In re Walter Antonio SANTOS-LOPEZ, Respondent
File A91 826 777 - Houston
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided May 14, 2002
23 I&N Dec. 419 (BIA 2002) | Interim Decision #3474
Under the decisions of the United States Court of Appeals for the Fifth Circuit in United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert. denied, 122 S. Ct. 305 (2001), and United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), a determination whether an offense is a “felony” for purposes of 18 U.S.C. § 924(c)(2) (2000) depends on the classification of the offense under the law of the convicting jurisdiction. Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.- Each of the respondent‘s two convictions for possession of marihuana is classified as a misdemeanor offense under Texas law; therefore, neither conviction is for a “felony” within the meaning of
18 U.S.C. § 924(c)(2) or an “aggravated felony” within the meaning of section 101(a)(43)(B) of the Immigration and Nationality Act,8 U.S.C. § 1101(a)(43)(B) (2000).
FOR RESPONDENT: Isaias D. Torres, Esquire, Houston, Texas
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: John Donovan, Assistant District Counsel
BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman; SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, GUENDELSBERGER, ROSENBERG, GRANT, MOSCATO, MILLER, BRENNAN, ESPENOZA, OSUNA, OHLSON, HESS, and PAULEY, Board Members.
GUENDELSBERGER, Board Member:
The respondent appeals from an Immigration Judge‘s decision finding him removable as charged and ineligible for any relief from removal. The appeal will be sustained and the record will be remanded for further proceedings.
The respondent is a native and citizen of El Salvador whose status was adjusted to that of a lawful permanent resident on October 27, 1989. The record reflects that he has two Texas state court convictions for possession of marihuana in the quantity of 0-2 ounces, both in violation of section 481.121 of the Texas Penal Code. His offenses are “class B misdemeanors,” punishable under Texas law by “confinement in jail for a term not to exceed 180 days” and/or a fine not to exceed $2,000. See
The issue in this case is whether the respondent‘s state drug convictions fall within the definition of a “drug trafficking crime” contained in
Section 101(a)(43) of the Act defines the categories of offenses considered “aggravated felonies” under the immigration laws and provides that the term aggravated felony “applies to an offense described in this paragraph whether in violation of Federal or State law.” A “drug trafficking crime (as defined in section 924(c) of title 18, United States Code),” which is included in section 101(a)(43)(B) of the Act, is defined as follows:
[T]he term “drug trafficking crime” means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).
In Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), we held that, because the meaning of the phrase “drug trafficking crime” in
The Fifth Circuit has held that an offense is a “drug trafficking crime” under
The first requirement is consistent with our decision in Matter of Barrett, 20 I&N Dec. 171 (BIA 1990), that a state drug offense may be considered an aggravated felony so long as the state offense is one that would be punishable under one of the three acts referenced in
As to the second requirement identified above, i.e., whether the offense is a felony, the Fifth Circuit has stated that “a state drug offense is properly deemed a ‘felony’ within the meaning of
In United States v. Restrepo-Aguilar, supra, at 364-65, the First Circuit found that the term “felony” in
In Restrepo-Aguilar, the court noted that under the Controlled Substances Act‘s “unambiguous definition, a state offense . . . which is classified as a felony under the law of the convicting state would clearly qualify as a felony for that definition‘s purposes, even if the offense could be punished only as a misdemeanor under federal law.” United States v. Restrepo-Aguilar, supra, at 364-65 (emphasis added).1 The Eighth Circuit also concluded, in accord with the First Circuit, that the relevant measure of a state drug offense is whether “‘the offense is classified as a felony under the law of the relevant state.‘” United States v. Briones-Mata, supra, at 309 (emphasis added) (quoting United States v. Restrepo-Aguilar, supra, at 365).
Given the Fifth Circuit‘s reliance on the reasoning in Restrepo-Aguilar and Briones-Mata, we find it appropriate in this case to refer to the definition of a felony in
Because the State of Texas classified the respondent‘s offenses as misdemeanors, neither of his crimes is a “felony” offense under
Accordingly, the respondent‘s appeal will be sustained. However, given that the respondent remains removable as charged under section 237(a)(2)(B)(i) of the Act, as an alien convicted of a controlled substance violation, we will remand the record to the Immigration Court for further consideration of the respondent‘s eligibility for relief from removal.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion, and for the entry of a new decision.