Hylton v. SessionsHylton v. Sessions
- Reporters:
- ,
- Before:
- Dennis Jacobs, Raggi, Hall
Antoine Hylton, a Jamaican national, petitions for review of the order of the Board of Immigration Appeals, which found him ineligible for cancellation of removal because his prior state conviction for sale of marijuana in the third degree constituted an aggravated felony under the Immigration and Nationality Act. The single issue on appeal is whether the minimum offense conduct under Hylton‘s statute of conviction, New York Penal Law (“NYPL“) § 221.45, is necessarily punishable as a federal felony by the Controlled Substances Act. Because NYPL § 221.45 explicitly extends to the distribution of less than an ounce of marijuana without remuneration, it is punishable as a federal misdemeanor.
GERARDO ROMO, KYLE BARRON, Washington Square Legal Services, Inc., New York, NY (Nancy Morawetz, Washington Square Legal Services, Inc., New York, NY; Su Yon Yi, Queens Law Associates, Public Defenders, Forest Hills, NY, on the brief), for Petitioner.
ALEXANDER J. LUTZ, Trial Attorney, Office of Immigration Litigation, for Chad A. Readler, Acting Assistant Attorney General (Anthony C. Payne, Assistant Director, Office of Immigration Litigation, on the brief), Washington, D.C., for Respondent.
OPINION
DENNIS JACOBS, Circuit Judge:
Antoine Hylton, a Jamaican national, petitions for review of the May 9, 2017 order of the Board of Immigration Appeals (“BIA“), which found him ineligible for cancellation of removal because his prior state conviction for sale of marijuana in the third degree constituted an aggravated felony under the Immigration and Nationality Act (“INA“). The single issue on appeal is whether the minimum offense conduct under Hylton‘s statute of conviction, New York Penal Law (“NYPL“) § 221.45, is necessarily punishable as a federal felony by the Controlled Substances Act (“CSA“). See Martinez v. Mukasey, 551 F.3d 113, 118-19 (2d Cir. 2008).
“If a noncitizen‘s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana,” the offense is punishable as a federal misdemeanor.
Hylton‘s crime of conviction is therefore not categorically an aggravated felony. Hylton is removable, but not precluded from equitable relief at the discretion of the immigration judge (“IJ“). The IJ weighed equities and granted cancellation of removal, a ruling that the BIA did not reach, having found ineligibility for that relief. We GRANT the petition, VACATE the opinion of the BIA, and REMAND for the BIA to review the IJ‘s grant of cancellation of removal.
I
Antoine Hylton was admitted to the United States as a lawful permanent resident in 1989. He is married to a U.S. Citizen and has two U.S. citizen brothers, a U.S. citizen mother, and three U.S. citizen-children whom he supports. In 2011, Hylton was convicted of criminal possession of marijuana in the third degree and criminal sale of marijuana in the third degree. See
When Hylton appeared before the IJ, he conceded removability, but challenged the aggravated felony charge in order to become eligible for cancellation of removal. The IJ ruled as a matter of law that Hylton was not an aggravated felon and made factual findings that Hylton was entitled to relief from deportation. Specifically, the IJ conducted an analysis under the categorical approach, concluded that the minimum conduct criminalized under NYPL § 221.45 includes the non-remunerative transfer of 30 grams or less of marijuana, and ruled accordingly that this conduct fell outside the class of aggravated felony that constitutes “illicit trafficking in a controlled substance.”
The Government appealed to the BIA. Reviewing the IJ‘s aggravated felony ruling de novo, the BIA held that Hylton‘s conviction “does not fall within the misdemeanor exception contained at
Hylton timely petitioned this Court for review. This Court‘s limited jurisdiction over Hylton‘s petition of the BIA order is to review “constitutional claims or questions of law.”
II
“When the Government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the
The aggravated felony at issue is illicit trafficking in a controlled substance. See
“We begin with the relevant conduct criminalized by the CSA.” Moncrieffe, 569 U.S. at 192. Marijuana distribution is a CSA offense that can be either a felony (see
The CSA does not define a “small amount” of marijuana. Still, several circuits have held that 30 grams is a “small amount” within the meaning of
The BIA in Castro-Rodriguez located support for its 30-gram figure in a possession subsection of the INA that exempts from the definition of a “controlled substance” offense the possession of “30 grams or less of marijuana.”
There are other, more intuitive reasons why the range 25 to 30 grams is deemed “small.” (1) One ounce equals 28.35 grams, an equivalence noted by the Fourth Circuit when it recently suggested that a statute that criminalizes the transfer of 30 grams of marijuana for no remuneration is not an aggravated felony. See Guevara-Solorzano, 891 F.3d at 132 (observing that 30 grams, the amount noted in Moncrieffe, is approximately one ounce). (2) In drafting the CSA‘s marijuana misdemeanor provision, Congress intended to include such amounts that suggest personal use and social sharing, as opposed to large-scale commercial dealing. See United States v. Outen, 286 F.3d 622, 637-38 (2d Cir. 2002);
We are convinced by the logic of this approach. We now hold that an ounce (roughly 30 grams) or less of marijuana is a “small amount” within the meaning of
The minimum offense conduct under NYPL § 221.45 is therefore the nonremunerative transfer of anything over 25 grams of a substance containing marijuana. See Martinez, 551 F.3d at 121 (holding that the minimum conduct punishable as criminal sale of marijuana in the fourth degree involved the nonremunerative transfer of two grams of marijuana); see also Ming Wei Chen, 864 F.3d at 538 (explaining that the minimum offense conduct under a marijuana distribution statute penalizing weight over 30 grams is “a hair over 30 grams“).
Comparing the minimum chargeable conduct under NYPL § 221.45 to the elements of CSA marijuana distribution, we conclude that the state statute punishes offenses that would not amount to a federal felony. See Harbin, 860 F.3d at 68. NYPL § 221.45 punishes the distribution of “small amounts” of marijuana, and remuneration is not an element of the conviction. By its plain language, NYPL § 221.45 punishes conduct that is classified as a misdemeanor under
Hylton‘s crime of conviction is not categorically an aggravated felony, and he is not an aggravated felon. Moncrieffe, 569 U.S. at 194-95 (“Moncrieffe‘s conviction could correspond to either the CSA felony or the CSA misdemeanor. Ambiguity on this point means that the conviction did not ‘necessarily’ involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony.“).
III
The BIA did not conduct an elements-based categorical inquiry; instead, it applied a “realistic probability” test. This was error. By its terms, NYPL § 221.45 punishes the transfer without remuneration of less than an ounce of marijuana, which is not necessarily felonious under the CSA. The realistic probability test is obviated by the wording of the state statute, which on its face extends to conduct beyond the definition of the corresponding federal offense. See Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (“[T]he elements of Mathis‘s crime of conviction ... cover a greater swath of conduct than the elements of the relevant [federal] offense. Under our precedents, that undisputed disparity resolves this case.“); see also United States v. Titties, 852 F.3d 1257, 1275 (10th Cir. 2017) (interpreting Mathis).
The requirement that a defendant show a “realistic probability” that “the State would apply its statute to conduct that falls outside the generic definition of a crime” operates as a backstop when a statute has indeterminate reach, and where minimum conduct analysis invites improbable hypotheticals. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). “Legal imagination” may conjure up
Since the elements of NYPL § 221.45 are broader than the corresponding federal felony, Hylton has satisfied any requirement to show that “New York would apply its statute to conduct that falls outside” the definition of a federal felony, and within the federal misdemeanor provision. Duenas-Alvarez, 549 U.S. at 193; see Lopez, 549 U.S. at 60; Mathis, 136 S. Ct. at 2251; see also Jean-Louis v. Att‘y Gen., 582 F.3d 462, 481 (3d Cir. 2009) (no realistic probability inquiry when the statute‘s “elements ... are clear, and the ability of the government to prosecute a defendant under [the statute] is not disputed“); United States v. Aparicio-Soria, 740 F.3d 152, 158 (4th Cir. 2014) (en banc) (“We do not need to hypothesize about whether there is a ‘realistic probability’ that Maryland prosecutors will charge defendants engaged in [the broader conduct]; we know that they can because the state‘s highest court has said so.“).
There are cases in which a separate realistic probability inquiry remains necessary because the elements of the state statute alone do not provide sufficient guidance on its application. For example, courts have modified the
The Government relies on past BIA rulings such as Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014) to argue that we should look beyond what the statute criminalizes on its face and undertake a more demanding and particular inquiry. See also United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc). Putting aside the practical challenges of implementing the Government‘s approach (which are considerable), it finds little purchase in Supreme Court precedent or the law of this Circuit. Duenas-Alvarez does not require the BIA to conduct a separate realistic probability test in a case like this. Duenas-Alvarez dealt with a specific aiding-and-abetting theft statute, in which the boundaries of the offense conduct were ill-defined and the court was tasked with an interpretive dilemma. 549 U.S. at 187, 193-94. Since NYPL § 221.45 presents no such vagaries, the “sensible caution against crediting speculative assertions regarding the potentially sweeping scope of ambiguous state law crimes has no relevance to a case like this.” Swaby, 847 F.3d at 66. By demanding that Hylton produce old state cases to illustrate what the statute makes punishable by its text, “the Government‘s argument misses the point of the categorical approach and ‘wrenches the Supreme Court‘s language in Duenas-Alvarez from its context.‘” Aparicio-Soria, 740 F.3d at 157 (internal quotations marks and citation omitted).
A pair of recent Supreme Court opinions clarified that, in applying the categorical approach, an unambiguous state statute can be broader on its face than its federal counterpart. See Mellouli, 135 S. Ct. at 1990 (“the Government‘s construction of the federal removal statute stretches to the breaking point, reaching state-court convictions ... in which no controlled substance as defined [in the federal code] figures as an element of the offense“) (internal quotation marks and citation omitted); Mathis, 136 S. Ct. at 2251 (no realistic probability test considered when the state statute “cover[ed] a greater swath of conduct” by its
Other circuits have registered nearly unanimous disagreement with the approach taken by the BIA and urged by the Government in this case.4 That approach faces consistent judicial hostility because it is fundamentally inconsistent with formal categorical analysis (as opposed to, say, the modified categorical approach), which resists placing a supplementary, individualized burden on the noncitizen petitioner. See Martinez, 551 F.3d at 121 (“The Government further attempts to avoid a straightforward application of the categorical approach by arguing that it was Martinez‘s burden to prove that his state conviction would be punishable under
IV
Our conclusion that NYPL § 221.45 is not an “aggravated felony” under
The IJ below saw fit to grant Hylton such discretionary relief in view of significant ameliorating factors. The agency does not apply a categorical approach in weighing cancellation of removal. There, the IJ and BIA may certainly take the severity of an alien‘s particular conduct into account. The BIA‘s review of this question was short-circuited by its conclusion that Hylton‘s crime of conviction was an aggravated felony. We therefore remand to give the BIA the opportunity to decide whether the IJ properly exercised its discretion to grant cancellation of removal.
CONCLUSION
For the foregoing reasons, we hereby GRANT the petition, VACATE the opinion of the BIA, and REMAND for the BIA to review the grant of cancellation of removal.