Yanez-Garcia v. Ashcroft

• Decision Date: 02 November 2004
• Docket Number: No. 02-2666.,No. 02-2538.,02-2538.,02-2666.
• Citation: 388 F.3d 280
• Parties: Ismael YANEZ-GARCIA, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent. Nir Masok, Petitioner, v. John D. Ashcroft, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

388 F.3d 280

Ismael YANEZ-GARCIA, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent.

Nir Masok, Petitioner, v. John D. Ashcroft, Attorney General of the United States, Respondent.

No. 02-2538.

No. 02-2666.

United States Court of Appeals, Seventh Circuit.

Argued October 1, 2003.

Decided November 2, 2004.

Petition for review from the Board of Immigration Appeals.

Lisa J. Palumbo (argued), Legal Assistance Foundation of Metropolitan Chicago, Chicago, IL, for Yanez-Garcia.

Maria T. Baldini-Potermin (argued), Pollock & Associates, Chicago, IL, for Masok.

Jeffrey S. Bucholtz (argued), Department of Justice, Washington, DC, George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, for Respondent.

Before KANNE, ROVNER, and EVANS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Ismael Yanez-Garcia and Nir Masok are permanent resident aliens, each of whom has pleaded guilty in Illinois state court to possession of cocaine. The Board of Immigration Appeals concluded that this offense qualified as a drug trafficking crime, and therefore as an aggravated felony, rendering Yanez and Masok ineligible for cancellation of removal. Each of them filed a petition for review, asking us to overturn the BIA's conclusion that a single possession offense can qualify as a drug trafficking crime. This calls for us to address the meaning of "drug trafficking crime," which is defined as "any felony punishable under" federal drug laws. Specifically, we are asked to decide whether the term applies to drug crimes that are felonies under state law but only misdemeanors under federal law. However, the jurisdiction-stripping provisions of the Immigration and Nationality Act make it impossible for us to do so on direct review. We must therefore transfer this case to the district court for consideration as a petition for habeas corpus.

Under the Immigration and Nationality Act ("INA"), an alien who has been convicted of violating any law relating to a controlled substance offense is deportable. 8 U.S.C. § 1227(a)(2)(B). If that alien is a permanent resident (and meets certain other criteria) he may ask the Attorney General for discretionary cancellation of removal. 8 U.S.C. § 1229b(a). This remedy is unavailable, however, if the alien has been convicted of an aggravated felony. 8 U.S.C. § 1229b(a)(3). An alien with an aggravated felony conviction also may not return to the United States for at least twenty years, 8 U.S.C. § 1182(a)(9)(A)(i), and faces heightened penalties if he does return, 8 U.S.C. § 1326(b)(2). The definition of aggravated felony includes a "drug trafficking crime," 8 U.S.C. § 1101(a)(43)(B), which in turn includes "any felony punishable under the Controlled Substances Act [`CSA']," 18 U.S.C. § 924(c)(2).

Under the CSA, a first-time simple possession offense is (with irrelevant exceptions) punishable by a maximum of one year in prison, and is considered a misdemeanor. 21 U.S.C. § 844(a). In contrast, a second possession offense can carry a maximum sentence of two years, and is considered a felony. Id.

State laws, of course, classify drug offenses differently. In Illinois, possession of less than 15 grams of cocaine (the offense to which Yanez and Masok each pleaded guilty) is considered a Class 4 felony. 720 ILCS 570/402(c). So the question arises: if a state-law drug felony would only be a misdemeanor under federal law, is it considered a "felony punishable under" the Controlled Substances Act— and therefore a "drug trafficking offense" — for purposes of immigration law?

Until recently, the Board of Immigration Appeals held that it was not. Under its "hypothetical federal felony" rule, a drug offense had to be punishable as a felony under federal law in order to be considered a drug trafficking offense under the INA. See In re L-G-, 21 I. & N. Dec. 89, 102, 1995 WL 582051 (BIA 1995); Gerbier v. Holmes, 280 F.3d 297, 312 (3d Cir.2002) (split panel) (endorsing the "hypothetical federal felony" test); Aguirre v. INS, 79 F.3d 315, 317-18 (2d Cir.1996) (adopting the BIA's test in the interest of uniformity, but noting that "the statutory point is fairly debatable").

This was the rule in force at the time of Yanez's removal hearing. Although Yanez had two Illinois convictions for cocaine possession, which he conceded subjected him to removal, he wished to apply for cancellation. But the Immigration Judge concluded that because a second possession conviction is punishable as a felony under federal law, Yanez's second conviction qualified as an aggravated felony. The IJ therefore found him ineligible for cancellation of removal.

Yanez disputed this conclusion before the BIA. He pointed out that his first conviction resulted in probation, which was revoked only when he pleaded guilty to his second offense. He argued that there was thus no "prior final conviction" at the time of his second conviction, so the latter would not qualify as a federal felony. He still conceded removability, but argued that he should be allowed to apply for cancellation of removal.

The BIA did not decide whether Yanez's first conviction was "final." Instead, it took the occasion to reevaluate its long-standing "hypothetical federal felony" rule. It noted that some circuit courts had disagreed with that rule, although in the separate context of illegal reentry after removal. In that context, those circuits had concluded that "any felony punishable under" the Controlled Substances Act included any state-law felony punishable under the Act, even if it would only be a misdemeanor under federal law. See, e.g., United States v. Hernandez-Avalos, 251 F.3d 505, 509 (5th Cir.2001); United States v. Ibarra-Galindo, 206 F.3d 1337, 1341 (9th Cir.2000). Considering itself unable to sustain a different interpretation in those circuits, even for purposes of removal, the BIA decided to abandon its blanket use of the "hypothetical federal felony" test and to defer to the interpretation of "drug trafficking crime" given by each regional circuit. See Matter of Yanez, 23 I. & N. Dec. 390, 2002 WL 993589 (BIA 2002).

Because the Seventh Circuit has not yet decided whether "drug trafficking crimes" include state felonies punishable only as misdemeanors under federal law, the BIA decided Yanez's case using the majority circuit rule—that a state-law drug felony is a "drug trafficking crime"—and found that each of Yanez's possession convictions was therefore an aggravated felony, making him ineligible for discretionary relief.

On the basis of its holding in Matter of Yanez, the BIA proceeded to decide a number of cases involving aliens convicted of state-felony drug crimes, including the case of petitioner Nir Masok. Like Yanez, Masok had pleaded guilty in Illinois to simple possession of cocaine. Removal proceedings were instituted, at which Masok conceded removability and attempted to seek cancellation of removal. This was foreclosed by the IJ's determination that Masok's Illinois conviction was punishable under federal law as a felony, due to an earlier conviction under Georgia law for possession of marijuana. When Masok disputed this conclusion on appeal, the BIA resolved the case by finding, under Yanez, that Masok's Illinois conviction alone rendered him an aggravated felon and ineligible for cancellation.

We are now asked to decide whether we agree with this "state-law felony" test, or whether we instead endorse the older "hypothetical federal felony" test. But there is a threshold problem: it is not clear that we have...