Alsol v. Mukasey; Powell v. Mukasey (2d Cir. 11/14/08, nos. 07-2068-ag(L), 08-1942-ag(CON), 08-1112-ag)

STRAUB, Calabresi, Raggi

Petitioners Alsol and Powell sought review of the Board’s decisions vacating the IJs’ grants of LPR cancellation of removal on the grounds that their second simple drug possession conviction constituted an aggravated felony that rendered them ineligible for cancellation.  The 2d Circuit granted review and vacated the Board’s decisions, joining the 1st, 3rd and 6th  The court also clarified that its sentencing decision in U.S. v. Simpson, 319 F.3d 81 (2d Cir. 2002), does not foreclose this holding as the language in that decision was dicta. Circuits to hold that a second possession conviction is not an ag fel simply because it could have been prosecuted as a recidivist offense under 21 USC § 844(a).

Pointing particularly to the Sixth Circuit’s similar decision in Rashid v. Mukasey, 531 F.3d 438, and Judge Rovner’s dissent in Fernanez v. Mukasey (7th Cir. Sept. 15, 2008), the 2d Circuit rejected the “could have been charged as a recidivist” argument made by the gvt and adopted by the 5th and 7th Circuits:

“We now join the First, Third, and Sixth Circuits in holding that a second simple drug possession conviction is not an “aggravated felony” as that term is defined in 8 U.S.C. § 1101(a)(43)(B). As noted, under Lopez, “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.” 127 S. Ct. 625, 633 (2006). Lopez, however, does not stand for the proposition that a state offense is a felony punishable under the CSA if it could have been charged as a recidivist state offense that would then be punishable as a federal felony; rather, Lopez stands for the proposition that a state offense of conviction that is punishable as a federal felony is an aggravated felony.”

Further:

“The requirement that an alien be convicted of a removable offense before suffering the consequences under immigration law is precisely what Lopez requires. Under Lopez, an offense that could have been prosecuted -- not necessarily resulting in conviction -- as a recidivist offense is not an offense punishable as a federal felony. The INA and Lopez require an actual conviction for an offense that proscribes conduct that is punishable as a federal felony, not a conviction that could have been obtained if it had been prosecuted.”

The court also directly addressed the 7th Circuit’s contrary decision in Fernandez:

“Thus, the Seventh Circuit found that because the recidivist enhancement available here is not an element of the crime, a broad inquiry into the petitioner’s underlying conduct is permitted. See Fernandez v. Mukasey, Nos. 06-3476, 06-3987, 06-3994, __ F.3d __, 2008 WL 4193005, at *7, *10 (7th Cir. Sept. 15, 2008). However, nothing in the applicable statutes or Lopez allows the BIA to abandon the requirement that petitioner’s status as an aggravated felon be based on an actual conviction simply because the categorical approach may not easily fit this situation. This is why we part ways with the Seventh Circuit. The Seventh Circuit’s decision, we believe, focuses improperly on “the conduct reflected in the state convictions, as opposed to the precise state crime charged.” Fernandez, __ F.3d __, 2008 WL 4193005, at *5 (citation omitted).”

In a footnote, the court also noted:

“The relevant statutes give the defendant a range of procedural safeguards, such as the right to a separate proceeding to litigate recidivism and the ability to raise certain collateral challenges, see 21 U.S.C. § 851, that arguably make the recidivist enhancement more than an element. The fact that a defendant is entitled to proof beyond a reasonable doubt suggests that recidivism might be analytically closer to an element of the offense than the Seventh Circuit suggests.”

The court found the Board’s holding in Carachuri-Rosendo, requiring that the alien’s status as a recidivist drug possessor have been admitted or determined by a court or jury within the prosecution for the second dug crime, best serves the requirement that petitioner’s status as an ag fel be based on an actual conviction.

Again quoting Judge Rovner’s dissent in Fernandez: 

“We simply hold that, in these particular and unique circumstances, whatever petitioner was convicted of under state law must correspond with the crime of recidivist possession under the CSA. As Judge Rovner explained, “petitioners . . . would have been subject to the increased penalty only if they had been charged as repeat offenders under 21 U.S.C. § 851. And that is a big ‘if.’ After all, they were not charged as repeat offenders in state court.” Fernandez, __ F.3d __, 2008 WL 4193005, at *14 (Rovner, J.,dissenting).”

The court also pointed out the several anomalies that adopting Carachuri-Rosendo avoids:

(1) in the context of federal drug crimes, it avoids having a federal misdemeanor be considered a federal felony on the ground that the defendant could have been prosecuted as a recidivist,

(2) it avoids a state possession conviction being considered a federal recidivist felony even when the state explicitly elected not to pursue a recidivist conviction,

(3) if one who was not convicted as a recidivist faced removal as a recidivist, the IJ would have to determine, for the first time, that an alien was a recidivist, which would be inappropriate both because the IJ is not an expert in criminal law and because an alien cannot challenge the validity of a prior conviction in removal proceedings.

Finally, the court clarified that the discussion of whether a simple possession conviction constituted an ag fel in the sentencing decision U.S. v. Simpson is dicta and thus not controlling.  There, Simpson had already pleaded guilty to illegal reentry as an ag fel, and he had been convicted of three marijuana sale crimes in addition to his possession offense. 

“The discussion of recidivist possession was not necessary to the analysis because Simpson admitted he was an aggravated felon and the three marijuana-sale convictions by themselves rendered the eight-level enhancement for an aggravated felony applicable three times over. Thus, the discussion of Simpson’s possession conviction was not necessary to our holding and dictum.”

In a footnote, the court noted that it need not decide whether “aggravated felony” must have the same meaning in immigration cases as it has in sentencing since the relevant portion of Simpson was dictum.

Petitions for review GRANTED, decisions of the BIA VACATED and cases REMANDED.

Attys for Petitioners:

Tori T. Kim, Cutler Pickering Hale and Dorr LLP (Christopher J. Meade, on the brief), New York, NY, for petitioner Alsol.

Alina Das, NYU Immigrant Rights Clinic, Washington Square Legal Services, Inc. (Nancy Morawetz, on the brief), New York, NY, for petitioner Powell.

Sameer M. Ashar, Andrea Siebert-Llera, Ron Cerreta, Main Street Legal Services, Inc., CUNY School of Law, Flushing, NY, on the brief, formerly for petitioner Powell.

Amicus Curiae:

Joanne Macri, Manuel D. Vargas, for NYSDA, Immigrant Defense Project, New York, NY.

Read opinion here.

Related decisions in other circuits:   

Finding that a second possession conviction IS NOT an aggravated felony:

Berhe v. Gonzales, 464 F.3d 74 (1st Cir. 2006);

Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001);

Rashid v. Mukasey, 531 F.3d 438 (6th Cir. 2008).

Finding that a second possession conviction IS an aggravated felony:

United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. 2008) (per curiam) (following United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005));

United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007), reh’g denied, 513 F.3d 776 (7th Cir. 2008) (per curiam).

Fernandez v. Mukasey, Nos. 06-3476, 06-3987, 06-3994, __ F.3d __, 2008 WL 4193005 (7th Cir. Sept. 15, 2008)

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