above that mark.

The Immigration Judge decided that Chen was statutorily ineligible for cancellation of removal. The IJ concluded that Chen's 2011 conviction was categorically an aggravated felony. She reasoned that none of the conduct that the state statute prohibited would fall within the federal misdemeanor "exception" discussed in Moncrieffe , because the Illinois law covers "more...