Julvio Juice, a native and citizen of Haiti, petitions for review of a decision by the *32 Board of Immigration Appeals (“BIA”) denying his application for cancellation of removal. The BIA concluded he was not eligible for this relief from removal because he had been convicted of an aggravated felony.
The petitioner raises a new question for this court involving the interplay between the immigration law’s definition of aggravated felons, who are ineligible for cancellation of removal, and the federal criminal statutory exception in 21 U.S.C. § 841(b)(4) for • reducing certain felony iharijuana offenses from felonies to misdeméanor status.
We deny the petition. Our resolution of this issue is different from that of the only other circuit which, to our knowledge, has addressed the issue under the immigration law.
See Wilson v. Ashcroft,
I.
Juice entered the United States as a lawful permanent resident on August 23, 1993. On May 14, 2003, Juice pled guilty to one count of possession with intent to distribute a Class D substance (in his case, marijuana) under Massachusetts law. See Mass. Gen. Laws ch. 94C, § 32C(a). He also pled guilty to a count of possession of this marijuana in a school zone. 1 Juice received a two-year sentence for his convictions.
The Immigration and Naturalization Service initiated removal proceedings against Juice on May 25, 2004. The agency charged Juice as removable both because he had been convicted of an “aggravated felony,” see 8 U.S.C. § 1227(a)(2)(A)(iii), and because he had been convicted of violating a law “relating to a controlled substance,” see id. § 1227(a)(2)(B)(i). The agency based both charges on Juice’s conviction under Mass. Gen. Laws ch. 94C, § 32C(a) for possession with intent to distribute marijuana. 2
Juice conceded his removability under the “controlled substances” charge. He nevertheless argued that he was eligible for the discretionary relief of cancellation of removal. See 8 U.S.C. § 1229b(a). Aliens who have been convicted of an aggravated felony are not eligible for this relief, id. § 1229b(a)(3), but Juice argued that the state-law conviction did not qualify as an “aggravated felony” as defined in the Immigration and Nationality Act (“INA”).
An Immigration Judge (“IJ”) issued an oral decision on January 30, 2007. The IJ relied on
Berhe v. Gonzales,
The BIA affirmed on August 2, 2007. The only issue before the BIA was Juice’s eligibility for cancellation of removal. Citing the Supreme Court’s decision in
Lopez v. Gonzales,
Juice timely petitioned for review of the BIA’s decision.
II.
Juice’s petition raises a single legal issue: whether the BIA erred in denying him eligibility for cancellation of removal by treating a conviction under Mass. Gen. Laws ch. 94C, § 32C(a) as an “aggravated felony” conviction for purposes of the INA. Because this petition presents only a pure question of law, we review the issue de novo.
Berhe,
“An aggravated felony on a criminal record has worse collateral effects than a felony conviction simple.”
Lopez,
The INA defines an “aggravated felony” in part as “illicit trafficking in a controlled substance ... including a drug trafficking crime.” Id. § 1101(a)(43)(B). Importantly, the term “drug trafficking crime” includes offenses punishable as felonies under the federal CSA. Id.; 18 U.S.C. § 924(c)(2).
Because Juice was convicted under state rather than federal law, this court applies the “hypothetical federal felony” approach and asks “whether the underlying offense would have been punishable as a felony under federal law.”
Berhe,
The Massachusetts statute under which Juice pled guilty to possession with intent to distribute punishes “[a]ny person who knowingly or intentionally manufactures, distributes, dispenses or cultivates, or possesses with intent to manufacture, distribute, dispense or cultivate [marijuana].” Mass. Gen. Laws ch. 94C, § 32C(a). An analogous provision in the federal CSA forbids “any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). When less than fifty kilograms of marijuana is involved, the CSA authorizes up to five years’ imprisonment for a violation.
See id.
§ 841(b)(1)(D). A federal offense that carries such a potential punishment qualifies as a federal felony.
See
18 U.S.C. § 3559(a). Based on the congruence between these state and federal offenses, we concluded in
Berhe
that a Massachusetts conviction for possession with intent to distribute marijuana is punishable as a felony under federal law, and so it is an aggravated felony for purposes of the INA.
In an innovative argument not addressed by this court in Berhe, Juice says all is not lost for his position because the *34 state marijuana statute encompasses conduct that would not be punishable as a felony under the CSA, but would instead be treated as a misdemeanor under the CSA. Juice relies on a provision in the CSA, contained within the section that describes the felony offense of possession with intent to distribute marijuana, 21 U.S.C. § 841(b), that punishes distribution of “a small amount of marihuana for no remuneration” as a misdemeanor. See 21 U.S.C. §§ 841(b)(4), 844. 4
It is the nature of this subsection and who bears the burden of proof which are called into question. As the narrow statutory language suggests, Congress intended for this sentencing carve-out to apply to defendants guilty of no more than social sharing of marijuana.
See United States v. Outen,
When a state offense correlates with a federal crime that the INA treats as an aggravated felony but the state statute is written broadly enough to cover at least some non-felonious conduct, the government can show that a conviction under the state statute nonetheless qualifies as an aggravated felony where facts in the record of conviction provide clear and convincing evidence that the alien’s offense “constitutes a crime designated as an aggravated felony in the INA.”
Conteh,
Juice’s argument fails because it mistakes the nature of § 841(b)(4), the federal misdemeanor sentencing exception. That section does not create a stand-alone misdemeanor offense. Rather, it is best understood as a mitigating sentencing provision.
See United States v. Eddy,
When the issue of interpretation of § 841(b)(4) arises in the federal criminal context, every court that has considered the question has held that § 841(b)(1)(D), not § 841(b)(4), sets forth the statutory maximum.
See, e.g., United States v. Hamlin,
The statutory maximum here is the five years set forth by § 841(b)(1)(D), and under the law construing § 841(b)(4), the defendant bears the burden of producing mitigating evidence in order to obtain misdemeanor treatment under § 841(b)(4).
See, e.g., Hamlin,
To put it differently, the same elements required under Massachusetts law to establish the offense of possession with intent to distribute marijuana, see Mass. Gen. Laws ch. 94C, § 32C(a), if proven in a federal prosecution under § 841, would establish a felony offense. Consistent with Berhe, a conviction for possession with intent to distribute under Mass. Gen. Laws ch. 94C, § 32C(a) qualifies as an aggravated felony for purposes of the INA. 6 Under federal criminal law, it is the defendant’s burden to show the offense should be reduced to a misdemeanor under § 841(b)(4).
We see no reason to adopt a different rule for purposes of defining an “aggravated felony” under immigration law and do see reasons not to do so. It would be both anomalous and create a disparity in the law’s use of the analogy to federal criminal statutes if we were to shift the burden to the government in an immigration case to show that § 841(b)(4) does not apply when there is the requisite state drug conviction. Here, Juice did not even attempt to meet the burden, which is his to bear, that his *36 conduct of conviction fell within § 841(b)(4).
The BIA assumed that an alien could meet that burden in some cases, but did not explain how that would be done under § 841(b)(4), as Juice made no effort to do so. Perhaps the record of conviction in state court would contain facts permitting the alien to make such an argument. We note that an alien, not considering the immigration context, may have had no incentive to produce such evidence in the state court proceeding. Whether the alien would be permitted to introduce other evidence outside of the record of conviction before the IJ is an issue the BIA may wish to address.
The petition is denied.
Notes
. Juice withdrew his original pleas, but reentered guilty pleas to the same offenses on August 12, 2004.
. On April 15, 2004, Juice was again convicted in Massachusetts for possession of marijuana with intent to distribute and possession in a school zone, this time by jury verdict. That conviction was pending appeal during the agency proceedings.
. We ordinarily defer to the BIA's reasonable interpretations of silent or ambiguous provisions of the immigration statutes. However, this court has noted that because the BIA resolves "aggravated felony” cases by applying the law of the circuit in which the case arises, we apply de novo review.
Conteh,
. The relevant provision reads,
Notwithstanding [21 U.S.C. § 841(b)(1)(D)], any person who violates [21 U.S.C. § 841(a)] of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18.
21 U.S.C. § 841(b)(4). Section 844 authorizes imprisonment of up to one year for a first conviction for simple possession of a controlled substance. Section 3607 is not relevant here.
. The charging documents in the underlying criminal proceedings did not indicate an amount of marijuana or whether Juice received payment. Neither does the administrative record indicate whether Juice admitted to any specific facts in a plea agreement or plea colloquy. During the proceedings before the IJ, the government introduced a police report indicating that Juice was found with multiple bags of marijuana, spare plastic bags, multiple cell phones, and a sum of cash at the time of his arrest. A police report would not seem to qualify as a part of the “record of conviction,’’
Conteh,
. The Third Circuit has reached a different conclusion in the context of other state statutes that do not require proof of remuneration as an element of possession with intent to distribute.
See Wilson,