TEXAS CONTROLLED SUBSTANCE CONVICTION NOT AN "AGGRAVATED FELONY"

BIA: TEXAS CONTROLLED SUBSTANCE CONVICTION NOT AN "AGGRAVATED FELONY" (MATTER OF K-V-D-)
Immigrants’ Rights Update, Vol. 13, No. 8, December 28, 1999

The Board of Immigration Appeals has issued a precedent decision finding that a Texas conviction for simple possession of a controlled substance is not an "aggravated felony" under immigration law, even though the conviction constitutes a felony under Texas law. In reaching its decision, the BIA found that it was not bound by Fifth Circuit precedent interpreting the "drug trafficking crime" element of the "aggravated felony" definition of the Immigration and Nationality Act for purposes of enhancing criminal sentences, because that precedent did not concern the implementation of immigration law. The BIA concluded that, in order to constitute a conviction for an aggravated felony under the INA, a state felony conviction involving a controlled substance offense must be for a crime that would be punishable as a felony under federal law.

The respondent in this case is a national of Vietnam who has been a lawful permanent resident of the United States since 1987. In 1992 he pled guilty to a charge of simple possession of a controlled substance, namely, less than 28 grams of cocaine. He was placed on probation, and the adjudication of the charge was deferred. However, on Dec. 2, 1997, he was sentenced to five years in prison for failing to report to his probation officer, and the deferred adjudication was nullified. Under Texas law, the respondent’s conviction for a violation of Texas Health and Safety Code section 481.115(d) is classified as a second degree felony.

The Immigration and Naturalization Service issued the respondent a notice to appear for removal proceedings, charging him with being removable both for a controlled substance conviction and an aggravated felony conviction. The immigration judge in the removal proceeding concluded that the conviction constitutes an aggravated felony, relying on the Fifth Circuit’s decisions in United States v. Hinojosa-Lopez,130 F.3d 691 (5th Cir. 1997), and United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. 1997). Those cases concern the application of criminal sentence enhancement under the United States Sentencing Guidelines, which reference INA section 101(a)(43)(B). That section, in turn, defines "aggravated felony" (in the immigration context), and it provides that a "drug trafficking crime" is an aggravated felony.

On appeal, the BIA concluded that the above-cited Fifth Circuit decisions are not controlling in this case, because those cases concerned a completely different issue. The BIA noted that while several other circuits have also interpreted section 101(a)(43)(B) in the criminal sentence enhancement context, they have expressly noted that a different interpretation may apply in the immigration law context. See, e.g., United States v. Briones-Mata, 116 F.3d 308, 309–10 (8th Cir. 1997); United States v. Restrepo-Aguilar, 74 F.3d 361, 366 (1st Cir. 1996). Moreover, the Second Circuit, which is the only circuit that has interpreted the statute for both sentence enhancement and immigration purposes, reached different conclusions regarding what constitutes a "felony" in the two contexts. Compare United States v. Polanco, 29 F.3d 35 (2d Cir. 1994) (interpreting statute for purposes of sentence enhancement), with Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996) (following the BIA’s decision in Matter of L-G-, 21 I. & N. Dec. 89 (BIA 1995) in interpreting the statute for immigration purposes); see also United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 199{??}), cert. denied, 120 S.Ct. 191 (1999) (reaffirming and explaining the circuit’s differing interpretations in the sentence enhancement and immigration law contexts). The above-cited Fifth Circuit cases relied on the reasoning of these cases, which expressly distinguished between the sentence enhancement context and the BIA’s well established precedent in the immigration law context.

The BIA concluded that its prior decisions, most recently set forth in Matter of L-G-, continue to apply in the immigration context, notwithstanding the Fifth Circuit decisions regarding sentence enhancement. Under Matter of L-G-, a state felony conviction for a controlled substance offense constitutes a "felony" for purposes of the "aggravated felony" definition only if the offense would be punishable as a felony under federal law. The BIA noted that this interpretation serves the important policy of ensuring the uniform application of federal immigration law.

The BIA concluded that since the respondent’s conviction for simple possession of cocaine did not specifically indicate that he was in possession of more than five grams of cocaine base, his offense would constitute a misdemeanor under federal law. Therefore, his conviction does not constitute conviction of an "aggravated felony," and he is eligible for the relief of cancellation of removal. The BIA sustained the appeal and remanded the case to the immigration judge for further proceedings.

Matter of K-V-D-, Int. Dec. 3422 (BIA, Dec. 10, 1999).