ELGENDI

Cite as 23 I&N Dec. 515 (BIA 2002) Interim Decision #3482

In re Nabil Ahmed ELGENDI, Respondent

File A24 998 596 - New York

Decided October 31, 2002

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

In accordance with authoritative precedent of the United States Court of Appeals for the

Second Circuit in United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), and United

States v. Polanco, 29 F.3d 35 (2d Cir. 1994), an individual who has been convicted twice of

misdemeanor possession of marijuana in violation of New York State law has not been

convicted of an aggravated felony under section 101(a)(43)(B) of the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000).

FOR RESPONDENT: Steven Morley, Esquire, Philadelphia, Pennsylvania

BEFORE: Board En Banc: SCIALABBA, Chairman; DUNNE, Vice Chairman; SCHMIDT,

HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE,

GUENDELSBERGER, GRANT, MOSCATO, MILLER, BRENNAN, OSUNA,

OHLSON, HESS, and PAULEY, Board Members. Concurring Opinion:

ESPENOZA, Board Member.

HESS, Board Member:

In a decision dated November 30, 2001, an Immigration Judge found the

respondent removable as an alien convicted of an aggravated felony on the

basis of his two state convictions for marijuana possession. 1 Therefore, the

Immigration Judge denied the respondent’s application for cancellation of

removal pursuant to section 240A(a)(3) of the Immigration and Nationality

Act, 8 U.S.C. § 1229b(a)(3) (2000). The respondent has appealed from that

decision, arguing that the Immigration Judge erred as a matter of law in

finding that he had been convicted of an aggravated felony. The appeal will

be sustained, and the record will be remanded to the Immigration Judge for

further proceedings.

1

The Immigration and Naturalization Service also charged that the respondent was removable

as an alien convicted of an aggravated felony on the basis of his conviction for attempted

robbery in the second degree under New York law. The Immigration Judge concluded that

this offense did not constitute an aggravated felony. The Service has not appealed from his

conclusion, so we need not address that issue.

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I. FACTUAL HISTORY

The respondent is a native and citizen of Egypt and a lawful permanent

resident of the United States. He has two convictions in the Criminal Court

of New York County, New York, for the offense of criminal possession of

marijuana in the fifth degree, a violation of section 221.10 of the New York

Penal Law: (1) on August 10, 2000, for which he was sentenced to time

served and a 6-month suspension of his driver’s license; and (2) on

November 11, 2000, for which he received a conditional discharge, as well

as a sentence of 5 days of community service and a further 6-month

suspension of his driver’s license. His offenses are classified as class B

misdemeanors under New York law, and they are therefore punishable by a

maximum term of imprisonment of 3 months. N.Y. Penal Law § 70.15

(McKinney 2000).

II. ISSUE ON APPEAL

The issue in this case is whether the respondent’s offenses of simple

possession of marijuana, which are classified as misdemeanors under

applicable state law, constitute “drug trafficking crimes” within the meaning

of 18 U.S.C. § 924(c)(2) (2000), such that they may be considered aggravated

felonies under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B)

(2000). 2 Disposition of this issue is guided by our recent precedent decision

in Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), where we held that the

determination whether state drug offenses constitute “drug trafficking crimes”

must be made by reference to pertinent authority from the relevant circuit

court of appeals. See also Matter of Santos-Lopez, 23 I&N Dec. 419 (BIA

2002) (following Matter of Yanez and applying precedent of the United States

Court of Appeals for the Fifth Circuit to determine that an alien’s

misdemeanor marijuana possession offenses under Texas law did not

2

Section 101(a)(43) of the Act defines the categories of offenses considered aggravated

felonies under the immigration laws and provides that the term “aggravated felony” applies to

“an offense described in this paragraph, whether in violation of Federal or State law.” A “drug

trafficking crime (as defined in section 924(c) of title 18, United States Code),” which is

included in the aggravated felony definition at section 101(a)(43)(B), is defined as follows:

[T]he term “drug trafficking crime” means any felony punishable under the Controlled

Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act

(21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901

et seq.).

18 U.S.C. § 924(c)(2).

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constitute “drug trafficking crimes”). Accordingly, we turn to an examination

of the pertinent law of the Second Circuit, in whose jurisdiction this case

arises.

III. RELEVANT CASE LAW

The Second Circuit has adopted a “context-sensitive” or “bifurcated”

approach to interpretation of 18 U.S.C. § 924(c)(2). United States v. Pornes-

Garcia, 171 F.3d 142, 147 (2d Cir. 1999). In criminal cases involving aliens

charged with illegal reentry to the United States after being deported

subsequent to an aggravated felony conviction, the Second Circuit has held

that a state drug offense qualifies as a “drug trafficking crime” if the

convicting jurisdiction classifies the offense as a felony. Id. (holding that an

alien convicted of attempted criminal possession of cocaine in the first

degree, a class A-1 felony under applicable New York law, was convicted of

a drug trafficking crime under 18 U.S.C. § 924(c)(2)); United States v.

Polanco, 29 F.3d 35 (2d Cir. 1994) (stating that an alien convicted of criminal

sale of a controlled substance, a class C felony under applicable New York

law, was convicted of a drug trafficking crime under 18 U.S.C. § 924(c)(2)).

These decisions are consistent with the weight of authority from other circuits

that have interpreted 18 U.S.C. § 924(c)(2). See United States v. Hernandez-

Avalos, 251 F.3d 505 (5th Cir.), cert. denied, 122 S. Ct. 305 (2001); United

States v. Simon, 168 F.3d 1271 (11th Cir. 1999); United States v. Briones-

Mata, 116 F.3d 308 (8th Cir. 1997); United States v. Cabrera-Sosa, 81 F.3d

998 (10th Cir. 1996); United States v. Restrepo-Aguilar, 74 F.3d 361 (1st

Cir. 1996); cf. also United States v. Arellano-Torres, 303 F.3d 1173 (9th Cir.

2002) (holding that a state conviction for possession of a controlled substance

that is punishable under state law by a term of imprisonment of more than

1 year qualifies as a conviction for a drug trafficking crime).

In cases arising in the civil immigration context, by contrast, the Second

Circuit has acquiesced in the interpretation of 18 U.S.C. § 924(c)(2)

previously advanced by this Board in Matter of L-G-, 21 I&N Dec. 89 (BIA

1995), where we held that state drug offenses may be considered “drug

trafficking crimes,” and therefore aggravated felonies, only if they are

“analogous” to offenses punishable as felonies under the three federal drug

laws referenced in 18 U.S.C. § 924(c)(2). Aguirre v. INS, 79 F.3d 315 (2d

Cir. 1996); see also Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002). 3 As

3

The respondent’s second marijuana possession offense is arguably analogous to an offense

punishable as a felony under the federal Controlled Substances Act at 21 U.S.C. § 844(a)(1)

(2000) and might therefore qualify as an aggravated felony under the interpretive approach

(continued...)

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the Second Circuit emphasized in Aguirre and subsequent cases, however, its

decision to acquiesce in Matter of L-G- was motivated by neither

administrative deference nor agreement with the analytical underpinnings of

the Board’s interpretation of 18 U.S.C. § 924(c)(2), but rather by prudential

concerns for “nationwide uniformity” in the application of the federal

immigration laws and for safeguarding this country’s commitment to providing

asylum. Sutherland v. Reno, 228 F.3d 171, 174 (2d Cir. 2000); United

States v. Pornes-Garcia, supra, at 146-47; Aguirre v. INS, supra, at 317.

This Board, motivated by the same desire for uniformity that animated the

Second Circuit in Aguirre, previously endorsed the “bifurcated” approach to

interpretation of 18 U.S.C. § 924(c)(2). See Matter of K-V-D-, 22 I&N Dec.

1163 (BIA 1999) (holding that where a circuit court of appeals has interpreted

the definition of an “aggravated felony” under section 101(a)(43)(B) in the

criminal context only, the Board has the authority to interpret the phrase

differently in the immigration context, even in that same circuit). However,

in Matter of Yanez, supra, we acknowledged our obligation to withdraw from

that approach in light of emergent case law from other circuits holding, or

strongly suggesting, that the meaning of 18 U.S.C. § 924(c)(2) must be

identical in civil immigration cases and criminal cases. See United States v.

Hernandez-Avalos, supra, at 509-10 (stating in the Fifth Circuit that “[w]e

fail to see the validity of interpreting [section 924(c)(2)] differently based on

this distinction between sentencing and immigration cases; it is, after all, the

same words of the same phrase from the same statute that is being interpreted

in each instance”); United States v. Ibarra-Galindo, 206 F.3d 1337, 1340 n.2

(9th Cir. 2000) (stating in the Ninth Circuit that “we have never even

suggested that we would interpret 18 U.S.C. § 924(c)(2) differently in

applying the Immigration and Nationality Act than we now interpret it in

applying the Sentencing Guidelines”), cert. denied, 531 U.S. 1102 (2001);

Ruiz-Romero v. Reno, 205 F.3d 837, 839-40 (5th Cir. 2000).

3

(...continued)

adopted in Matter of L-G-, supra, and acquiesced in by Aguirre v. INS, supra. But cf. Steele

v. Blackman, 236 F.3d 130 (3d Cir. 2001). Under 21 U.S.C. § 844(a)(1), an individual who

commits a drug possession offense after a prior drug possession conviction has become final

may be sentenced to a term of imprisonment of up to 2 years. Because this offense carries

a maximum term of imprisonment of more than 1 year, it qualifies as a “felony” under

18 U.S.C. § 3559(a)(5) and as a “felony drug offense” under 21 U.S.C. § 802(44). In the

instant case, the respondent’s first marijuana possession conviction occurred on August 10,

2000, and became “final” on September 10, 2000, upon expiration of the statutory 30-day

appeal period established under New York law. N.Y. Crim. Proc. Law § 460.10 (McKinney

2000). The respondent’s second marijuana possession offense was committed on

November 10, 2000, approximately 2 months after his prior marijuana possession conviction

became “final.”

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Thus, although uniformity in the application of the federal immigration laws

remains a salutary goal, divisions among the circuits—regarding both the

proper interpretation of 18 U.S.C. § 924(c)(2) and the permissibility of the

“bifurcated” approach—have made such uniformity unattainable at the

administrative level. As Matter of Yanez, supra, makes clear, short of

congressional action or a ruling from the Supreme Court, whatever degree of

uniformity that can be achieved in this context must hereafter be provided by

the circuits themselves. Hence, in accordance with the principle of deference

to circuit authority embraced by Matter of Yanez, our present goal is to

determine which of the alternative interpretations of 18 U.S.C. § 924(c)(2) is

deemed correct by the Second Circuit as a pure matter of statutory

construction.

IV. ANALYSIS

After thoroughly reviewing the relevant case law, we are persuaded that the

interpretation of 18 U.S.C. § 924(c)(2) adopted and applied in Pornes-Garcia

and Polanco is the favored construction in the Second Circuit. The fact that

the Second Circuit adopted this interpretation in its first reported case on the

question—Polanco—suggests to us that the interpretation was consistent with

the Second Circuit’s intuitive reading of the statute, divorced from the

uniformity considerations that would later prompt it to acquiesce in Matter

of L-G- in the civil immigration context. We also find it significant that the

Second Circuit has chosen to retain its original interpretation, even after

Aguirre demonstrated that an alternative interpretation was available. See

United States v. Pornes-Garcia, supra. Further, as previously noted, the

Second Circuit’s approach in Polanco and Pornes-Garcia has since been

adopted as a matter of statutory construction by virtually every other federal

circuit court that has had occasion to interpret 18 U.S.C. § 924(c)(2). Yet the

contrary interpretation, previously embraced by this Board and acquiesced in

by Aguirre in the interest of uniformity, has never been explicitly ratified by

the Second Circuit as a correct reading of 18 U.S.C. § 924(c)(2). See

Aguirre v. INS, supra, at 317 (stating only that “[t]he statutory point

[regarding the proper interpretation of 18 U.S.C. § 924(c)(2)] is fairly

debatable”). Accordingly, we will apply the interpretation of 18 U.S.C.

§ 924(c)(2) adopted in Pornes-Garcia and Polanco in the present case and

in future cases arising within the Second Circuit.

The Second Circuit has held that an offense is a “drug trafficking crime”

under 18 U.S.C. § 924(c)(2) if it is (1) punishable under the Controlled

Substances Act and (2) a felony. United States v. Pornes-Garcia, supra, at

146; United States v. Polanco, supra, at 38. The first requirement is

consistent with our decision in Matter of Barrett, 20 I&N Dec. 171 (BIA

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1990), where we held that a state drug offense may be considered an

aggravated felony only if it is analogous to an offense, such as possession of

a controlled substance, that would be punishable under one of the three

federal drug laws referenced in 18 U.S.C. § 924(c)(2). Marijuana is a

controlled substance under 21 U.S.C. § 812(c), sch. I(c)(10) (2000), and

possession of a controlled substance violates 21 U.S.C. § 844(a). Hence, the

respondent’s offenses plainly satisfy the test in Matter of Barrett.

The issue in this case turns on the second requirement identified above,

i.e., whether the state offense is a “felony.” Like most of its sister circuits,

the Second Circuit holds that the term “felony” in 18 U.S.C. § 924(c)(2)

should be interpreted by reference to the definition of a “felony” set forth in

the Controlled Substances Act at 21 U.S.C. § 802(13) (2000). United States

v. Pornes-Garcia, supra, at 145. Section 802(13) provides that “[t]he term

‘felony’ means any Federal or State offense classified by applicable Federal

or State law as a felony.” We understand the Second Circuit to look to the

law of the convicting jurisdiction as the “applicable” law. Cf. Matter of

Santos-Lopez, supra.

Because the respondent’s offenses were prosecuted as misdemeanors in the

convicting jurisdiction and were punishable under applicable state law by a

term of imprisonment of no more than 3 months, neither of those offenses is

a “felony” under the “applicable” law within the meaning of 21 U.S.C.

§ 802(13). Therefore, neither constitutes a “drug trafficking crime” under

18 U.S.C. § 924(c)(2). Consequently, the respondent has not been convicted

of an “aggravated felony” within the meaning of section 101(a)(43)(B) of the

Act and is not statutorily ineligible for cancellation of removal under section

240A(a)(3) of the Act. Accordingly, the respondent’s appeal will be

sustained, and the record will be remanded to the Immigration Judge to

determine whether the respondent is otherwise eligible for cancellation of

removal and whether he merits such relief in the exercise of discretion.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Court

for further proceedings consistent with the foregoing opinion, and for the entry

of a new decision.

CONCURRING OPINION: Cecelia M. Espenoza, Board Member

I respectfully concur.

I write separately to indicate that I agree with the result, insofar as both the

offenses in this case are state misdemeanors, which do not constitute “drug

trafficking crimes” within the meaning of 18 U.S.C. § 924(c)(2) (2000). Cf.

Matter of Yanez, 23 I&N Dec. 390 (BIA 2002) (finding two state felony

possession offenses to be aggravated felonies). However, this case is

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governed by our finding in Matter of Santos-Lopez, 23 I&N Dec. 419 (BIA

2002), and, accordingly, a state misdemeanor possession offense is not an

aggravated felony as defined under 18 U.S.C. § 924(c)(2).

Therefore, as a state misdemeanor is not a felony, I concur.

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