OPINION
This case presents an important issue at the intersection of immigration law and criminal law. Zia Ul Islam Rashid, a legal permanent resident, was twice convicted of misdemeanor marijuana possession in the state courts of Michigan, first in 2000 and again in 2005. He was subsequently charged by the Department of Homeland Security (DHS) with removability under the Immigration and Nationality Act (INA). Rashid conceded that he was removable because of his convictions for possessing a controlled substance, but he applied for cancellation of removal.
*440 An Immigration Judge (IJ) determined thаt Rashid’s two state misdemeanor convictions combined to constitute an aggravated felony under federal law, thereby rendering him ineligible for cancellation of removal. The BIA affirmed. He now appeals to this court, arguing that both the IJ and the BIA erred as a matter of law in concluding that his two drug-possession offenses together qualify as an aggravated felony under federal law. For the reasons set forth below, we REVERSE the judgment of the BIA and REMAND the ease for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual background
Rashid is a native and citizen of Pakistan. He became a lеgal permanent resident of the United States in November of 1993. In May of 2000, Rashid pled guilty in a Michigan state court to the criminal possession of a small quantity of marijuana, a misdemeanor offense. Five years later, in October of 2005, Rashid again pled guilty to the misdemeanor offense of marijuana possession.
DHS initiated removal proceedings against Rashid following his second conviction. According to DHS, Rashid was removable pursuant to § 237(a) (2) (A) (iii) of the INA (8 U.S.C. § 1227(a)(2)(A)(iii)), because he had in effect been convicted of an aggravated felony as defined by § 101(a)(43)(B) of the INA (8 U.S.C. § 1101(a)(43)(B)). Rashid was also charged with being subject to remove pursuant to § 237(a)(2)(B)(i) of the INA (8 U.S.C. § 1227(a)(2)(B)(i)), because he had been convicted of violating a law relating to a controlled substance on more than one occasion.
B. Procedural background
In March of 2006, Rashid conceded that he was removable on the basis of the controlled-substance offenses, but did not agree with the applicability of the aggravated-felony charge. He applied for cancellation of removal under § 240A(a) of the INA (8 U.S.C. § 1229b(a)). The IJ concluded that Rashid was ineligible for cancellation of removаl because he had in effect committed an aggravated felony under federal law. Specifically, the IJ determined that the federal law governing “recidivist possession” rendered Rashid’s second drug-possession conviction a felony drug-trafficking offense, despite the fact that both of the state convictions were misdemeanors and neither involved drug trafficking as the phrase is ordinarily understood. The IJ relied on this court’s decision in
United States v. Palacios-Suarez,
Rashid appealed to the BIA, arguing that the IJ erred in relying on Palacios-Suarez and in concluding that Rashid was ineligible for cancellation of remоval. The BIA affirmed the decision of the IJ and, like the IJ, specifically relied on Palacios-Suarez. Rashid was subsequently deported and is now living in Pakistan. This timely appeal followed.
II. ANALYSIS
A. Standard of review
Because the BIA adopted the IJ’s decision with additional commentary, we review the decision of the IJ, as supplemented by the BIA, as the final administrative order.
Gilaj v. Gonzales,
*441 B. Multiple drug-possession offenses as an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii)
At issue in this case is whether Rashid’s two state misdemeanor convictions for marijuana possession, takеn together, morph into an “aggravated felony” under the INA. This counterintuitive result is possible because of multiple layers of definitions under the INA and the Controlled Substances Act (CSA), 21 U.S.C. §§ 801-971. Section 1101(a)(43)(B) of the INA (8 U.S.C. § 1101(a)(43)(B)) includes “drug trafficking crime[s] (as defined in [§ ] 924(c) of [T]jitle 18)” as aggravated felonies. A “drug trafficking crime,” in turn, is defined as “any felony punishable under the [CSA].” 18 U.S.C. § 924(c)(2). Finally, § 844(a) of the CSA (21 U.S.C. § 844(a)) has the effect of treating anyone convicted as a recidivist drug offender as a felon, even if either or both of the offenses in isolation were only misdemeanor convictions.
The IJ and the BIA both concluded that Rashid’s two marijuana convictions, taken together, constituted the aggravated felony of recidivist possession, in violation of 21 U.S.C. § 844(a). In other words, the IJ and the BIA determined that Rashid had committed the crime of recidivist possession, an aggravated felony under the INA because it is a felony punishable under the CSA and thus a drug-trafficking crime under 18 U.S.C. § 924(c)(2). This means that Rashid was deemed ineligible for cancellation of removal because an immigrant who has been convicted of an aggravated felony is ineligible for such relief pursuant to § 1229b(a)(3) of the INA (8 U.S.C. § 1229b(a)(3)).
Rashid concedes that he is removable under 8 U.S.C. § 1227(a)(2)(B)(i) because he was convicted of two state drug-possession offenses, and has thus “been convicted of a violation of ... any law ... relating to a controlled substance ..., other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” Id. (emphasis added). He argues, however, that he has not committed an aggravated felony within the meaning of the INA and is therefore still eligible for cancellation of removal. Specifically, Rashid claims that the IJ and the BIA improperly concluded that his two statе drug-possession convictions qualify as recidivist possession.
C. The government’s motion to remand
The government has argued that this case should be remanded in order for the BIA to apply recent decisions that have refined the BIA’s approach to treating state drug-possession offenses as aggravated felonies. Specifically, the government cites Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007), and Matter of Thomas, 24 I. & N. Dec. 416 (BIA 2007). In Carachuri-Rosendo, the BIA explicitly concluded that
absent controlling [circuit] authority regarding the “recidivist possession” issue, an alien’s State conviction for simple possession of a controlled substance will not be considered an aggravated felony conviction on the basis of recidivism 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 that simple possession offense.
24 I. & N. Dec. at 394. The BIA applied Carachuri-Rosendo in Thomas and concluded that because the Eleventh Circuit did not have any controlling precedent with respect to the recidivist-possession issue, the BIA had to determine whether there was proof that the immigrant had either admitted his status as a recidivist drug offender or whether his status as *442 such had been determined by a judge or jury. 24 I. & N. Dec. at 421.
At the time the BIA issued its opinion in
Carachuri-Rosendo,
however, it noted that seven circuits, including the Sixth Circuit, have “issued precedents deciding whether, and undеr what circumstances, a State offense of simple possession of a controlled substance qualifies as an aggravated felony based on its correspondence to the Federal felony of ‘recidivist possession.’ ” 24 I. & N. at 385. Notably, the Eleventh Circuit was not among the seven circuits identified by the BIA. The decision in
Thomas
is thus not applicable to Rash-id’s case, given the BIA’s reliance on
United States v. Palacios-Suarez,
Rashid in fact points out that even after the decision in
Carachuri-Rosendo,
the BIA has issued conflicting decisions as to its interpretation of
Palacios-Suarez.
He first cites
Matter of Escot-Miranda,
File No. A45 123 036,
Moreover, although this case presents an issue that will impact both immigration law and criminal-sentencing law, this court has previously addressed the overlap between the two in this very context and “decline[d] to adopt separate interpretations of the same phrase for the immigration and sentencing cases.”
Palacios-Suarez,
D. The merits of Rashid’s argument
Over the years, two approaches developed for the treatment of state misdemeanor drug offenses in the immigration context. Some courts applied the so-called “state felony” or “Guidelines” approach that originated in the context of cases arising under the federal Sentencing Guidelines. This approach treated a state drug-possession conviction as an aggravated felony if the underlying conduct was punishable under the CSA and the conviction was classified as a felony under
either
federal or state law.
See, e.g., United States v. Hernandez-Avalos,
The more prevalent approach was the so-called “hypothetical federal felony” rule applied by this court in
Palacios-Suarez,
The Supreme Court, in
Lopez v. Gonzales,
The immigrant in
Palacios-Suarez
had two state drug-possession convictions, just as Rashid does. This court explained that “[bjecause neither of the state convictions involved a trafficking element, оur sole inquiry under § 1101(a)(43)(B) is to determine whether the two state convictions could be considered felonies punishable under the CSA.”
The court went on to note that “[f]ederal law does provide ... that if the person ‘commits such 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.’ ” Id. (quoting 21 U.S.C. § 844(a)). In other words, under the recidivist provision of § 844(a), “drug possession could be a federal felony.” Id. Palacios-Suarez was not subject to the sentencing enhancement for recidivism, however, because “[i]n order to be eligible for the enhanced punishment, the defendant’s second offense must occur after the prior drug convictiоn has become final,” and his had not. Id.
In the present case, the BIA concluded that Palacios-Suarez stands for the proposition that if a first state drug-possession conviction has become final before the commission of a second such offense, the two convictions together qualify as recidivist possession and thus as an aggravated felony. But this determination places too much weight on the dicta from Palacios-Suarez. The court in Palacios-Suarez simply noted that “under [the] recidivist provision, drug possession could be a federal felony.” Id. (emphasis added). Although this statement is undoubtedly true, the court in Palacios-Suarez had no occasion to address the full range of circumstances under which drug possession becomеs a federal felony, the issue that is presently before us. Because Palacios-Suarez’s second conviction did not even potentially qualify as recidivist possession, he was found not to have committed a drug-trafficking crime.
Moreover, at least two circuits have adopted Rashid’s position and concluded
*444
that multiple state drug-possession convictions do not automatically qualify as federal recidivist possession. One is the Third Circuit, which in
Steele v. Blackman,
The First Circuit is the other circuit to reach a similar result. In
Berhe v. Gonzales,
But both of the above cases predate the Supreme Court’s decision in
Lopez v. Gonzales,
The Seventh Circuit and the Fifth Circuit are the only two circuits that have addressed the recidivist issue
post-Lopez
even though both courts reached this issue in the context of a criminal sentencing appeal rather than in a removal proceeding. In
United States v. Pacheco-Diaz,
Congress did counterintuitively define some possession offenses as “illicit trafficking.” Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in § 924(c)(2), such as possession of сocaine base and 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. But this coerced inclusion of a few possession offenses in the definition of “illicit trafficking” does not call for reading the statute to cover others for which there is no clear statutory command to override ordinary meaning.
Lopez,
Similarly, the Fifth Circuit in
United States v. Cepeda-Rios,
The ultimate problem with the conclusions of the Seventh Circuit in
Pacheco-Diaz,
the Fifth Circuit in
Cepeda-Rios,
and the IJ and the BIA in the present case is that, as Rashid aрtly explains, they “added a hypothetical to a hypothetical.” 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.
See Steele,
Footnote six from
Lopez
does not change this analysis. Although both the Seventh Circuit and Fifth Circuit relied on the footnote to conclude that a second state misdemeanor drug offense qualifies as an aggravated felony, the footnote does not inexorably dictate such a conclusion. At the heart of
Lopez
is the need to create uniformity between offenses that might be treated as felonies under state law but would qualify as only misdemeanors under federal law.
Immediately preceding the footnote, the Court explained that “Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so.... ” Id. By way of example of how Congress “tell[s] us so,” the Court explained in footnote six that reсidivist possession is included within the definition of drug-trafficking crimes, despite how that “term[ ] is used in ordinary speech.” Id. at n. 6. Footnote six indicates that “[tjhose state possession crimes that correspond to felony violations ..., such as ... recidivist possession, ... clearly fall within the definitions” of an aggravated felony. Id.
But Lopez does not compel the conclusion that two state misdemeanor drug-possession convictions automatically qualify as the aggravated felony of recidivist possession under federal law (provided, of course, that the second offense occurs after the first conviction has become final). Instead, as the BIA recognizes, the more appropriate reading of the Lopez Court’s passing reference to recidivist possession as a drug-trafficking crime is “that 21 U.S.C. § 844(a) defines ‘recidivist possession’ as ‘an offense,’ constituting a ‘felony violation’ of the Federal drug laws, that ‘corresponds’ to some ‘state possession crimes.’ ” Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 390 (BIA 2007).
Another aspect of
Lopez
provides strong support for Rashid’s argument. In rejecting the government’s argument in
Lopez
that a state felony (but a federal misdemeanor) can qualify as an aggravated felony under federal law, the Court addressed the fact that in some states the line between misdemeanor possession and felony possession is drawn based on the quantity of drugs possessed.
Lopez,
There are also compelling due process concerns that weigh in Rashid’s favor. Specifically, 21 U.S.C. § 851 lists requirements that must be met before an individual’s sentence may be increased on the basis of prior convictions, including the filing of information with the trial court related to the prior convictions and notice to the defendant of the proposed increased punishment. A defendant must also be given the opportunity to challenge the validity of a prior conviction. These due process requirements are also applicable to recidivism charges brought under state law.
Oyler v. Boles,
We have explained that “[t]he government’s failure to notify [a defendant] that an enhanced penalty would be imposed if he had prior felony convictions ... affected [his] substantial rights. Such errors are not harmless, and cannot be overlooked.”
United States v. Williams,
The Third Circuit acknowledged these problems in
Steele v. Blackman,
[t]he problem with the District Court’s approach is not that it treated the status of being a “one time loser” as an element of the hypothetical federal felony. Rather, the problem is that Steele’s “one time loser” status was never litigated as a part of a criminal proceeding. That status was not an element of the crime charged in the second misdemeanor proceeding against him. As a result, the record evidences no judicial determination that that status existed at the relevant time. For all that the record before the immigration judge reveals, the initial conviction may have been constitutionally impaired.
Id. at 137-38. Thus, although the Seventh Circuit and Fifth Circuit both repeat the Supreme Court’s statement that recidivist possession counterintuitively qualifies as a drug-trafficking crime, a second state drug-possession offense does not automatically qualify as recidivism under the hypothetical federal-felony approach. A conviction for misdemeanor drug possession, such as Rashid’s second conviction in this case, is simply a conviction for the charged offense unless there is explicit reference to a prior misdemeanor drug-possession conviction as an element of the subsequent offense. The conviction of a prior drug-possession offense, in other words, is necessary but not sufficient in and of itself to render someone a recidivist.
Adopting Rashid’s argument is consistent with the “categorical approach” that this court generally uses to determine if an offense constitutes an aggravated felony. Under the categorical approаch, first articulated by the Supreme Court in
Taylor v. United States,
We recognize that not all states punish recidivism in the same way, that some states lack recidivism provisions altogether, and that no state prosecutes recidivism in exactly the same manner as set forth in 21 U.S.C. § 844(a). These concerns, however, do not change our conclusion in the present case. As the BIA has explained, “[i]t is not necessary ... for the structure of the underlying State law to be *448 comparable to the structure of the CSA.” Carachuri-Rosendo, 24 I. & N. Dec. at 391 (emphasis in original). Provided that an individual has been convicted under a statе’s recidivism statute and that the elements of that offense include a prior drug-possession conviction that has become final at the time of the commission of the second offense, then that individual, under the categorical approach, has committed an aggravated felony under § 844(a).
In the present case, however, Rashid’s second drug-possession conviction made no reference to his first such conviction. He was therefore not convicted of a recidivist offense under state law. For the reasons set forth above, this means that he has not committed an aggravated felony under the INA. We conclude that the BIA erred in ruling to the contrary, thus necessitating a remand for further proceedings.
E. Rashid’s request to be returned to the United States
Finally, Rashid has requested that, if he prevails on appeal, the government be required to fund his return to the United States so that he can apply for cancellation of removal. But his only citation in support of this argument is to
Califano v. Yamasaki,
In response, the government indicated in a footnote to its brief that, should we decide that further administrative proceedings are required (a point it now explicitly argues in favor of), “there is no basis for assuming that the Government would not return [Rashid] to the United States, if necessary to conduct those proceedings.” Based on the government’s apparent concession that it will return Rashid to the United States for the proceedings that we now require, any dispute regarding this issue can be resolved by the BIA.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the judgment of the BIA and REMAND the case for further proceedings consistent with this opinion.