In these cases, which we heard in tandem and now consolidate for disposition, Petitioners Karen Nicola Alsol and Donald Overton Powell seek review of decisions of the Board of Immigration Appeals (“BIA”) vacating decisions by an Immigration Judge (“IJ”) granting them cancellation of removal. In 07-2068-ag(L) and 08-1942-ag(CON), Petitioner Alsol appeals from orders of the BIA (1) sustaining the Department of Homeland Security’s (“DHS”) appeal and vacating the October 31, 2006 decision of IJ Alan A. Vomacka granting her application for cancellation of removal,
In re Karen Nicola Alsol, aka Karen N. Alsol,
No. A43 732 327,
BACKGROUND
The issue in these cases is whether a second conviction for simple drug possession under state law is a felony under the Controlled Substances Act (“CSA”) because it
could have been
prosecuted as a recidivist offense under 21 U.S.C. § 844(a). We hold that it is not. We further clarify that our sentencing decision in
United States v. Simpson,
I. Karen Nicola Alsol
On September 5, 2002, Alsol pled guilty to one count of criminal possession of a controlled substance in the seventh degree in violation of New York Penal Law § 220.03 for possession of a controlled substance. She was sentenced to three days’ imprisonment. On February 27, 2003, Al-sol again pled guilty to one count of criminal possession of a controlled substance in the seventh degree; she was sentenced to five days’ imprisonment. Three years later, on July 18, 2006, DHS took Alsol into custody and placed her in removal proceedings. In front of the IJ, Alsol conceded that she was removable under 8 U.S.C. § 1227(a)(2)(B)(I) for having been convicted of a crime relating to a controlled substance. However, she did not concede she was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for an aggravated felony conviction and applied for cancellation of removal under 8 U.S.C. § 1229b(a). On October 31, 2006, IJ Vomacka found that Alsol’s second possession conviction was not an aggravated felony and that she was eligible for cancellation of removal, relying on In re Elgendi, 23 I. & N. Dec. 515 (B.I.A.2002). Upon finding that Alsol warranted a favorable exercise of discretion, *209 the IJ granted her application for cancellation of removal.
On December 5, 2006, the U.S. Supreme Court decided
Lopez v. Gonzales,
Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in § 924(c)(2), such as ... recidivist possession, see 21 U.S.C. § 844(a), 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), regardless of whether these federal possession felonies or their state counterparts constitute “illicit trafficking in a controlled substance” or “drug trafficking” as those terms are used in ordinary speech.
Id. at 630 n. 6.
On April 16, 2007, in a divided decision, the BIA sustained DHS’s appeal in Alsol’s case, vacated the IJ’s decision, found Alsol to be ineligible for cancellation of removal, and ordered Alsol removed to Jamaica. The BIA based its decision on
Lopez
and our decision in
United States v. Simpson,
On December 13, 2007, the BIA decided In re Carachuri-Rosendo, 24 I. & N. Dec. 382 (B.I.A.2007) (en banc), appeal docketed, Carachuri-Rosendo v. Mukasey, No. 07-61006 (5th Cir. Dec. 24, 2007), and In re Thomas, 24 I. & N. Dec. 416 (B.I.A.2007). The BIA held that, absent countervailing circuit precedent, a second drug possession conviction was not an aggravated felony unless the petitioner’s “status as a recidivist drug offender was either admitted ... or determined by a judge or jury in connection with a prosecution for [the second] offense.” Carachuri-Rosendo, 24 I. & N. Dec. at 394; accord Thomas, 24 I. & N. Dec. at 421. Thus, a second drug possession offense could not be equated to a federal felony under the CSA unless it “corresponds in a meaningful way to the essential requirements that must be met before a felony sentence can be imposed under Federal law on the basis of recidivism.” Carachuri-Rosendo, 24 I. & N. Dec. at 390.
On March 25, 2008, the BIA denied Al-sol’s motion to reopen and reconsider, finding principally that despite its decision in
Caraehuri-Rosendo,
24 I. & N. Dec. 382, our decision in
Simpson,
II. Donald Overton Powell
On July 3, 1997, Powell pled guilty to seventh degree criminal possession of a controlled substance in violation of New York Penal Law § 220.03, a misdemeanor. He was sentenced to six months’ imprisonment. On January 8, 2001, Powell again pled guilty to seventh degree criminal possession of a controlled substance in violation of § 220.03. He was given a conditional discharge and sentenced to two days’ community service. On October 29, 2004, IJ Brennan granted Powell cancellation of removal after finding that Simpson was not binding, Powell was not charged by the New York State courts as a recidivist, and that Powell’s conviction was not “analogous to a Federal felony, because his status as a recidivist was not actually litigated in the state prosecution for simple possession.” DHS appealed. On October 20, 2006, the BIA sustained DHS’s appeal and ordered Powell removed. Powell petitioned for review, but the parties stipulated to withdraw the petition and remand the ease to the BIA for reconsideration in light of Lopez. After it decided Carachuri-Rosendo and Thomas, the BIA again sustained the DHS’s appeal in Powell pursuant to Lopez and Simpson. On March 7, 2008, Powell filed a timely petition for review with this Court.
DISCUSSION
The dispositive question on appeal is whether Alsol’s and Powell’s second simple possession convictions constitute aggravated felonies under the Immigration and Nationality Act (“INA”). We hold that a second conviction for simple drug possession under state law is not a felony under the Controlled Substances Act simply because it
could have been
prosecuted as a recidivist offense under 21 U.S.C. § 844(a). We also clarify that our decision in
United States v. Simpson,
I. Jurisdiction and Standard of Review
We lack jurisdiction to review any final order of removal against an alien who is deemed deportable by way of conviction for an aggravated felony, except for constitutional claims and questions of law. 8 U.S.C. §§ 1252(a)(2)(C); 1252(a)(2)(D). Thus, we retain jurisdiction to decide the question of law regarding
whether
this jurisdictional bar applies, i.e., whether petitioners’ convictions were in fact aggravated felonies.
See, e.g., Gertsenshteyn v. U.S. Dep’t of Justice,
II. Statutory Framework
An alien is ineligible for cancellation of removal if she has been “convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). The INA provides, in relevant part, that “[t]he term ‘aggravated felony’ means ... illicit trafficking in a controlled substance ..., including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). A “drug trafficking crime,” then, is defined in relevant part as “any felony punishable under the Controlled Substances Act (21 U.S.C. [§] 801 et seq.).” 18 U.S.C. § 924(c)(2). Under *211 the CSA, a “felony” is an offense for which “the maximum term of imprisonment authorized” exceeds one year. 18 U.S.C. § 3559(a).
In
Lopez v. Gonzales,
However, if a person commits a possession offense “after ... a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, has become final, he shall be sentenced to a term of imprisonment for ... not more than 2 years.” 21 U.S.C. § 844(a) (emphases added). Under this recidivist provision, simple drug possession can be charged as a federal felony if it was committed after a prior, final, drug conviction. Importantly, the increased sentence is not automatically available:
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.
21 U.S.C. § 851(a)(1) (emphasis added). If the government files the required information, the court, prior to sentencing, must inquire whether the defendant “affirms or denies that he has been previously convicted as alleged in the information.” Id. § 851(b). If a defendant does not admit his prior conviction, the government must prove the existence of the prior conviction beyond a reasonable doubt, id. § 851(c)(1), and a defendant has a limited right to collaterally attack the validity of his prior conviction, id. § 851(c)(2). 3
The issue before us is whether a second simple state controlled substance possession misdemeanor conviction constitutes a felony punishable under the CSA because it could have been prosecuted as a recidivist offense under 21 U.S.C. § 844(a).
III.
Lopez v. Gonzales,
In
Lopez v. Gonzales,
IV. In re Carachuri-Rosendo, 24 I. & N. Dec. 382 (B.I.A.2007) (en banc)
In December 2007, after Lopez, the BIA held that a second drug possession conviction is not an aggravated felony conviction “unless the alien’s status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for [the second] offense.” In re Carachuri-Rosendo, 24 I. & N. Dec. 382, 394 (B.I.A.2007) (en banc), appeal docketed, Carachuri-Rosendo v. Mukasey, No. 07-61006 (5th Cir. Dec. 24, 2007); accord In re Thomas, 24 I. & N. Dec. 416, 421 (B.I.A.2007). The BIA held that a second drug possession offense is not punishable as a federal felony, as required by Lopez, unless it “corresponds in a meaningful way to the essential requirements that must be met before a felony sentence can be imposed under Federal law on the basis of recidivism.” Carachuri-Rosendo, 24 I. & N. Dec. at 390. In light of 21 U.S.C. § 851, the BIA held that meaningful correspondence requires that “the State successfully sought to impose punishment for a recidivist drug conviction.” Id. at 391. 4
The BIA acknowledged that its interpretation of criminal statutes (as opposed to the INA) is “not entitled to deference” by the courts.
Carachuri-Rosendo,
24 I. & N. Dec. at 385;
see also Gertsenshteyn v. U.S. Dep’t of Justice,
The BIA then applied the Carachuri-Rosendo rule in a separate case, holding that petitioner’s second possession offense did not correspond to “the Federal felony of ‘recidivist possession.’ ” Thomas, 24 I. & N. Dec. at 421.
[Bjecause [Thomas’s] marijuana possession conviction did not result from a State proceeding in which his status as a recidivist drug offender was either admitted or determined by a judge or jury, ... [it did] not qualify as a conviction for a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) or an “aggravated felon/’ under section 101(a)(43)(B) of the [INA], absent controlling [circuit] precedent to the contrary.”
Id. at 421-22.
V. Circuit Split
As the BIA recognized,
see In re Garachuri-Rosendo,
24 I. & N. Dec. 382, 385-86 (B.I.A.2007) (en banc),
appeal docketed, Carachuri-Rosendo v. Mukasey,
No. 07-61006 (5th Cir. Dec. 24, 2007), our sister circuits have split on whether a second simple possession conviction is an offense punishable as a recidivist offense under 21 U.S.C. § 844(a), thus making it an aggravated felony for immigration purposes. The First, Third, and Sixth Circuits agree that such a conviction does not automatically qualify as the federal felony of recidivist possession.
5
See Berhe v. Gonzales,
The first and only hypothetical that should be considered under the “hypothetical federal felony approach” is whether the crime that an individual was actually convicted of would be a felony under federal law. But by looking to facts not at issue in the crime of conviction in order to determine whether an individual could have been charged with a federal felony, our sister circuits, the IJ, and the BIA have considered an impermissible second hypothetical! We conclude that inclusion of the word “hypothetical” in the “hypothetical federal felony” approach does not provide the government with free reign to make ex-post determinations of what federal crimes an individual could hypothetically have been charged with where, as here, a prior drug-possession conviction was not at issue in the prosecution of the subsequent drug-possession offense.
*214
Id.
at 445 (citation omitted).
See also Fernandez v. Mukasey,
On the other hand, the Fifth and Seventh Circuits have held in the sentencing context, where a conviction for an “aggravated felony,” which is defined the same way as it is under the INA,
see
U.S.S.G. § 2L1.2 cmt. n. 3(A), may result in an eight-level enhancement,
see
U.S.S.G. § 2L1.2(b)(l)(C), that a second simple possession offense can be considered a federal felony because it could have been prosecuted as a recidivist offense under 21 U.S.C. § 844(a).
See United States v. Cepeda-Rios,
VI. Analysis
A. “Aggravated Felony”
We now join the First, Third, and Sixth Circuits in holding that a second simple drug possession conviction is not an “aggravated felony” as that term is defined in 8 U.S.C. § 1101(a)(43)(B). As noted, under
Lopez,
“a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct
punishable
as a felony under that federal law.”
*215
As we recently emphasized, “the INA premises removability not on what an alien has done, or may have done, or is likely to do in the future (tempting as it may be to consider those factors), but on what he or she has been formally
convicted
of in a court of law.”
Gertsenshteyn v. U.S. Dep’t of Justice,
In
Lopez,
the Supreme Court noted that some state penal codes “graduate drug possession offenses from misdemeanor to felony depending on quantity,” while federal law did not, treating “possession alone as a misdemeanor whatever the amount.”
Lopez,
Our “categorical approach” supports the holding that an actual conviction is needed. Under the categorical approach, when determining whether an alien is removable, we “look to the elements and the nature of the [state] offense of conviction, rather than to the particular facts relating to [the] petitioner’s crime.”
Dulal-Whiteway,
*216
This case does not involve a simple application of the categorical approach, however, because, as the BIA recognized, while most offenses are defined by their elements, recidivist possession is “an amalgam of elements, substantive sentencing factors, and procedural safeguards.”
Carachuri-Rosendo,
24 I. & N. Dec. at 389. Thus, the Seventh Circuit found that because the recidivist enhancement available here is not an element of the crime,
7
a broad inquiry into the petitioner’s underlying conduct is permitted.
See Fernandez v. Mukasey,
The BIA concluded that, in order for a state misdemeanor offense to be treated as a recidivist offense and thus a federal felony under the CSA, the alien’s “status as a recidivist drug possessor must have been admitted or determined by a court or jury
within the prosecution for the second drug crime.” Carachuri-Rosendo,
24 I.
&
N. Dec. at 391 (emphasis added). We believe that the BIA’s holding in
Carachuri-Rosendo
best serves the requirement that petitioner’s status as an aggravated felon be based on an actual conviction. Under this approach, the focus is properly on the state conviction, not the circumstances of the underlying conduct. Though distinct, this is not inconsistent with our categorical approach, as they both serve the same end. The proper focus is on the conduct proscribed in the underlying conviction, not the general conduct reflected in the conviction.
8
Requiring that petitioner be actually convicted of an offense that is analogous
*217
to “recidivist possession” does not rely on the state’s classification of the offense as a felony or misdemeanor. We simply hold that, in these particular and unique circumstances, whatever petitioner was convicted of under state law must correspond with the crime of recidivist possession under the CSA. As Judge Rovner explained, “petitioners ... would have been subject to the increased penalty only if they had been charged as repeat offenders under 21 U.S.C. § 851. And that is a big ‘if.’ After all, they were not charged as repeat offenders in state court.”
Fernandez,
We note that the BIA’s reasoning in Carachuri-Rosendo avoids several anomalies. Under the logic of the government’s “would have” test, a federal misdemeanor would be considered a federal felony on the ground that the defendant could have been prosecuted as a recidivist. Similarly, a state possession conviction would be considered a federal recidivist felony even when the State explicitly elected not to pursue a recidivist conviction. Such outcomes would intrude on prosecutorial discretion to make charging decisions, specifically undermining the State’s ability to negotiate plea agreements with defendants who would admit guilt to drug possession with the understanding that their criminal records would reflect misdemeanor and not felony convictions.
In addition, if one who was not convicted as a recidivist nonetheless faced removal as a recidivist, the IJ would have to determine, for the first time, that an alien was a recidivist. This is inappropriate not only because of the IJ’s lack of expertise in the criminal law but also because the alien cannot challenge the validity of his prior conviction in the removal proceedings.
See Taylor v. United States,
Thus, we hold that the fact of recidivism must be reflected in the conviction the government seeks to classify as an aggravated felony, not merely in petitioner’s underlying conduct. See id. at 391. Where, as here, petitioners were convicted of simple possession of a controlled substance and they did not either admit to their status as recidivists or have that status determined by a court or jury within the prosecution for the second possession offense, petitioners were not convicted of an aggravated felony.
B.
United States v. Simpson,
Finally, we now clarify that Simpson’s discussion of whether a simple possession conviction constitutes an aggravated felony because of a prior drug conviction was dictum, and that, contrary to the BIA’s findings below, Simpson does not control in these proceedings.
At issue in
Simpson
was whether the District Court erred in imposing an eight-level enhancement under U.S.S.G. § 2L1.2(b)(l)(C) for a defendant guilty of illegally reentering after being convicted of an aggravated felony, instead of the four-level enhancement under U.S.S.G. § 2L1.2(b)(l)(E) for a defendant with “three or more convictions for misdemeanors that are crimes of violence or drug
*218
trafficking offenses.”
See Simpson,
Simpson was arrested and pleaded guilty “to illegally reentering the United States as an aggravated felon,” in violation of 8 U.S.C. §§ 1326(a), (b)(2).
Id.
at 82, 84. Simpson thus conceded that he had previously been convicted of an aggravated felony. He instead argued that the four-level enhancement under U.S.S.G. § 2L1.2(b)(l)(E) ought to apply instead of the eight-level enhancement given for an aggravated felony conviction under U.S.S.G. § 2L1.2(b)(l)(C).
Simpson,
We held that Simpson’s argument was “without merit” because both sentence enhancements were applicable, and under the applicable Guideline it was clear that “the District Court was required to apply the higher of the two.” Id. at 85, 87. In holding that Simpson qualified for the eight-level enhancement, we also explained that “under the CSA the sale of marijuana is a felony offense that carries a maximum term of five years’ imprisonment....” Id. at 85 (citing 21 U.S.C. § 841(b)(1)(D)). Accordingly, “each of Simpson’s three pri- or convictions for Criminal Sale of Marijuana in the Fourth Degree under New York law were ‘aggravated felonies’ for purposes of sentencing under the Guidelines because, under the CSA, all three are punishable as felonies.” Id. We further observed that Simpson’s conviction for marijuana possession also qualified as “an aggravated felony within the meaning of the Guidelines, because that offense would have been punishable as a felony under the CSA” in light of Simpson’s prior drug convictions. Id. at 85-86 (citing 21 U.S.C. § 844(a)).
Contrary to the BIA’s interpretation, this discussion of whether the simple possession conviction constitutes an aggravated felony because of prior drug convictions was dictum. The issue in
Simpson
was not whether Simpson had been convicted of an aggravated felony; indeed, Simpson pleaded guilty to illegal reentry as an aggravated felon. What we confronted in
Simpson
was whether the District Court erred in applying the greater of two applicable enhancements under U.S.S.G. § 2L1.2(b)(l), whether the rule of lenity applies to the Guidelines, and if so, whether the rule of lenity should have been applied under the circumstances presented. The discussion of recidivist possession was not necessary to the analysis because Simpson admitted he was an aggravated felon and the three marijuana-sale convictions by themselves rendered the eight-level enhancement for an aggravated felony applicable three times over. Thus, the discussion of Simpson’s possession conviction was not necessary to our holding and dictum.
9
See Cal. Pub. Employees’ Ret. Sys. v. WorldCom, Inc.,
CONCLUSION
We hold that a second simple drug possession conviction is not an aggravated felony for immigration purposes and that Simpson’s observation on recidivism does not control the issue. The petitions for review are GRANTED, the decisions of the BIA are VACATED, and these cases are REMANDED for proceedings consistent with this opinion.
Notes
. In
Simpson,
the appellant had been convicted three times for selling marijuana and once for possessing marijuana in 1992 and 1993, all misdemeanors under New York law. In the process of deciding that the District Court correctly chose the higher of two applicable enhancements under the Guidelines, we noted that the District Court correctly found Simpson's convictions for the sale of marijuana to be aggravated felonies within the meaning of 18 U.S.C. § 924(c)(2) because, under the Controlled Substances Act ("CSA”), those crimes were treated as felonies.
See
. The CSA makes possession of more than five grams of a substance containing cocaine base and possession of flunitrazepam felony offenses, 21 U.S.C. § 844(a), but those offenses are not at issue here.
. Similarly, under New York law, an enhancement for a second possession offense is not automatically available. A second felony drug offender is subject to certain minimum sentences based on the underlying felony, see New York Penal Law §§ 70.70(3)-(4), but this enhancement requires that the defendant be afforded various procedural safeguards similar to those outlined by 21 U.S.C. § 851, see New York Criminal Procedural Law § 400.21 (outlining procedure).
. Apparently, DHS conceded that "that a conviction arising in a State that has drug-specific recidivism laws cannot be deemed a State-law counterpart to 'recidivist possession unless the State actually used those laws to prosecute the respondent.” Carachuri-Rosendo, 24 I. & N. Dec. at 391.
. Prior to
Lopez,
the Ninth Circuit also did not count a subsequent possession offense as an aggravated felony, but had a unique way of arriving at this conclusion. The Ninth Circuit held that an adjudicator cannot consider recidivist sentencing enhancements
at all
when seeking to determine whether a state offense constitutes an aggravated felony.
See Ferreira v. Ashcroft,
.
In
Lopez,
the Court noted that although it is counterintuitive to define simple possession as "drug trafficking,” certain "state possession crimes that correspond to felony violations of [the CSA], such as ... recidivist possession,
see
21 U.S.C. § 844(a), 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).”
Lopez,
. In reaching this conclusion, the Seventh Circuit relied on the Supreme Court’s observation in
Almendarez-Torres v. United States,
However, the relevant statutes give the defendant a range of procedural safeguards, such as the right to a separate proceeding to litigate recidivism and the ability to raise certain collateral challenges, see 21 U.S.C. § 851, that arguably make the recidivist enhancement more than an element. The fact that a defendant is entitled to proof beyond a reasonable doubt suggests that recidivism might be analytically closer to an element of the offense than the Seventh Circuit suggests. Moreover, in this context, proof beyond a reasonable doubt is required by statute regardless of what the Sixth Amendment may require. See 21 U.S.C. § 851(c)(1).
. The modified categorical approach makes a limited exception to this general rule, permitting reference to the record of conviction only when an alien is convicted under a statute that encompasses acts that both would and would not render him removable, for the limited purpose of determining whether he was convicted under the branch of the statute permitting removal.
See, e.g., Gertsenshteyn,
. We note that we expressly limited our opinion in
Simpson
to the sentencing context.
See Simpson,