Gоnzales-Gomez, a lawful permanent resident of the United States, was convicted in an Illinois state court of possession of a small quantity of cocaine. Conviction of a drug offense is (with an immaterial exception) a ground for removal (deportation). 8 U.S.C. § 1227(a)(2)(B)®. Gonzales-Gomez’s crime was a felony under Illinois law. Had he been charged under the federal Controlled Substances Act, howevеr, his crime would have been only a misdemeanor because it involved only simple possession. 21 U.S.C. § 844(a). An immigration judge, seconded by the Board of Immigration Appeals, ruled that Gonzales-Gomez’s state felony was a “felony punishable under the Controlled Substances Act” and therefore an “aggravated felony” under the Immigration and Nationality Act. This meant that he could not seek cancellation оf removal, a form of discretionary relief that permanent residents who have not been convicted of an “aggravated felony” can seek. 8 U.S.C. § 1229b(a)(3). So he was ordered removed. He filed a petition for review with this court, which directed him to refile it as a petition for habeas corpus in the district court. The court granted him relief,
The circuits that have had occasion to address the question whether a state-law felony that would be punishable only as a misdemeanor by federal law is nevertheless an “aggravated felony” have split. (Until this case we had not had occasion to address the question.) Compare
United States v. Hernandez-Avalos, 251 F.3d
505, 507-08 (5th Cir.2001), and cases cited there, answering “yes,” with
Cazarez-Gutierrez v. Ashcroft,
It will help to set' forth the chain of statutory provisions that leads the government to the interpretation it defends. As we said, conviction of an “aggravated felony” bars a permanent resident from seeking cancellation of removal. The immigration statute defines “aggravated felony” as either “murder, rape, or sexuаl abuse of a minor,” or “illicit trafficking in a controlled substance ..., including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code).” 8 U.S.C. § 1101(a)(43). Section 924(c)(12) defines “drug trafficking crime” as “any felony punishаble under the Controlled Substances Act.” The implication of this chain of incorporations is that if you commit a felony violation of the Controlled Substances Act you are guilty not just of an ordinary felony, but of an “aggravated felony.” The government, however, reads “any felony punishable under the Controlled Substances Act” in section 924(c) as if the words were “any felony punishable *534 under the Controlled Substances Act as either a felony or a misdemeanor.”
In defense of this interpretation (to which we owe no deference, since Congress has not delegated the interpretation of criminal statutes to the executive branch,
Flores v. Ashcroft,
The government points out that the words “any felony punishable under the Controlled Substances Act” in section 924(c) were substituted by a 1988 amendment for “any felony violation of Federal law involving distribution, manufacture, or importation of any controlled substance.” The amendment was intended to clarify that certain conduсt, such as carrying a firearm in a drug offense, that violated the Controlled Substances Act would be a basis for an enhanced sentence pursuant to section 924(c), as had been unclear under the earlier language. 134 Cong. Rec. S17360, S17363 (1988) (remarks of Sen. Biden, who was the chairman of the Senate Judiciary Committee, where the amendment originated, and who was the principal draftsman of the amendment);
Cazarez-Gutierrez v. Ashcroft, supra,
The government argues that it is too difficult for the immigration authorities or the courts to determine whether conduct that resulted in a state fеlony conviction would also have been a felony under the Controlled Substances Act. Of course in this case it is perfectly obvious, and conceded, that the alien’s conduct would not have bеen a felony under the Act. In other cases the determination may be more difficult. But in principle the line runs between someone who possesses illegal drugs for his own consumption and someone whо possesses it with intent to sell, and in practice the line usually is drawn on the basis of quantity. If the defendant possesses more than would be reasonable for personal consumption, he is assumed to have intended to sell it. E.g.,
United States v. Puckett,
Allowing canсellation of removal to depend on how severely a particular state punishes drug crimes would have the paradoxical result of allowing states, in effect, to impose banishment from thе United States as a sanction for a violation of state law. For then if a state made the possession of one marijuana cigarette a felony, which it is perfectly entitled to do, it would be in еffect annexing banishment from the United States to the criminal sanction. States do not have the power to banish people from the United States. “[T]he regulation of aliens is so intimately blended and intеrtwined with responsibilities of the national government that where it acts, and the state also acts on the same subject, ‘the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.’ ”
Hines v. Davidowitz,
The only consistency that we cаn see in the government’s treatment of the meaning of “aggravated felony” is that the alien always loses. Recall that one of the offenses that constitute aggravated felonies for purposes of the immigration statute is “sexual abuse of a minor.” The government’s position, which we and other courts have endorsed, is that whether a particular offense constitutes “sexual abuse of a minоr” for purposes of classification as an aggravated felony is a matter of federal law rather than state law.
Gattem v. Gonzales,
We are mindful of cases that hold that when used to enhance a sentence the Controlled Substances Act does not require a finding that the state felony could have been punished as a (federal) felony under the Act.
United States v. Ibarra-Galindo,
The petition for review is granted, and the case returned to the Board of Immigration Appeals for further proceedings consistent with this opinion.