Rashid v. Mukasey

• Decision Date: 26 June 2008
• Docket Number: No. 06-4270.,06-4270.
• Citation: 531 F.3d 438
• Parties: Zia Ul Islam RASHID, Petitioner, v. Michael B. MUKASEY, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

531 F.3d 438

Zia Ul Islam RASHID, Petitioner, v. Michael B. MUKASEY, United States Attorney General, Respondent.

No. 06-4270.

United States Court of Appeals, Sixth Circuit.

Argued: June 4, 2008.

Decided and Filed: June 26, 2008.

ARGUED: Maris J. Liss, George P. Mann & Associates, Farmington Hills, Michigan, for Petitioner. Terri Leon-Benner, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: George P. Mann, George P. Mann & Associates, Farmington Hills, Michigan, for Petitioner. Terri Leon-Benner, United States Department of Justice, Washington, D.C., for Respondent.

Before: MERRITT, CLAY, and GILMAN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

This case presents an important issue at the intersection of immigration law and criminal law. Zia Ul Islam Rashid, a legal permanent resident, was twice convicted of misdemeanor marijuana possession in the state courts of Michigan, first in 2000 and again in 2005. He was subsequently charged by the Department of Homeland Security (DHS) with removability under the Immigration and Nationality Act (INA). Rashid conceded that he was removable because of his convictions for possessing a controlled substance, but he applied for cancellation of removal.

An Immigration Judge (IJ) determined that Rashid's two state misdemeanor convictions combined to constitute an aggravated felony under federal law, thereby rendering him ineligible for cancellation of removal. The BIA affirmed. He now appeals to this court, arguing that both the IJ and the BIA erred as a matter of law in concluding that his two drug-possession offenses together qualify as an aggravated felony under federal law. For the reasons set forth below, we REVERSE the judgment of the BIA and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

Rashid is a native and citizen of Pakistan. He became a legal permanent resident of the United States in November of 1993. In May of 2000, Rashid pled guilty in a Michigan state court to the criminal possession of a small quantity of marijuana, a misdemeanor offense. Five years later, in October of 2005, Rashid again pled guilty to the misdemeanor offense of marijuana possession.

DHS initiated removal proceedings against Rashid following his second conviction. According to DHS, Rashid was removable pursuant to § 237(a)(2)(A)(iii) of the INA (8 U.S.C. § 1227(a)(2)(A)(iii)), because he had in effect been convicted of an aggravated felony as defined by § 10 1(a)(43)(B) of the INA (8 U.S.C. § 1101(a)(43)(B)). Rashid was also charged with being subject to remove pursuant to § 237(a)(2)(B)(i) of the INA (8 U.S.C. § 1227(a)(2)(B)(i)), because he had been convicted of violating a law relating to a controlled substance on more than one occasion.

B. Procedural background

In March of 2006, Rashid conceded that he was removable on the basis of the controlled-substance offenses, but did not agree with the applicability of the aggravated-felony charge. He applied for cancellation of removal under § 240A(a) of the INA (8 U.S.C. § 1229b(a)). The IJ concluded that Rashid was ineligible for cancellation of removal because he had in effect committed an aggravated felony under federal law. Specifically, the IJ determined that the federal law governing "recidivist possession" rendered Rashid's second drug-possession conviction a felony drug-trafficking offense, despite the fact that both of the state convictions were misdemeanors and neither involved drug trafficking as the phrase is ordinarily understood. The IJ relied on this court's decision in United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir.2005), in reaching this conclusion.

Rashid appealed to the BIA, arguing that the IJ erred in relying on Palacios-Suarez and in concluding that Rashid was ineligible for cancellation of removal. The BIA affirmed the decision of the IJ and, like the IJ, specifically relied on Palacios-Suarez. Rashid was subsequently deported and is now living in Pakistan. This timely appeal followed.

II. ANALYSIS

A. Standard of review

Because the BIA adopted the IJ's decision with additional commentary, we review the decision of the IJ, as supplemented by the BIA, as the final administrative order. Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir.2005). Questions of law involving immigration proceedings are reviewed de novo. Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir.2004).

B. Multiple drug-possession offenses as an "aggravated felony" under 8 U.S.C. § 1227(a)(2)(A)(iii)

At issue in this case is whether Rashid's two state misdemeanor convictions for marijuana possession, taken together, morph into an "aggravated felony" under the INA. This counterintuitive result is possible because of multiple layers of definitions under the INA and the Controlled Substances Act (CSA), 21 U.S.C. §§ 801-971. Section 1101(a)(43)(B) of the INA (8 U.S.C. § 1101(a)(43)(B)) includes "drug trafficking crime[s] (as defined in [§ ] 924(c) of [T]itle 18)" as aggravated felonies. A "drug trafficking crime," in turn, is defined as "any felony punishable under the [CSA]." 18 U.S.C. § 924(c)(2). Finally, § 844(a) of the CSA (21 U.S.C. § 844(a)) has the effect of treating anyone convicted as a recidivist drug offender as a felon, even if either or both of the offenses in isolation were only misdemeanor convictions.

The IJ and the BIA both concluded that Rashid's two marijuana convictions, taken together, constituted the aggravated felony of recidivist possession, in violation of 21 U.S.C. § 844(a). In other words, the IJ and the BIA determined that Rashid had committed the crime of recidivist possession, an aggravated felony under the INA because it is a felony punishable under the CSA and thus a drug-trafficking crime under 18 U.S.C. § 924(c)(2). This means that Rashid was deemed ineligible for cancellation of removal because an immigrant who has been convicted of an aggravated felony is ineligible for such relief pursuant to § 1229b(a)(3) of the INA (8 U.S.C. § 1229b(a)(3)).

Rashid concedes that he is removable under 8 U.S.C. § 1227(a)(2)(B)(i) because he was convicted of two state drug-possession offenses, and has thus "been convicted of a violation of ... any 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." Id. (emphasis added). He argues, however, that he has not committed an aggravated felony within the meaning of the INA and is therefore still eligible for cancellation of removal. Specifically, Rashid claims that the IJ and the BIA improperly concluded that his two state drug-possession convictions qualify as recidivist possession.

C. The government's motion to remand

The government has argued that this case should be remanded in order for the BIA to apply recent decisions that have refined the BIA's approach to treating state drug-possession offenses as aggravated felonies. Specifically, the government cites Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007), and Matter of Thomas, 24 I. & N. Dec. 416 (BIA 2007). In Carachuri-Rosendo, the BIA explicitly concluded that

absent controlling [circuit] authority regarding the "recidivist possession" issue, an alien's State conviction for simple possession of a controlled substance will not be considered an aggravated felony conviction on the basis of recidivism unless the alien's status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense.

24 I. & N. Dec. at 394. The BIA applied Carachuri-Rosendo in Thomas and concluded that because the Eleventh Circuit did not have any controlling precedent with respect to the recidivist-possession issue, the BIA had to determine whether there was proof that the immigrant had either admitted his status as a recidivist drug offender or whether his status as such had been determined by a judge or jury. 24 I. & N. Dec. at 421.

At the time the BIA issued its opinion in Carachuri-Rosendo, however, it noted that seven circuits, including the Sixth Circuit, have "issued precedents deciding whether, and under what circumstances, a State offense of simple possession of a controlled substance qualifies as an aggravated felony based on its correspondence to the Federal felony of `recidivist possession.'" 24 I. & N. at 385. Notably, the Eleventh Circuit was not among the seven circuits identified by the BIA. The decision in Thomas is thus not applicable to Rashid's case, given the BIA's reliance on United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir.2005), discussed in detail below, as the controlling Sixth Circuit precedent on this issue.

Rashid in fact points out that even after the decision in Carachuri-Rosendo, the BIA has issued conflicting decisions as to its interpretation of Palacios-Suarez. He first cites Matter of Escot-Miranda, File No. A45 123 036, 2008 WL 1734648 (BIA Mar. 24, 2008), where the BIA concluded that the Sixth Circuit "is agnostic on [the] central question" of "whether a State simple possession offense that otherwise conforms to the requirements of 21 U.S.C. § 844(a) but that was not prosecuted under State recidivism laws can be treated as a `counterpart' of the Federal felony of recidivist possession." Rashid then notes that only five days prior to the decision in Escot-Miranda, the BIA concluded in Matter of Guzman-Gonzalez, File No. A43 746 142 (BIA Mar. 19, 2008), that "[i]n order for a second misdemeanor drug possession conviction to qualify as an aggravated felony in the Sixth Circuit[,] ... controlling precedent only requires that the conviction occur after a first such conviction becomes final." This causes considerable uncertainty as to what result the BIA would reach if Rashid's case were remanded to it for an opportunity to apply its recent Carachuri-Rosendo approach to our Palacios-Suarez decision...