Rashid v. Mukasey (6th Cir. 6/26/08)

GILMAN, Merritt, Clay

The 6th Cir found that a second or subsequent drug possession offense is not an aggravated felony. 

"The ultimate problem with the conclusions of the Seventh Circuit in Pacheco-Diaz, the Fifth Circuit in Cepeda-Rios, and the IJ and the BIA in the present case is that, as Rashid aptly explains, they 'added a hypothetical to a hypothetical.' The first and only hypothetical that should be considered under the 'hypothetical federal felony approach' is whether the crime that an individual was actually convicted of would be a felony under federal law. But by looking to facts not at issue in the crime of conviction in order to determine whether an individual could have been charged with a federal felony, our sister circuits, the IJ, and the BIA have considered an impermissible second hypothetical."

Rejecting United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007); United States v. Cepeda-Rios, ___ F.3d ___, No. 07-50731, 2008 WL 2266996 (5th Cir. June 4, 2008) - accord, Berhe v. Gonzales, 464 F.3d 74 (1st Cir. 2006), Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001).

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