(D)  Second Offense Simple Possession.  The BIA has held that a second or subsequent conviction of simple possession of a controlled substance that is punishable as a misdemeanor under the state label will not be considered an aggravated felony, even though the offense would be a felony if punished under federal law.[174]  This may be considered the rule in the majority of the circuits, but this opinion is not universal.[175]  

A second or subsequent conviction of simple possession of a controlled substance, other than an amount in excess of five grams of cocaine base or any amount of flunitrazepam, will be considered a misdemeanor conviction in the Ninth Circuit,[176] even if the offense is labeled as a felony in the convicting jurisdiction, since the Ninth Circuit ignores sentence increases based on prior conviction sentence enhancements in determining whether a conviction falls within a ground of deportation.[177]  Therefore, a second or third conviction for simple possession of a controlled substance, under this analysis, constitutes a federal misdemeanor,[178] and cannot constitute an aggravated felony for deportation purposes.[179]

            There is favorable Board of Immigration Appeals authority, as well, on the general question of the irrelevance of sentence enhancements in determining whether a conviction falls within a ground of deportation.  See § 5.63, supra.  This argument can therefore be made in immigration court and in other circuits as well.

           

            Immigration law has developed a rule that a state drug offense must include all of the elements of an offense that would be punished as a felony under the federal statute, in order for the state conviction to be held an aggravated felony as a state analogue to a federal felony.[180]  Therefore, unless a state prosecutor pleaded and proved the prior possession offense in state court, the state-court conviction arguably should not be considered “punishable” as a felony under federal law.[181]

[174] Matter of Elgendi, 23 I. & N. Dec. 515 (BIA Oct. 31, 2002) (en banc) (New York second misdemeanor conviction of possession of marijuana in the fifth degree, in violation of New York Penal Law § 221.10, did not constitute a drug trafficking crime, under 18 U.S.C. § 924(c)(2) (2000), under the Second Circuit test of United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), since state law held these convictions were misdemeanors with a maximum of three months in custody, and conviction was therefore not a drug trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for deportation purposes); Matter of Santos-López, 23 I. & N. Dec. 419 (BIA 2002) (Texas first and second conviction for possession of marijuana, both classified as misdemeanors under Texas law, are not considered felonies within the meaning of 18 U.S.C. § 924(c)(2) or an “aggravated felony” within the meaning of INA 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2000)), following United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert. denied, 122 S.Ct. 305 (2001), and United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997).

[175] United States v. Simpson, 319 F.3d 81 (2d Cir. 2002) (second misdemeanor simple possession conviction under New York law an aggravated felony since the offense would be a felony under federal law).

[176] Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (under federal law, a second possession conviction is not made a “felony” for this purpose by virtue of a recidivist sentence enhancement; court noted that contrary case, United States v. Garcia-Olmedo, had been overruled by en banc decision United States v. Corona-Sanchez).

[177] United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc); United States v. Arellano-Torres, 303 F.3d 1173, 1176 (9th Cir. 2002).

[178] United States v. Ballesteros-Ruiz, 319 F.3d 1101, 1103 (9th Cir. 2003), disapproving United States v. Garcia-Olmedo, 112 F.3d 399 (9th Cir. 1997), and United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. 1998), as having been overruled by United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc).

[179] Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. Jan. 26, 2004); United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona conviction for shoplifting, in violation of Ariz. Rev. Stat. 13-805(I), is not an aggravated felony since the felony sentence is possible only because of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself), citing United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

[180] Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990) (state offense must “include all of the elements of an offense for which an alien ‘could be convicted and punished’ under the cited federal laws”).  Legislative history shows that Matter of Barrett was codified at INA § 101(a)(43)(B), the drug trafficking aggravated felony definition.  Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992); Matter of LG, 21 I. & N. Dec. 89 (BIA 1994).  The exception to this rule is that the state statute need not include the federal jurisdictional element.  Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002).

[181] Steele v. Blackman, 236 F.3d 130 (3d Cir. Jan. 2, 2001) (second New York misdemeanor conviction for distribution of 30 grams or less of marijuana without remuneration was not for a hypothetical offense punishable as a felony under the federal Controlled Substances Act and therefore was not an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for immigration purposes).

Fourth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION SENTENCE - MISDEMEANOR LABEL OVERCOMES MAXIMUM POSSIBLE SENTENCE
United States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. Sept. 6, 2005) (Maryland conviction of misdemeanor simple possession of cocaine, in violation of Md.Code, Art. 27, 287(e), was not an aggravated felony for sentencing purposes, as the state offense is not a felony, even though the offense was punishable by up to four years imprisonment).

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - STATE FELONY CONVICTION OF SIMPLE POSSESSION OF A CONTROLLED SUBSTANCE CONSTITUTED AN AGGRAVATED FELONY TRIGGERING REMOVAL, EVEN THOUGH IT DID NOT DO SO UNDER BIA PRECEDENT IN FORCE AT THE TIME THE PLEA OF GUILTY WAS ENTERED
Salazar-Regino v. Trominski, ___ F.3d ___ (5th Cir. June 30, 2005) (Texas deferred adjudication following guilty plea to felony possession of marijuana constituted a conviction for removal purposes under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), even though it did not constitute grounds for removal under the hypothetical federal felony test dictated by the BIA at the time the plea of guilty was entered, because it would only have constituted a misdemeanor if prosecuted in federal court).
http://caselaw.lp.findlaw.com/data2/circs/5th/0341492p.pdf

Lower Courts of Seventh Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION -- HYPOTHETICAL FEDERAL FELONY RULE
Masok v. Achim, ___ F.3d ___, 2005 WL 1017891 (N.D. Ill. 2005) (Illinois conviction of possession of less than 15 grams of cocaine, in violation of 720 ILCS 570/402(c), which constituted a Class 4 felony under Illinois law, held not convicted of an aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), because the conviction would not have constituted a felony, but only a misdemeanor, if prosecuted under federal law).

Other

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
There is an argument that regardless of any latent ambiguity in the phrase "any felony" in 924(c)(2), under Jerome v. U.S., 318 U.S. 101 (1943), 1101(a)(43)(B) covers only convictions, whether obtained under federal or state law, which would be felonies under 18 U.S.C. 924(c)(2). In Jerome v. U.S., the issue was the meaning of the phrase "any felony" in a federal criminal statute. As the Court held therein, 318 U.S. at 101-2 (internal citations omitted): Sec. 2 (a) of the Bank Robbery Act ... provides in part that "whoever shall enter or attempt to enter any bank, n1 or any building used in whole or in part as a bank, with intent to commit in such bank or building, or part thereof, so used, any felony or larceny, shall be fined not more than $ 5,000 or imprisoned not more than twenty years, or both." Petitioner was indicted under that section for entering a national bank in Vermont with intent to utter a forged promissory note and thereby to defraud the bank. He was convicted after trial before a jury and was sentenced to imprisonment for one year and a day. The utterance of a forged promissory note is a felony under the laws of Vermont ... but not under any federal statute. The Circuit Court of Appeals affirmed the conviction by a divided vote, holding that "felony" as used in 2(a) includes offenses which are felonies under state law. 130 F.2d 514. We granted the petition for a writ of certiorari because of the importance of the problem in the administration of justice and because of the diversity of views which have developed as respects the meaning of "felony" in 2(a). In concluding that the phrase "any felony" presumptively excluded crimes which were felonies under state, but not federal, law, the Court reasoned, id. at 104 (emphasis added): At times it has been inferred from the nature of the problem with which Congress was dealing that the application of a federal statute should be dependent on state law. Examples under federal revenue acts are common. Douglas v. Willcuts, 296 U.S. 1; Helvering v. Stuart, 317 U.S. 154, and cases cited. But we must generally assume, in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law. That assumption is based on the fact that the application of federal legislation is nationwide (United States v. Pelzer, 312 U.S. 399, 402) and at times on the fact that the federal program would be impaired if state law were to control. See also, Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43-44 (1989) (some internal citations omitted) (emphasis added): [T]he general assumption [is] that "in the absence of a plain indication to the contrary, ... Congress when it enacts a statute is not making the application of the federal act dependent on state law." Jerome v. United States, 318 U.S. 101, 104 (1943)... One reason for this rule of construction is that federal statutes are generally intended to have uniform nationwide application. ... Accordingly, the cases in which we have found that Congress intended a state-law definition of a statutory term have often been those where uniformity clearly was not intended... A second reason for the presumption against the application of state law is the danger that "the federal program would be impaired if state law were to control." ... For this reason, "we look to the purpose of the statute to ascertain what is intended." The term "aggravated felony" includes state crimes as a result of the overarching language of 8 U.S.C. 1101(a)(43), not from 18 U.S.C. 924(c)(2). The meaning of 924(c)(2) is thus unaffected by the fact that 1101(a)(43) covers both federal and state crimes. Thanks to Lisa S. Brodyaga