Garcia v. Holder
2011 U.S. App. LEXIS 6234
| 6th Cir. | 2011Background
- Garcia, a lawful permanent resident since 1995, pled guilty in Michigan to attempted possession with intent to deliver marihuana, under Mich. Comp. Laws § 333.7401(2)(d)(iii).
- He was sentenced to a fine and costs totaling $1,150.
- DHS initiated removal proceedings in 2005, alleging Garcia’s status as an alien convicted of a controlled-substance offense.
- Garcia sought 8 U.S.C. § 1182(h) waiver and cancellation of removal under § 1229b; the IJ denied both on grounds tied to aggravation under federal law.
- BIA affirmed, ruling Garcia’s state offense corresponds to a federal felony drug offense under CSA, thus an aggravated felony, and denying § 1182(h) as inapplicable.
- Garcia appealed, challenging the aggravated-felony determination and waivers, and asserting ineffective assistance of counsel under Padilla v. Kentucky.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Garcia's state conviction amount to an aggravated felony? | Garcia argues the offense corresponds to a misdemeanor under the CSA, not a felony. | Garcia's elements align with a CSA felony under the hypothetical federal felony rule; amount is not element, so it is aggravated. | Garcia's state conviction is an aggravated felony. |
| Is Garcia eligible for a § 1182(h) waiver? | Petitioner contends the state offense qualifies for § 1182(h) as a single simple possession case. | Garcia pled to more than simple possession, disqualifying § 1182(h) relief. | Garcia is ineligible for § 1182(h) waiver. |
| Does Padilla ineffective assistance apply to immigration proceedings for collateral attacks on prior convictions? | Garcia asserts his counsel failed to warn about immigration consequences, triggering Padilla-based relief. | Procedurally, Collateral attack on removal based on prior conviction is barred; Padilla did not apply in removal-review context. | No relief; collateral attack and Padilla claim unavailable in immigration review. |
Key Cases Cited
- Lopez v. Gonzales, 549 U.S. 47 (2006) (defines aggravated felony through the 'categorical approach' and 'illicit trafficking' concept)
- Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) (clarifies when a state offense constitutes a CSA felony under the hypothetical federal felony rule)
- United States v. Bartholomew, 310 F.3d 912 (6th Cir. 2002) (amount of marihuana need not be proven to convict under § 841(a) or punish under § 841(b)(1)(D); § 841(b)(1)(D) is the default for undetermined amounts)
- Julce v. Mukasey, 530 F.3d 30 (1st Cir. 2008) (rejects treating § 841(b)(4) as an independent misdemeanor; burden on defendant for misdemeanor treatment)
- Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) (Second Circuit adopts view similar to Bartholomew regarding § 841(b)(4) vs § 841(b)(1)(D))
- Jeune v. Attorney Gen., 476 F.3d 199 (3d Cir. 2007) (Third Circuit agrees with non-municipal interpretation of § 841(b)(4) as sentencing provision)
- Rashid v. Mukasey, 531 F.3d 438 (6th Cir. 2008) (immigration-sentencing principles align with criminal-sentencing interpretations for aggravated felonies)
- Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (requirement that attorneys inform clients of deportation risks in guilty-plea decisions)
- Al-Najar v. Mukasey, 515 F.3d 708 (6th Cir. 2008) (alien cannot collaterally attack a criminal conviction used to initiate removal proceedings)