(E)  Due Process Precludes Application of Yanez Retroactively to Pleas Entered in Reasonable Reliance on Prior Rule.  A strong argument exists that the new rule of Yanez-Garcia[528] cannot be applied to a conviction that predated that decision, if the defendant entered the plea in reliance on the state of the law at the time of the plea.  Unlike Matter of Yanez, in which the Board found retroactivity concerns inapplicable and applied a new interpretation to the case at bar, applying the Yanez rule to convictions predating it would be arbitrary and capricious, upsetting settled expectations in a manner that violates the respondent’s right to due process.

 

            Application of the Yanez rule to such a respondent would be arbitrary and capricious in that, pursuant to the analysis in INS v. St. Cyr,[529] the respondent is presumed to have detrimentally relied on his apparent eligibility for a waiver of deportability when s/he entered the plea.  Under Matter of LG,[530] the case governing this issue at the time of the entry of the plea, the respondent’s felony plea to simple possession of a controlled substance was not an aggravated felony. The Supreme Court has held that a change in interpretation made through adjudication may be inappropriate where “some new liability” results from “past actions which were taken in good-faith reliance on Board pronouncements.”[531]  Under Ninth Circuit law, the Board should follow a 5-factor test before applying a new rule (here, that announced in Yanez) to past conduct.[532]

            The five-factor test examines (1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the burden that a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.  The immigration courts erred in failing to apply that test.  Proper application of the test to this situation would lead to a conclusion that the respondent is not deportable for an aggravated felony conviction under the second part of the drug trafficking category.

 

            Application of the five-part test regarding prospective application of new agency interpretations favors the respondent in this situation.  In Yanez, the test disfavored the respondent because he could not have reasonably relied on Matter of LG,[533] which held that a state felony conviction for simple possession was not an aggravated felony for immigration purposes because it would only be a misdemeanor under federal law.  That decision did not resolve the issue of whether a second conviction for simple possession is an aggravated felony for immigration purposes.[534]  Thus, the third factor of the test disfavored the respondent in Yanez but favors the respondent here.

 

            All other factors of the test favor the respondent here as well.  Yanez, in 2002, announced a 180-degree change in interpretation from that set forth in Matter of LG.  In addition, the burden of a retroactive application of the new rule on respondents such as this one, who reasonably relied on Matter of LG, is tremendous.  Because, under Ninth Circuit law, it is arbitrary and capricious to apply the Yanez interpretation to cases governed at the time of the plea by Matter of LG, the court should not apply the Yanez to pleas entered in reasonable reliance on the former rule.[535]

            This argument has been adopted by lower federal courts.[536]

[528] Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002).  See Yanez-Garcia v. Ashcroft, 388 F.3d 280 (7th Cir. Nov. 2, 2004) (dismissing for lack of jurisdiction a petition for review seeking to reverse Board of Immigration Appeals’ decision that single possession offense can qualify as aggravated felony drug trafficking crime).

[529] INS v. St. Cyr, 533 U.S. 289 (2001).

[530] Matter of LG, 21 3 I. & N. Dec. 262 (1994).

[531] NLRB v. Bell Aerospace Co., 416 U.S. 267, 295 (1974).

[532] See Montgomery Ward & Co. v. Federal Trade Commission, 691 F. 2d 1322, 1333 (9th Cir. 1982), adopting and applying the test set forth in Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F. 2d 380, 390 (D.C. Cir. 1972).

[533] Matter of Yanez-Garcia, 23 I. & N. Dec. 390, at 399 (BIA 2002).

[534] Ibid.

[535] Thanks to Lynn Marcus for this analysis.

[536] Gonzalez-Gonzalez v. Weber, Case No. 03-RB-0678 (MJW) (D. Colo. May 22, 2003) (unpublished) (petition for writ of habeas corpus granted holding that a possession conviction could not be considered an aggravated felony, under Yanez, where the defendant relied upon existing law that it was not an aggravated felony at the time of the plea).  Petitioner was represented by Jim Salvator of Lafayette, Colorado.

BIA

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF SIMULATED CONTROLLED SUBSTANCE
Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010) (Texas conviction of delivery of a simulated controlled substance, as defined by 482.001(4) of the Texas Health and Safety Code, is not an aggravated felony drug trafficking offense because federal law does not punish distribution of a non-controlled substance in place of a real controlled substance; the violation is, however, a controlled substances offense for purposes of triggering removability under INA 237(a)(2)(B)).

Third Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " FEDERAL FOOD, DRUG, AND COSMETIC ACT VIOLATIONS
Borrome v. Attorney General of the United States, 687 F.3d 150 (3d Cir. Jul. 18, 2012) (federal conviction for unauthorized wholesale distribution in interstate commerce of prescription drugs, in violation of 21 U.S.C. 331(t), 353(e), is not a drug trafficking aggravated felony).

AGGRAVATED FELONY " DRUG TRAFFICKING " HYPOTHETICAL FEDERAL FELONY TEST " DISTINGUISHED FROM HYPOTHETICAL APPROACH CRITICIZED IN CARACHURI-ROSENDO
Catwell v. Attorney General, 623 F.3d 199, 209, n.11 (3d Cir. Oct. 13, 2010) (Our reference to a hypothetical federal felony in this case differs from the hypothetical approach recently criticized by the Supreme Court in Carachuri-Rosendo v. Holder, --- U.S. ----, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). As directed by the Supreme Court, we look to the proscribe[d] conduct of a state offense to determine whether it is punishable as a felony under federal law, considering both the conviction (the relevant statutory hook), and the conduct actually punished by the state offense. Id. at 2588 (quoting Lopez v. Gonzales, 549 U.S. 47, 60, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006)). While our precedent uses the term hypothetical federal felony, our analysis is not at all hypothetical. Rather, it follows the Supreme Court's direction in Carachuri-Rosendo for determining whether a state offense constitutes a fictional federal felony. For consistency with our precedent, we will continue to use the phrase hypothetical federal felony.).

AGGRAVATED FELONY " DRUG TRAFFICKING " HYPOTHETICAL FEDERAL FELONY " EXCEPTION FOR GRATUITOUS DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA " CATEGORICAL ANALYSIS
Catwell v. Attorney General, 623 F.3d 199, 207 (3d Cir. Oct. 13, 2010) (determination of whether gratuitous distribution of marijuana involved more than small amount was subject to strict categorical analysis).

AGGRAVATED FELONY " DRUG TRAFFICKING " HYPOTHETICAL FEDERAL FELONY " GRATUITOUS DISTRIBUTION OF MARIJUANA " DEFINITION OF SMALL AMOUNT " DISTINCTION BETWEEN PRISON AND NON-PRISON SITUATIONS
Catwell v. Attorney General, 623 F.3d 199, 207 (3d Cir. Oct. 13, 2010) (Very few cases have addressed the question of small amount for purposes of the exception set forth in 21 U.S.C. 841(b)(4). All of the cases we have found specifically discussing small quantities of marijuana involved drug possession in prison. The cases all distinguish between drug possession in or near a prison and drug possession on the street, noting that possessing drugs in prison has more severe consequences than possessing drugs on the street. The amounts involved ranged from 1.256 grams to 17.2 grams. None of these were determined to be a small amount for the purposes of section 841(b)(4).); citing United States v. Carmichael, 155 F.3d 561 (4th Cir.1998) (unpublished table decision) (1.256 grams of marijuana brought into prison is not a small amount since drugs in prison are measured in grams and milligrams not pounds and ounces); United States v. Wheeler, 121 F.3d 702 (4th Cir.1997) (unpublished table decision) (2.86 grams not a small amount); U.S. v. Damerville, 27 F.3d 254 (7th Cir.1994) (17.2 grams of marijuana distributed to inmates is not a small amount)).

AGGRAVATED FELONY " DRUG TRAFFICKING " HYPOTHETICAL FEDERAL FELONY " GRATUITOUS DISTRIBUTION OF MARIJUANA " DEFINITION OF SMALL AMOUNT
The Third Circuit discussed what constitutes a small amount of marijuana, for purposes of making a federal drug-trafficking conviction a misdemeanor: The legislative history of 841(b)(4) provides some guidance on the definition of small amount of marijuana since it, at least, mentions a specific amount at one point. In 1970, when the Senate was considering amending the CSA to include the small amount exception, Senator Ted Kennedy, a co-sponsor of the amendment, observed that [m]any youngsters may be in a situation where they are with friends, where they give a marihuana cigarette or a small quantity of marihuana to one or two others-not professional pushers, not to make a profit, but in a casual and informal way. 116 CONG. REC. 35,555 (1970). Several courts have noted, looking to the legislative history of the statute, that the exception contemplated social sharing situations. United States v. Eddy, 523 F.3d 1268, 1271 (10th Cir.2008) (section 841(b)(4) refers to social sharing of marijuana among friends); United States v. Outen, 286 F.3d 622, 637 (2d Cir.2002) (unspecified amount of marijuana, but court noted the exception applied to the sharing of small amounts of marijuana in social situations). These observations are supported by statements made by Senator Harold Hughes from Iowa, who observed that [t]rafficking provisions should apply to the large distributor, rather than to the person who is only using the drug with his friends. 116 CONG. REC. 35,555 (1970). The comments made during consideration of the amendment lead us to conclude that Congress contemplated and intended small amount to mean the amount of marijuana an individual would be likely to use on a single occasion, in a social setting. In light of Senator Kennedy's remarks, that amount would be no more than one or two marijuana cigarettes, or a few grams of marijuana. This conclusion is consistent with 8 U.S.C. 1227(a)(2)(B)(i), which provides an exception to the controlled substances offense as a basis for removal. The exception exempts someone who possesses 30 grams or less of marijuana from removal, describing this as an exception for personal use. 8 U.S.C. 1227(a)(2)(B)(i). Under the Sentencing Guidelines, one marijuana cigarette is equivalent to .5 grams. U.S.S.G. 2D1.1. Given that criterion, Petitioner possessed the equivalent of 241 marijuana cigarettes, well beyond the single cigarette envisioned by Senator Kennedy and the Congress. We conclude that 120.5 grams is not a small amount, as contemplated by Congress when it enacted the exception. Therefore, Petitioner's conviction did not involve a small amount of marijuana for no remuneration.FN18 The exception created by 841(b)(4) does not apply to him. As a result, Petitioner's conviction was for an aggravated felony, rendering him ineligible for cancellation of removal. Catwell v. Attorney General, 623 F.3d 199, 208-209, 2010 WL 3987664 (3d Cir. Oct. 13, 2010) (footnotes omitted).

Fourth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Maroquin-Bran, 587 F.3d 214 (4th Cir. Nov. 9, 2009) (California conviction for violation of Health & Safety Code 11360(a) is not necessary a "drug trafficking offense" for illegal re-entry sentencing purposes, since the statute of conviction is divisible and includes transportation for personal use); accord, United States v. Medina-Almaguer, 559 F.3d 420, 422-23 (6th Cir. 2009); United States v. Lopez-Salas, 513 F.3d 174, 177-78, 180 (5th Cir. 2008) (per curiam); United States v. Garcia-Medina, 497 F.3d 875, 877 (8th Cir. 2007); United States v. Almazan-Becerra, 482 F.3d 1085, 1089-90 (9th Cir. 2007); cf. United States v. Herrera-Roldan, 414 F.3d 1238, 1240 (10th Cir. 2005); United States v. Madera-Madera, 333 F.3d 1228, 1231-33 (11th Cir. 2003).

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 " DELIVERY OF COCAINE
Sarmientos v. Holder, 742 F.3d 624 (5th Cir. Feb. 12, 2014) (Florida conviction of delivery of cocaine, in violation of Florida Statute 893.13(1)(a)(1)(sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance), is not a categorical aggravated felony drug trafficking offense, since Florida statute does not require knowledge of the illicit nature of the controlled substance, while federal offense requires knowledge of the illicit nature of the substance); see State v. Adkins, 96 So.3d 412, 415"16 (Fla. 2012) (explaining that knowledge of the illicit nature of the controlled substance is no longer an element of the Florida crime that the prosecution must prove beyond a reasonable doubt).

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF COCAINE
Sarmientos v. Holder, 742 F.3d 624 (5th Cir. Feb. 12, 2014) (Florida conviction of delivery of cocaine, in violation of Florida Statute 893.13(1)(a)(1)(sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance), is not a categorical aggravated felony drug trafficking offense, since Florida statute does not require knowledge of the illicit nature of the controlled substance, while federal offense requires knowledge of the illicit nature of the substance); see State v. Adkins, 96 So.3d 412, 415"16 (Fla. 2012) (explaining that knowledge of the illicit nature of the controlled substance is no longer an element of the Florida crime that the prosecution must prove beyond a reasonable doubt).

AGGRAVATED FELONY " DRUG TRAFFICKING " MANUFACTURING
United States v. Reyes-Mendoza, ___ F.3d ___ (5th Cir. Dec. 15, 2011) (California conviction of manufacturing a controlled substance, in violation of Health & Safety Code 11379.6, is not categorically a drug trafficking offense, under USSG 2L1.2 (which includes an offense under . . . state . . . law that prohibits the manufacture . . . of a controlled substance), because the word manufacture has been interpreted more broadly under California law than under the federal Sentencing Guidelines, and there are some acts that would violate Health & Safety Code 11379.6 without qualifying as drug trafficking offenses for purposes of USSG 2L1.2); see United States v. Arizaga-Acosta, 436 F.3d 506, 508 (5th Cir. 2006) (possession of a precursor chemical with intent to manufacture a controlled substance was not a drug trafficking offense for purposes of USSG 2L1.2, and was not substantially equivalent to attempted manufacture of a controlled substance.); United States v. Forester, 836 F.2d 856, 859-61 (5th Cir. 1988) (defendant could not be sentenced for both production of a precursor with intent to manufacture a controlled substance and the attempted manufacture of a controlled substance).

AGGRAVATED FELONY - DRUG TRAFFICKING - SOLICITATION
United States v. Morales-Martinez, ___ F.3d ___, 2007 WL 2255292 (5th Cir. Aug. 8, 2007) (Texas conviction for delivery of controlled substance, in violation of Texas Health and Safety Code 481.112, was not a "drug trafficking offense" within meaning of USSG 16-level enhancement for illegal reentry after deportation, under USSG 2L1.2(b)(1)(A)(i), as neither the statutory language nor the charging document necessitated a finding that defendant committed a drug trafficking offense; Tex. Health & Safety Code 481.002(8) defines "deliver" as "transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia," which is broader than the sentencing definition, which does not include solicitation).

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Garza-Lopez, ___ F.3d __, 2005 WL 1178061 (5th Cir. May 19, 2005) (California conviction for "[t]ransport/sell methamphetamine" under Cal. Health & Safety Code 11379(a) did not constitute conviction of drug trafficking with sentence imposed in excess of 13 months for purposes of triggering a sentence enhancement under USSG 2L1.2(b)(1)(A)(i) (2003), for illegal reentry after deportation, because the statute of conviction is overbroad and prohibits some conduct that does not fall within the Guidelines enhancement definition of drug trafficking offense, and the record of conviction does not narrow the offense of conviction to conduct falling within the enhancement).

Sixth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Medina-Almaguer, 559 F.3d 420 (6th Cir. Mar. 12, 2009) (California conviction of violation of Penal Code 11352(a) ["transport, import ..., sell, furnish, administer, or give away" a controlled substance or to "offer[ ]" to do those things], is divisible for purposes of imposing a 16-level sentence enhancement for illegal reentry because the prior deportation arose from a "drug trafficking offense," within the meaning of USSG 2L1.2(b)(1)(A), since the broad sweep of the California statute covers conduct that comes within the Guideline's definition of a "drug trafficking offense," as well as conduct that falls outside of it, i.e., "transport[ation]" of controlled substances and "offers" to perform the proscribed activities).

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).

Eighth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SALE - CALIFORNIA SALE STATUTE IS OVERINCLUSIVE, INCLUDING BOTH OFFENSES THAT WOULD, AND OTHERS THAT WOULD NOT, TRIGGER THE GUIDELINES SENTENCE ENHANCEMENT
United States v. Garcia-Medina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California conviction of sale or transportation of a controlled substance, in violation of Health & Safety Code 11352(a), is overinclusive and includes both drug trafficking offenses that properly trigger 16-level sentence enhancement for illegal reentry after deportation under USSG 2L1.2(b)(1)(A)(i) (Nov. 2005), and other offenses that do not).

Ninth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE
United States v. Gonzalez-Corn, ___ F.3d ___, 2015 WL 4385278 (9th Cir. Jul. 17, 2015) (federal conviction for possessing marijuana with the intent to distribute, resulting in a sentence exceeding one year, was for an aggravated felony drug trafficking offense, without need to apply the categorical analysis, since the INA specifically incorporates felony violations of the CSA on its face).

CONTROLLED SUBSTANCES " UNLISTED SUBSTANCES AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (Health & S C 11377(a) is not categorically a conviction relating to a federally-listed controlled substance, for purposes of inadmissibility, because it includes at least one substance that is not on the federal list). NOTE: The court found that Health & Safety Code punishes offenses involving "khat (Catha Edulis) and Chorionic gonadotropin (HGC), which are not listed in the federal schedules. See 21 C.F.R. 1308.13 (Schedule III of the CSA).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Morales-Perez, ___ F.3d ___ (9th Cir. May 31, 2006) (federal crime of attempted possession of a controlled substance with intent to sell encompasses the California crime of purchasing cocaine base for purposes of sale, so conviction under California Health and Safety Code 11351.5 for possession or purchase of cocaine base with intent to distribute categorically qualifies as a predicate drug trafficking offense under the federal sentencing guidelines), withdrawing from prior decision United States v. Morales-Perez, 438 F.3d 971 (9th Cir. Feb. 22, 2006). http://caselaw.lp.findlaw.com/data2/circs/9th/0510115p.pdf

Other

CONTROLLED SUBSTANCES " COUNTERFEIT DRUG OFFENSES IN LIEU OF CONTROLLED SUBSTANCES
Practice Advisory, Su Yon Yi and Katherine Brady, Immigrant Legal Resource Center, Burn Statutes and Counterfeit Drug Offenses (2015), see ILRC.org (discussing Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010) (the offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former INA 241(a)(2)(B)(i), 8 U.S.C. 125l(a)(2)(B)(i) (1994))

SAFE HAVEN - SALE OF SIMULATED CONTROLLED SUBSTANCE
There is some risk that since the simulated controlled substances is sold "as" a controlled substance, a court would rule the state law prohibiting it would be a law "related to" a controlled substance.  Such a violation should not be an aggravated felony, however, since the federal counterfeit controlled substances law does not cover sale of flour pretending it is a controlled substance.  See 21 U.S.C. 802(7) ("counterfeit controlled substance" must be a "controlled substance" pretending to be manufactured by someone other than the actual manufacturer), 841(a)(2) (sale, etc. of counterfeit controlled substances prohibited). A "simulated controlled substance" is clearly distinct from a "counterfeit substance" treated in  21 USC 841(a)(2), and not included in the Controlled Substance Act, so it shouldn't be an aggravated felony.      As far as being a crime related to a controlled substance, three circuits have addressed the issue in the context of the USSG guidelines, (which can be distinguished since it uses a different definition).  United States v. Crittenden, 372 F.3d 706, (5th Cir. 2004) (Texas USSG case holds a simulated CS is a controlled substance); United States v. Frazier, 89 F.3d 1501, 1505 (11th Cir. 1996) (same); United States v. Hester, 917 F.2d 1083, 1085 (8th Cir. 1990); but cf. United States v. Peters, 215 F.3d 861, 862 (8th Cir. 2000) ("[Th]e district court determined conspiracy to sell a simulated controlled substance, in this case baking soda, did not qualify as a controlled substance offense under the guidelines and the government does not appeal this determination.").      Thanks to Jonathan Moore for this analysis.