CUELLAR

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Matter of Roberto CUELLAR-Gomez, Respondent

Decided July 18, 2012

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A formal judgment of guilt of an alien entered by a municipal court is a “conviction”

under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(48)(A) (2006), if the proceedings in which the judgment was entered were

genuine criminal proceedings. Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA 2008),

and Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), followed.

(2) A Wichita, Kansas, municipal ordinance which recapitulates a Kansas statute

prohibiting marijuana possession is a “law or regulation of a State . . . relating

to a controlled substance” under section 237(a)(2)(B)(i) of the Act, 8 U.S.C.

§ 1227(a)(2)(B)(i) (2006).

(3) Possession of marijuana after a prior municipal ordinance conviction for marijuana

possession in violation of former sections 65-4162(a) and (b) of the Kansas Statutes

Annotated is an aggravated felony under section 101(a)(43)(B) of the Act by virtue of its

correspondence to the Federal felony of “recidivist possession,” 21 U.S.C. § 844 (2006),

provided the prior conviction was final when the second offense was committed. Lopez

v. Gonzales, 549 U.S. 47 (2006), followed; Carachuri-Rosendo v. Holder, 130 S. Ct.

2577 (2010), and Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007),

distinguished.

FOR RESPONDENT: Rosana Kit Wai Cheung, Esquire, and Jennifer L. Cohen, Esquire,

Los Angeles, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Charles Fillinger and Justin

Howard, Assistant Chief Counsel

BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.

PAULEY, Board Member:

In a decision dated July 18, 2011, an Immigration Judge ordered

the respondent removed from the United States as an alien convicted

of an aggravated felony and a controlled substance violation under

sections 237(a)(2)(A)(iii) and (B)(i) of the Immigration and Nationality Act,

8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i) (2006), respectively. Both charges

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of removability were based in part on a judgment entered by a Wichita,

Kansas, municipal court, finding the respondent guilty of violating a city

ordinance prohibiting marijuana possession. The respondent has appealed,

arguing that the Wichita judgment is not a valid predicate for either removal

charge. The Department of Homeland Security (“DHS”) opposes the appeal.

The respondent’s appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of El Salvador, who was admitted

to the United States on April 4, 1992, as a lawful permanent resident.

On January 3, 2008, a municipal court in Wichita, Kansas, found the

respondent guilty of possessing marijuana in violation of section 5.26.010

of the Wichita, Kansas, Code of Ordinances, a misdemeanor for which he was

sentenced to 60 days in jail and ordered to pay a $100 fine. On September 29,

2008, a Kansas district court found the respondent guilty of possessing

marijuana after a prior municipal ordinance conviction for marijuana

possession, a felony violation under sections 65-4162(a) and (b) of the Kansas

Statutes Annotated, for which he was sentenced to a 10-month term

of imprisonment plus probation on December 4, 2008.1

Based on these convictions, the DHS initiated removal proceedings

by filing a notice to appear charging the respondent with deportability

under section 237(a)(2)(A)(iii) of the Act, as an alien convicted

of an “aggravated felony,” and section 237(a)(2)(B)(i), as an alien convicted

of a “violation of . . . any law or regulation of a State . . . relating

to a controlled substance . . . , other than a single offense involving possession

for one’s own use of thirty grams or less of marijuana.”

Specifically, the DHS alleged that the respondent’s conviction under

sections 65-4162(a) and (b) of the Kansas Statutes Annotated was for a “drug

trafficking crime” under 18 U.S.C. § 924(c) (2006)—and, by extension,

an aggravated felony under section 101(a)(43)(B) of the Act, 8 U.S.C.

§ 1101(a)(43)(B) (2006)—because it corresponds to “recidivist possession,”

a felony punishable under the Federal Controlled Substances Act (“CSA”)

at 21 U.S.C. § 844(a) (2006). The DHS also maintained that each of the

respondent’s convictions was for a violation of the law of a State relating

to a controlled substance under section 237(a)(2)(B)(i) and that the existence

of two such convictions precluded the respondent from qualifying for the

1

Section 65-4162(a) was subsequently repealed and replaced, along with many other

Kansas statutes. In this opinion, all pertinent citations are to the version of the Kansas

Statutes Annotated that was in effect when the respondent committed his offenses.

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exception to deportability available to aliens convicted of a “single offense”

involving simple possession of 30 grams or less of marijuana. The

Immigration Judge sustained both charges of removal.

On appeal the respondent contends that the January 2008 judgment arising

from his Wichita municipal court proceedings is not a valid predicate for either

charge of removability and that his September 2008 conviction under sections

65-4162(a) and (b) of the Kansas Statutes Annotated is insufficient, standing

alone, to establish his removability. The respondent challenges the DHS’s

reliance on his Wichita judgment by means of several distinct arguments.

First, he asserts that the Wichita judgment is not a “conviction” within the

meaning of section 101(a)(48)(A) of the Act. Alternatively, he maintains that

even if the Wichita judgment is a “conviction” for immigration purposes,

it does not support the section 237(a)(2)(B)(i) charge because it was for

violation of a municipal ordinance rather than “any law or regulation

of a State.” Finally, the respondent contends that his Wichita judgment does

not support the aggravated felony charge because it is not a valid predicate for

a recidivist enhancement under 21 U.S.C. § 844(a). Both parties have filed

briefs, and on March 7, 2012, a three-member panel of the Board heard oral

argument.

II. ANALYSIS

A. Wichita Judgment as a “Conviction” Under

Section 101(a)(48)(A) of the Act

At the outset, we conclude that the judgment of guilt entered against the

respondent in January 2008 by the Wichita municipal court is a “conviction”

under the plain language of section 101(a)(48)(A) of the Act because

it is “a formal judgment of guilt of the alien entered by a court.”

The respondent does not dispute either that the Wichita municipal court

entered a formal judgment of guilt against him or that it is a “court” within the

meaning of the Act. Instead, he maintains that the Wichita court’s judgment

should be discounted for immigration purposes because the proceedings

in which it was entered did not afford him all of the constitutional rights that

defendants are entitled to in genuine criminal proceedings. We disagree.

Under our precedents, a formal judgment of guilt entered by a court

qualifies as a conviction under section 101(a)(48)(A) so long as it was entered

in a “genuine criminal proceeding,” that is, a proceeding that was “criminal

in nature under the governing laws of the prosecuting jurisdiction.”

Matter of Rivera-Valencia, 24 I&N Dec. 484, 486-87 (BIA 2008) (quoting

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Matter of Eslamizar, 23 I&N Dec. 684, 688 (BIA 2004)) (internal quotation

marks omitted). The respondent’s proceedings in Wichita municipal court fit

that description.

In Kansas, municipal court judges have authority to enter judgments

of guilt in marijuana possession cases and to impose fines or order the

incarceration of defendants against whom judgments of guilt are entered. See

Kan. Stat. Ann. §§ 12-4104(a)(5), 12-4106 (West 2008). In municipal court

criminal cases, moreover, “[t]he issue before the court upon trial is whether the

prosecution has sustained its burden to prove the charge beyond a reasonable

doubt.” City of Overland Park v. Povirk, 941 P.2d 369, 371 (Kan. 1997).2

Furthermore, under Kansas’ sentencing laws a judgment of guilt entered

by a municipal court is considered a valid conviction for purposes

of calculating the defendant’s criminal history. See Kan. Stat. Ann. § 21-4710,

21-4711 (West 2008); see also State v. Vega-Fuentes, 955 P.2d 1235 (Kan.

1998). Under the circumstances, it is evident that the respondent’s Wichita

judgment was entered in a “genuine criminal proceeding” under the laws of the

State of Kansas.

The respondent argues that the Wichita proceedings were not genuine

criminal proceedings because they did not afford him an “absolute right

to be represented by counsel,” as required by the Sixth and Fourteenth

Amendments to the United States Constitution. As the respondent explains,

the Wichita Municipal Code provides for the appointment of counsel at public

expense only if the judge determines that the defendant stands in jeopardy

of incarceration and is financially unable to retain his own lawyer. See

Wichita, Kan., Code of Ordinances §§ 1.04.065, 1.04.210 (2012); see also

Kan. Stat. Ann. § 12-4405 (West 2008) (“If the municipal judge has reason

to believe that if found guilty, the accused person might be deprived of his

or her liberty and is not financially able to employ counsel, the judge shall

appoint an attorney to represent the accused person.”) In the respondent’s

view, these limitations on the right to counsel are more restrictive than those

that apply in criminal cases before the Kansas district courts. The respondent’s

argument is based on a misconception.

Despite the respondent’s assertion to the contrary, there is no “absolute”

right to appointed counsel in misdemeanor prosecutions, whether in the Kansas

district courts, the Wichita municipal courts, or elsewhere. State v. Allen,

20 P.3d 747 (Kan. 2001). The constitutional right to appointed counsel applies

only to defendants who are unable to retain counsel of their own; with a few

2

In Matter of Eslamizar, 23 I&N Dec. at 687-88, we held that a judgment of guilt entered

in an Oregon “violation” proceeding was not a “conviction” for immigration purposes

because the prosecution in such a proceeding was required to prove the guilt of the accused

by a mere preponderance of the evidence.

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exceptions not applicable here, defendants who can afford to hire their own

lawyers are not entitled to representation at public expense. United States

v. Kahan, 415 U.S. 239, 243 (1974); State v. Zimmer, 426 P.2d 267, 272 (Kan.

1967). Moreover, even indigent defendants have a constitutional right

to appointed counsel only if they face the prospect of imprisonment in the

event of conviction. See Alabama v. Shelton, 535 U.S. 654 (2002); Scott

v. Illinois, 440 U.S. 367 (1979). Accordingly, the Wichita municipal courts’

practice of providing counsel only to indigent defendants who face possible

incarceration is consistent with the Constitution and is also consistent with

general criminal practice in the Kansas district courts. State v. Youngblood,

206 P.3d 518 (Kan. 2009) (following Alabama v. Shelton, 535 U.S. 654, and

holding that indigent defendants charged with misdemeanors in district court

have a right to appointed counsel only if conviction places them in jeopardy

of imprisonment); see also State v. Long, 203 P.3d 45, 48-49 (Kan. Ct. App.

2009).

The respondent also contends that his municipal court proceedings were

not genuinely “criminal” because they did not afford him the right to a jury

trial. Again, we disagree. Kansas, like numerous other States, has a two-tier

system for the trial of municipal ordinance violations. In Kansas, such

violations are first tried to a municipal court judge, sitting without a jury. Kan.

Stat. Ann. § 12-4502 (West 2008). If the municipal court finds the defendant

guilty, the defendant then has a constitutional and statutory right to appeal

to a State district court for a trial de novo before a jury. Kan. Stat. Ann.

§ 22-3609(4) (West 2008); see also City of Wichita v. Bannon, 154 P.3d 1170,

1173 (Kan. Ct. App. 2007) (holding that a defendant being tried for

a municipal ordinance violation that is punishable by a term of imprisonment

of more than 6 months has a constitutional and statutory right to a trial

by jury). The Supreme Court has held that a two-tier system virtually identical

to that applied in Kansas did not violate the accused’s constitutional right

to a jury trial. See Ludwig v. Massachusetts, 427 U.S. 618, 625-28 (1976).

The United States Court of Appeals for the Tenth Circuit has also specifically

upheld the Kansas two-tier procedure in the face of a constitutional challenge.

M.S. News Co. v. Casado, 721 F.2d 1281, 1294 (10th Cir. 1983). Since the

respondent had a right to a trial de novo in State district court, his bench trial

in Wichita municipal court qualified as a genuine criminal proceeding.

Finally, the respondent argues that his Wichita conviction was

unconstitutional because he was not provided with counsel or advised by the

municipal court that the conviction might result in serious immigration

consequences. See Padilla v. Kentucky, 130 S. Ct. 1473 (2010). However,

it is well settled that the Immigration Judges and this Board cannot entertain

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collateral attacks upon State court judgments. E.g., Waugh v. Holder, 642 F.3d

1279, 1282-83 (10th Cir. 2011); Margalli-Olvera v. INS, 43 F.3d 345, 355 (8th

Cir. 1994); Matter of Madrigal, 21 I&N Dec. 323, 327 (BIA 1996). If the

respondent believes his Wichita conviction is unconstitutional, then his remedy

is to seek postconviction relief in the Kansas courts. The conviction remains

effective for immigration purposes, however, unless and until it is vacated

by a court of competent jurisdiction. See Matter of Madrigal, 21 I&N Dec.

at 327.

In sum, we conclude that the Wichita municipal court proceedings

at issue here were “genuine criminal proceedings” within the meaning of our

precedents. The judgment of guilt resulting from those proceedings

is therefore a “conviction” under section 101(a)(48)(A) of the Act.3

B. Removability Under Section 237(a)(2)(B)(i) of the Act

Having determined that the respondent’s Wichita judgment

is a “conviction” for immigration purposes, we must now decide whether

it is a valid predicate for the removal charges. We begin with the charge under

section 237(a)(2)(B)(i) of the Act, which provides in relevant part that an alien

is removable if he is “convicted of a violation of . . . any law or regulation

of a State . . . relating to a controlled substance.” According to the respondent,

his Wichita conviction cannot support such a charge because it was for

violating a municipal ordinance rather than a “law or regulation of a State.”4

We disagree.

Wichita is a political subdivision of the State of Kansas, formed by charter

from the State and delegated the autonomous authority to administer

the State’s local affairs. See Kan. Const. art. 2, § 21 (“The legislature

may confer powers of local legislation and administration upon political

3

In so concluding, we do not purport to address municipal or local judgments other than the

particular Wichita judgment before us. Because such judgments vary widely across

jurisdictions, each must be examined on its own merits to determine whether it was entered

in a “genuine criminal proceeding.”

4

As noted previously, the respondent also sustained a September 2008 conviction for

marijuana possession under sections 65-4162(a) and (b) of the Kansas Statutes Annotated.

There is no dispute that this conviction was for “a violation of . . . any law . . . of a State . . .

relating to a controlled substance,” but as the respondent correctly points out, the record

does not reflect the quantity of marijuana he was convicted of possessing. Thus, unless the

respondent’s Wichita conviction is also a valid predicate for a section 237(a)(2)(B)(i)

charge, we cannot discount the possibility, although we do not decide the issue, that he falls

within the exception to deportability applicable to aliens convicted of “a single offense

involving possession for one’s own use of thirty grams or less of marijuana.” (Emphasis

added.)

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subdivisions.”). Like other municipalities, Wichita is not an independent

sovereign, but rather a “subordinate governmental instrumentalit[y] created

by the State to assist in the carrying out of state governmental functions.”

Reynolds v. Sims, 377 U.S. 533, 575 (1964); see also City of Columbus v. Ours

Garage & Wrecker Service, Inc., 536 U.S. 424, 437 (2002) (recognizing that

“local governmental units are created as convenient agencies for exercising

such of the governmental powers of the State as may be entrusted to them in its

absolute discretion” (quoting Wisconsin Public Intervenor v. Mortier, 501 U.S.

597, 607-08 (1991)) (internal quotation mark omitted)); State ex rel.

Kline v. Unified Bd. of Comm’rs of Unified Government of Wyandotte

County/Kansas City, 85 P.3d 1237, 1247 (Kan. 2004) (“Under our form

of state government, the State is sovereign and cities have no inherent power

except as granted by the State.”). The status of municipalities as subordinate

instrumentalities of State power is clearly reflected in several lines

of constitutional jurisprudence. For instance, double jeopardy principles forbid

a State prosecutor from bringing criminal charges against a defendant who has

already been tried for the same conduct in a municipal court. See Waller

v. Florida, 397 U.S. 387, 393-95 (1970).5

We conclude that the ambiguous reference in section 237(a)(2)(B)(i)

to “any law or regulation of a State” most naturally encompasses laws

promulgated by a State through its political subdivisions. Cf. Wisconsin Public

Intervenor v. Mortier, 501 U.S. at 608 (holding that a Federal statute that

exempted the “States” from Federal preemption in the regulation of pesticides

implicitly exempted political subdivisions of the States as well, noting that

“[t]he exclusion of political subdivisions cannot be inferred from the express

authorization to the ‘State[s]’ because political subdivisions are components

of the very entity the statute empowers”). Section 5.26.010 of the Wichita

Code of Ordinances is thus “a law or regulation of a State” under section

237(a)(2)(B)(i) of the Act because it is an expression of the organic sovereign

power of the State of Kansas.6

5

Likewise, the Supremacy Clause of the Constitution, which makes Federal law the

supreme law of the land as against “the Constitution or Laws of any State,” applies with

equal force to laws enacted by political subdivisions of the States. U.S. Const. art. VI, cl.2

(emphasis added); see also, e.g., Wisconsin Public Intervenor v. Mortier, 501 U.S. at 605;

Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985).

6

The Act does not define the term “State,” except to specify that the term “includes” the

District of Columbia, Puerto Rico, Guam, the Virgin Islands, and the Commonwealth of the

Northern Mariana Islands. Section 101(a)(36) of the Act. Congress does not intend that list

to be exhaustive or exclusive, however, since it uses the term “includes” rather than “means”

and does not list any of the 50 States themselves. Indeed, in Wisconsin Public Intervenor

v. Mortier, 501 U.S. at 606, the Court concluded that the term “State” included political

(continued...)

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Invoking the “Home Rule” Amendment to the Kansas Constitution, see

Kan. Const. art. 12, § 5, the respondent maintains that Wichita ordinances are

independent from Kansas law and that the ordinance in question is no more

a law of the State of Kansas than a Kansas statute is a law of the United States.

We find that argument unpersuasive.

It is true that the “Home Rule” Amendment empowers Kansas

municipalities to enact ordinances that supplement or complement the criminal

laws passed by the State legislature. E.g., City of Wichita v. Hackett, 69 P.3d

621 (Kan. 2003) (upholding a Wichita ordinance criminalizing the operation

of a bicycle while intoxicated, despite the absence of any State statute

prohibiting such conduct, because the ordinance supplemented but did not

conflict with State law). Crucially, however, municipalities cannot pass

ordinances that are preempted by uniformly applicable State criminal laws.

See Kan. Const. art. 12, § 5(b); cf. also City of Junction City v. Cadoret, 946

P.2d 1356 (Kan. 1997) (holding that a city ordinance may not make a third

or subsequent driving under the influence crime a misdemeanor when State

law makes it a felony). The respondent does not suggest, for instance, that the

Home Rule Amendment would allow Wichita to pass an ordinance legalizing

marijuana possession despite the existence of a State statute criminalizing such

conduct.

In our view, a municipal ordinance that supplements or complements the

laws passed by the State Legislature is still a “law . . . of a State” because

it is ultimately an expression of State sovereignty. In any event, the Wichita

ordinance at issue merely recapitulates the generally applicable Kansas law

relating to marijuana possession, so we have no need to decide whether

an alien could be rendered deportable under section 237(a)(2)(B)(i) on the

basis of a municipal conviction for an offense with no analog in the State

criminal code.

We also do not accept the respondent’s argument that Wichita ordinances

stand in the same relationship to Kansas law as Kansas statutes do to Federal

law. Although the Home Rule Amendment gives municipalities substantial

autonomy in regulating their own affairs, Wichita nevertheless remains

a creature of Kansas law; it exists at the pleasure of the State of Kansas and

exercises its authority through a delegation of State sovereignty.

By contrast, under our Federal system, Kansas stands on an equal footing

with the National Government and is sovereign with respect to all matters not

explicitly reserved to the National Government by the Constitution. U.S.

Const. amend. X. Kansas is not a mere creature of Federal law, nor does

(...continued)

subdivisions, even though the statute under review contained a statutory definition

of “State” very similar to that in section 101(a)(36).

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it derive its authority from a delegation of sovereign Federal power.

Heath v. Alabama, 474 U.S. 82, 89 (1985). Thus, as the Supreme Court has

explained, “[T]he apt analogy to the relationship between municipal and state

governments is to be found in the relationship between the government

of a Territory and the Government of the United States,” not in the relationship

between a State government and the National Government. Waller v. Florida,

397 U.S. at 392-93.

The respondent also contends that interpreting the phrase “any law

or regulation of a State” to include municipal ordinances would run afoul

of the presumption that Congress acts deliberately when it “includes particular

language in one section of a statute but omits it in another section of the same

Act.” E.g., Russello v. United States, 464 U.S. 16, 23 (1983) (quoting

United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). In support

of that argument, the respondent points to two provisions of section 237(a)

in which State laws and local laws are referenced in the disjunctive, thereby

suggesting that Congress understands them to be mutually exclusive.

See section 237(a)(2)(E)(i) of the Act (providing for the deportability

of individuals who are convicted of crimes of violence committed “against

a person who is protected from that individual’s acts under the domestic

or family violence laws of . . . any State . . . or unit of local government”);

section 237(a)(6)(A) of the Act (providing for the deportability of “[a]ny alien

who has voted in violation of any Federal, State, or local constitutional

provision, statute, ordinance, or regulation”). According to the respondent,

these specific references to local laws or ordinances give rise to the negative

inference that Congress deliberately omitted such references from the language

of section 237(a)(2)(B)(i). We draw no such inference for several reasons.

First, “The Russello presumption—that the presence of a phrase in one

provision and its absence in another reveals Congress’ design—grows weaker

with each difference in the formulation of the provisions under inspection.”

Clay v. United States, 537 U.S. 522, 532 (2003) (quoting City of Columbus

v. Ours Garage & Wrecker Service, Inc., 546 U.S. at 435-36) (internal

quotation marks omitted). The “provisions under inspection” here—section

237(a)(2)(B)(i) on the one hand and sections 237(a)(2)(E)(i) and(6)(A) on the

other—bear scant resemblance to one another; they pertain to entirely different

subject-matter areas and are grammatically and syntactically dissimilar. Given

these marked differences, we do not consider the language of sections

237(a)(2)(E)(i) and (6)(A) to be a reliable index of the legislative intent

underlying section 237(a)(2)(B)(i).

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Furthermore, the relevant language of section 237(a)(2)(B)(i) was

codified 10 years before the enactment of sections 237(a)(2)(E)(i) and (6)(A).7

It is well settled that “later-enacted laws . . . do not declare the meaning

of earlier law.” Almendarez–Torres v. United States, 523 U.S. 224, 237 (1998)

(“[W]e do not find in [later-enacted laws] any forward looking legislative

mandate, guidance, or direct suggestion about how courts should interpret the

earlier provisions.”) The Russello presumption is at its weakest when the

statutory sections being compared were enacted at different times by different

Congresses. See Gomez-Perez v. Potter, 553 U.S. 474, 486 (2008) (finding the

Russello presumption inapplicable where the statutory sections being

compared pertained to related subject matter but were enacted several years

apart); see also United States v. Boender, 649 F.3d 650, 660-61 (7th Cir. 2011)

(same); United States v. O’Donnell, 608 F.3d 546, 552 (9th Cir. 2010) (same),

cert. denied, 131 S. Ct. 1837 (2011).

Finally, interpreting section 237(a)(2)(B)(i) to encompass municipal

ordinance violations does not render superfluous the specific references

to local laws or ordinances in sections 237(a)(2)(E)(i) and (6)(A). Those latter

provisions were enacted as part of the comprehensive amendments of 1996,

which were designed to be exceedingly broad. See Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, 110

Stat. 3009-546 (“IIRIRA”). There is every reason to believe that the language

of the IIRIRA amendments included specific references to local laws, not

because Congress considered local laws to be distinct from State laws, but

rather because Congress wished to remove all doubt as to the breadth of its

intentions, thereby mitigating the risk that reviewing courts and administrative

adjudicators would construe its language narrowly. See Kawashima v. Holder,

132 S. Ct. 1166, 1174 (2012) (holding that technically redundant language

is not superfluous if it was added to “remove any doubt” as to Congress’

intentions); Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008) (same).

7

The phrase “any law or regulation of a State . . . relating to a controlled substance” was first

introduced into the Act by section 1751(a) of the Anti-Drug Abuse Act of 1986, Pub. L. No.

99-570, 100 Stat. 3207, 3207-47, a statute that dramatically expanded the Federal penalty

scheme for drug offenders. See generally Gozlon-Peretz v. United States, 498 U.S. 395,

401-04 (1991) (discussing the broad scope and enforcement-oriented purpose of the

Anti-Drug Abuse Act of 1986). The legislative history of the Anti-Drug Abuse Act of 1986

does not further explain Congress’ intent in using the phrase “law or regulation of a State”

in section 237(a)(2)(B)(i), and the respondent has not invoked any legislative history

to support his position. Sections 237(a)(2)(E)(i) and (6)(A) were added to the Act pursuant

to sections 350 and 347, respectively, of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-638

to 3009-640 (effective Apr. 1, 1997).

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In light of the foregoing, we conclude that the respondent’s January

2008 Wichita conviction for marijuana possession renders him deportable

as an alien convicted of a violation of any law or regulation of a State relating

to a controlled substance. Section 237(a)(2)(B)(i) of the Act. Because

the respondent also sustained a second marijuana possession conviction

in September 2008, he is not covered by the exception to deportability for

an alien convicted of a “single offense involving possession for one’s own use

of thirty grams or less of marijuana.” Id. Under the plain language of section

237(a)(2)(B)(i) of the Act, two marijuana possession offenses cannot constitute

a “single offense.”

C. Aggravated Felony

The respondent’s deportability under section 237(a)(2)(B)(i) of the Act

is sufficient to carry the DHS’s burden of proving removability. Nevertheless,

it is necessary for us to decide whether the respondent has sustained

an “aggravated felony” conviction, because the existence of such a conviction

would also render him ineligible for cancellation of removal and most other

forms of relief. See, e.g., section 240A(a)(3) of the Act, 8 U.S.C.

§ 1229b(a)(3) (2006).

Section 101(a)(43)(B) of the Act defines the term “aggravated felony”

to include “illicit trafficking in a controlled substance . . . , including a drug

trafficking crime (as defined in section 924(c) of title 18).” In turn, 18 U.S.C.

§ 924(c)(2) defines a “drug trafficking crime” to mean “any felony punishable

under,” inter alia, “the Controlled Substances Act (21 U.S.C. 801 et seq.).”

Interpreting these provisions, the Supreme Court has held that a State

drug offense qualifies as a “drug trafficking crime”—and, by extension,

an aggravated felony—if its elements correspond to or include all the elements

of an offense that carries a maximum term of imprisonment exceeding 1 year

under the Controlled Substances Act (“CSA”). Lopez v. Gonzales, 549 U.S.

47, 56 & n.7, 57 (2006) (“[A] state offense whose elements include the

elements of a felony punishable under the CSA is an aggravated felony.”).8

According to the Immigration Judge, the offense underlying the

respondent’s September 2008 conviction under sections 65-4162(a) and

(b) of the Kansas Statutes Annotated is an aggravated felony because

8

Whether a crime is punishable (or punished) under State law by a term of imprisonment

of more than 1 year is not relevant to the aggravated felony inquiry: “Under the rationale

of Lopez v. Gonzales, [549 U.S. 47], whether a State drug offense is a ‘drug trafficking

crime’ aggravated felony turns solely on its correspondence to a Federal felony, not on how

the State graded the offense.” Matter of Aruna, 24 I&N Dec. 452, 454 (BIA 2008). The

respondent’s appellate argument to the contrary is foreclosed.

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it corresponds to “recidivist possession,” which the CSA punishes as a felony.

See Lopez v. Gonzales, 549 U.S. at 55 n.6 (acknowledging that “state

possession crimes that correspond to felony violations of [the CSA], such

as . . . recidivist possession, clearly fall within the definitions used by Congress

in 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2)” (citation omitted)).

To be precise, 21 U.S.C. § 844(a)—the section of the CSA dealing with simple

possession offenses—states in pertinent part that a person may be sentenced

as a felon “if he commits [a simple possession] offense after . . . a prior

conviction for any drug, narcotic, or chemical offense chargeable under the

law of any State, has become final.”

We have previously determined that a State conviction for simple

possession of a controlled substance cannot qualify as an aggravated felony

conviction by virtue of its correspondence to “recidivist possession” unless

“the alien’s status as a recidivist drug offender was either admitted by the alien

or determined by a judge or jury” in the State criminal proceedings.

Matter of Carachuri-Rosendo, 24 I&N Dec. 382, 391, 394 (BIA 2007) (“[A]

State conviction cannot ‘proscribe conduct punishable as’ recidivist possession

[within the meaning of Lopez v. Gonzales] unless the State successfully sought

to impose punishment for a recidivist drug conviction.”); see also Matter

of Thomas, 24 I&N Dec. 416 (BIA 2007). Upon review, the Supreme Court

agreed, holding that “when a defendant has been convicted of a simple

possession offense that has not been enhanced based on the fact of a prior

conviction, he has not been ‘convicted’ . . . of a ‘felony punishable’ as such

‘under the Controlled Substances Act,’” as required for aggravated felony

treatment. Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2589 (2010).

Despite the foregoing limitations, the Supreme Court has clarified

that “it is still true that recidivist simple possession offenses charged and

prosecuted as such ‘clearly fall’ within the definition of an aggravated felony.”

Carachuri-Rosendo v. Holder, 130 S. Ct. at 2585 n.10 (quoting Lopez

v. Gonzales, 549 U.S. at 55 n.6).9 Thus, the question before us here is whether

9

The Supreme Court “observe[d] that a reading of this statutory scheme that would apply

an ‘aggravated’ or ‘trafficking’ label to any simple possession offense is, to say the least,

counterintuitive and ‘unorthodox.’” Carachuri-Rosendo v. Holder, 130 S. Ct. at 2585

(quoting Lopez v. Gonzales, 549 U.S. at 54 ). We recognize the Court’s point, but we are

obliged to apply the statutory scheme as written.

The Supreme Court found it “unorthodox” that Carachuri would be labeled

an aggravated felon when the conviction under review involved the possession of a “trivial

amount of a prescription drug,” a State law misdemeanor for which he was sentenced

to a mere 10 days in jail. Id. By contrast, the respondent was convicted of a State law

felony involving the possession of a nonprescription drug and was sentenced to 10 months

in jail.

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the respondent has been convicted of a recidivist possession offense that was

“charged and prosecuted as such.” We conclude that he was.

The respondent’s September 2008 conviction under sections 65-4162(a)

and (b) of the Kansas Statutes Annotated resulted from proceedings

in which he was charged and sentenced as a recidivist. Specifically, the

Complaint/Information that commenced those proceedings charged the

respondent as follows:

[O]n or about the 24th day of January, 2008, A.D., in the County of Sedgwick, State

of Kansas, one ROBERTO E. CUELLAR-GOMEZ did then and there unlawfully,

intentionally possess a controlled substance, to-wit: marijuana at . . . Wichita,

Sedgwick County, Kansas, after having been convicted previously of Possession

of Marijuana, on the 3rd day of January, 2008, Case No. 07DR2218, in the City

of Wichita, Kansas Municipal Court.

The Judgment reflects that the respondent entered a plea of guilty, and the

court identified the offense of conviction as “Possession of Marijuana after

Previous Conviction.” Further, for sentencing purposes the court classified the

crime as a severity level 4, nonperson felony, a denomination that was

consistent only with a recidivism finding.

The elements of the respondent’s offense correspond to the elements

of “recidivist possession” under the CSA. Like 21 U.S.C. § 844(a), Kansas

law requires proof beyond a reasonable doubt that possession of a controlled

substance was at least “knowing,” see State v. Washington, 772 P.2d 768,

771 (Kan. 1989), and both the CSA and Kansas law define the concept

of “possession” to encompass actual and constructive possession. Compare

United States v. Cruz, 285 F.3d 692, 697 (8th Cir. 2002), and United States

v. Conway, 73 F.3d 975, 982 (10th Cir. 1995), with State v. Washington,

772 P.2d at 771. Furthermore, the respondent’s Wichita conviction was for

marijuana possession, a “drug, narcotic or chemical offense” under 21 U.S.C.

§ 844(c),10 and the respondent concedes that his subsequent marijuana

possession offense was committed after the Wichita conviction had become

“final” by virtue of the expiration of the statutory appeal period prescribed

by section 22-3609(2) of the Kansas Statutes Annotated.11

10

The phrase “drug, narcotic, or chemical offense” is defined by 21 U.S.C. § 844(c)

to include “any offense which proscribes the possession . . . [of] any substance the

possession of which is prohibited under this subchapter,” a class of substances that includes

marijuana.

11

At the time of the respondent’s January 2008 Wichita conviction, a defendant convicted

of violating a municipal ordinance in Kansas had 10 business days in which to appeal that

conviction as of right for a trial de novo in the district court for the county encompassing

(continued...)

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As the respondent points out, the CSA requires that a defendant charged

with recidivism must be served in advance with an “enhancement information”

specifying the prior convictions to be relied upon. 21 U.S.C. § 851(a) (2006).

Furthermore, a Federal drug defendant charged with recidivism has a right

to challenge the validity of his prior convictions (provided they are reasonably

recent) and to require the Government to come forward with proof of them.

21 U.S.C. § 851(c). As we explained in Matter of Carachuri-Rosendo,

24 I&N Dec. at 391, these requirements provide defendants with “notice and

an opportunity to be heard on whether recidivist punishment is proper,” rights

that we consider to be “part and parcel of what it means for a crime

to be a ‘recidivist’ offense.”

Here, the charge set forth in the Complaint/Information, quoted above,

provided the respondent with pretrial notice that the State government was

seeking a recidivist enhancement against him and also identified the prior

conviction with particularity. Furthermore, Kansas drug defendants who

dispute the existence or validity of prior convictions have a right to challenge

the convictions and to require the government to prove those convictions to the

sentencing judge. Kan. Stat. Ann. § 21-4715 (West 2008); see also State

v. Delacruz, 899 P.2d 1042 (Kan. 1995). The procedures specified by section

21-4715 of the Kansas Statutes Annotated are not as elaborate as those

described in 21 U.S.C. § 851, but they are sufficient to establish that the

respondent had notice that he was facing a recidivist enhancement, as well

as a meaningful opportunity to object to the propriety of such an enhancement

and to put the government to its proof.12

(...continued)

the relevant municipality, with the 10-day period commencing on the date when the

municipal court announced its judgment. Kan. Stat. Ann. §§ 12-4602, 22-3609, 22-3610,

60-206(a)(1) (West 2008); see also City of Derby v. Haskins, 3 P.3d 557 (Kan. Ct. App.

2000); Paletta v. City of Topeka, 893 P.2d 280 (Kan. Ct. App. 1995).

12

We have not required an exact correspondence between State recidivism procedures and

those prescribed by the CSA. See Matter of Carachuri-Rosendo, 24 I&N Dec. at 391

(“It is not necessary . . . for the structure of the underlying State law to be comparable to the

structure of the CSA. Lopez v. Gonzales, [549 U.S. 47], requires a focus on a counterpart

‘offense,’ not a counterpart law.”). Moreover, State recidivism procedures need not

“categorically match” those required by 21 U.S.C. § 851, because the categorical approach

is concerned with establishing a correspondence between the “elements” of State and

Federal offenses. James v. United States, 550 U.S. 192, 202 (2007) (holding that the

categorical approach asks “whether the elements of the [State] offense are of the type that

would justify its inclusion” within a Federal category of crimes); cf. United States

v. Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010) (holding that “[t]he availability

of an affirmative defense is not relevant to the categorical analysis” because

(continued...)

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The respondent’s main argument in opposition to the aggravated felony

charge is similar to that which he advanced in support of his challenge to the

section 237(a)(2)(B)(i) charge. Specifically, the respondent maintains that his

Wichita conviction could not be a valid predicate for a recidivism charge under

the CSA because 21 U.S.C. § 844(a) requires that a prior conviction be for

an offense “chargeable under the law of any State.” According to the

respondent, his Wichita offense does not fit that description because it was

prosecuted as a municipal ordinance violation rather than as a violation

of State law. We do not agree.

Under the plain language of 21 U.S.C. § 844(a), a conviction is a valid

predicate for a recidivist enhancement if it was for an otherwise qualifying

crime that was “chargeable under the law of any State.” We are not aware

of any Federal court decision interpreting that phrase as it appears

in § 844(a).13 In common legal parlance, however, the term “chargeable”

simply means “capable or liable of being charged as a criminal offense.”

Black’s Law Dictionary 249 (8th ed. 2004). Thus, the relevant question under

21 U.S.C. § 844(a) is not whether the respondent was convicted under

a particular State law, but rather whether his offense of conviction was capable

of being charged under such a law.14 In the respondent’s case, the answer

to that question is clearly yes.

Under Kansas law, municipal and State courts have concurrent jurisdiction

over offenses that violate both a city ordinance and a parallel State statute,

(...continued)

an affirmative defense is not an offense “element”), cert. denied, 132 S. Ct. 1727 (2012).

The requirements of 21 U.S.C. § 851 are not “elements” of an offense because they need not

be proven to a jury beyond a reasonable doubt. Accord Jones v. United States, 526 U.S.

227, 232 (1999) (holding that offense “elements must be charged in the indictment,

submitted to a jury, and proven by the Government beyond a reasonable doubt”).

13

The phrase “chargeable under State law” also appears in the RICO statute, 18 U.S.C.

§ 1961(1)(A), which defines “racketeering activity” as “any act or threat involving murder,

kidnapping, [etc.], which is chargeable under State law and punishable by imprisonment for

more than one year.” (Emphasis added.) Courts have interpreted the term “chargeable”

very broadly in the context of that statute, holding that it merely requires the defendant’s

conduct to have been of a type that the State deems criminal in a generic sense, even if the

State would not have permitted the conduct to be prosecuted in a particular case because

of constitutional, procedural, or evidentiary restrictions. E.g., United States v. Coonan,

938 F.2d 1553, 1563-64 (2d Cir. 1991); United States v. Paone, 782 F.2d 386, 393-94 (2d

Cir. 1986).

14

Similarly, a conviction for a local ordinance violation is counted as a valid prior

conviction under the criminal history provisions of the Federal Sentencing Guidelines if the

underlying offense was also a violation of State criminal law. See U.S.S.G. § 4A1.2(c)(2);

see also United States v. Gray, 126 F.3d 1109, 1110-11 (8th Cir. 1997); United States

v. Hooks, 65 F.3d 850, 855 (10th Cir. 1995).

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including misdemeanor marijuana possession offenses. See Kan. Stat. Ann.

§ 12-4104(a)(5). Moreover, a city police officer who arrests a suspect within

city limits has discretion whether to file charges in municipal court or State

district court. E.g., State v. Wright, 995 P.2d 416, 417-18 (Kan. Ct. App.

2000); State v. Frazier, 736 P.2d 956, 957-58 (Kan. Ct. App. 1987). Thus,

even if we assume that a Wichita ordinance is not a “law of any State” within

the meaning of the CSA, the respondent’s offense was nevertheless chargeable

under such a law. Accordingly, we conclude that the respondent’s Wichita

conviction is a valid predicate for a recidivist enhancement under 21 U.S.C.

§ 844(a).

According to the respondent, focusing on whether his offense could have

been charged under State law is impermissible because it is a “hypothetical”

inquiry of the sort proscribed by the Supreme Court in Carachuri-Rosendo

v. Holder, 130 S. Ct. at 2586-89. We find this argument unpersuasive. In that

case, the Government treated Carachuri-Rosendo as if he had been “convicted”

of all the elements of recidivist possession, even though recidivism had never

been alleged or proven in his State trial, simply because a Federal prosecutor

could hypothetically have brought a recidivist possession charge against

a person with his criminal history. From the Supreme Court’s point of view,

the problem with that sort of hypothetical approach is that it “introduces

a level of conjecture” into what should be a “categorical” inquiry, concocting

a “fictional federal felony” out of a defendant’s overall criminal history

and then treating the defendant as if he had been “convicted” of that fictional

offense, even though its elements were never admitted by the defendant

or proven to a jury beyond a reasonable doubt. Carachuri-Rosendo

v. Holder, 130 S. Ct. at 2588; see also Matter of Carachuri-Rosendo,

24 I&N Dec. at 393 (rejecting the “hypothetical” approach because it “would

authorize Immigration Judges to collect a series of disjunctive facts about

the respondent’s criminal history, bundle them together for the first

time in removal proceedings, and then declare the resulting package

to be ‘an offense’ that could have been prosecuted as a Federal felony”).

Here, by contrast, we treat the respondent as “convicted” of only those facts

that were proven beyond a reasonable doubt (or admitted) in his Kansas

criminal proceedings. The respondent was charged, convicted, and sentenced

as a recidivist in Kansas, and whether his prior offense was “chargeable”

under Kansas law is not a “hypothetical” or conjectural question, but rather

a factual and legal one, the answer to which is readily ascertained by reference

to the State’s statutory and decisional law.15

15

We take administrative notice of the content of Kansas law. 8 C.F.R. § 1003.1(d)(3)(iv)

(2012); see also Lamar v. Micou, 114 U.S. 218, 223 (1885) (“The law of any state of the

(continued...)

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In light of the foregoing, we conclude that the respondent stands convicted

of an aggravated felony because the elements of the Kansas offense of which

he was convicted in September 2008 correspond categorically to the elements

of recidivist possession under 21 U.S.C. § 844(a), a Federal felony.

IV. CONCLUSION

In conclusion, the respondent’s January 2008 Wichita conviction provides

a valid factual basis for the removal charges in this matter. Specifically, the

Wichita judgment is a “conviction” under section 101(a)(48)(A) of the Act;

a conviction for “violation of . . . any law or regulation of a State” within the

meaning of section 237(a)(2)(B)(i) of the Act; and a valid predicate for

a recidivist possession charge under 21 U.S.C. § 844(a). Accordingly, because

the respondent is removable as charged and was properly found ineligible for

all requested relief, his appeal will be dismissed.

ORDER: The appeal is dismissed.

(...continued)

Union, whether depending upon statutes or upon judicial opinions, is a matter of which the

courts of the United States are bound to take judicial notice, without plea or proof.”); Saffold

v. McGraw-Edison Co., 566 F.2d 621, 623 (8th Cir. 1977) (same); Parker v. Parker, 82 F.2d

575, 577 (10th Cir. 1936) (same).

866