First Circuit Discusses Split Re Hypothetical Federal Felony Approach to Determining What Constitutes an “Aggravated Felony” Under the INA

Per Berhe v. Gonzales, --- F.3d ---- , 2006 WL 2729689 (1st Cir. Sept. 26, 2006):

Herman Henry and Ambessa Hagos Berhe each petition for review of Board of Immigration Appeals' decisions ordering their removal. We have written a single opinion dealing with those separate petitions because they both question whether a state misdemeanor drug offense can constitute an "aggravated felony" for the purposes of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1101(a)(43).

We reject the petitioners' contentions that we may only look to state law in such cases and reaffirm that a state misdemeanor drug offense can amount to an "aggravated felony" if that offense would have been a felony had it been charged under the federal drug laws.

. . .

[U]nder the Board's strict "hypothetical federal felony" approach, the phrase "drug trafficking crime" meant any conviction punishable by more than one year of imprisonment under one of the federal drug laws.

This approach has received mixed reviews from the circuit courts. In the civil immigration context, several circuits have adopted the Board's hypothetical federal felony approach. E.g., Gonzales-Gomes v. Achim, 441 F.3d 532, 534-36 (7th Cir.2006); United States v. Palacios-Suarez, 418 F.3d 692, 698-700 (6th Cir.2005); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912-18 (9th Cir.2004); Gerbier, 280 F.3d at 308-12; Aguirre v. INS, 79 F.3d 315, 317-18 (2d Cir.1996). Under this approach, the underlying state classification of the offense is irrelevant. The circuits that have adopted this approach emphasize that focusing solely on federal law properly accounts for the need to apply the nation's immigration laws uniformly, and that an approach that allows the vagaries of state law to influence the determination would defeat this purpose. See, e.g., Achim, 441 F.3d at 535; Gerbier, 280 F.3d at 311-12.

At least two circuits have taken a more flexible approach. These circuits hold that a state conviction constitutes an "aggravated felony" if it (1) is punishable under one of the federal drug enforcement statutes, and (2) is a hypothetical federal felony or is a felony under the law of the convicting state. E.g., Lopez v. Gonzales, 417 F.3d 934, 936-37 (8th Cir.2005), cert. granted, --- U.S. ----, 126 S.Ct. 1651, 164 L.Ed.2d 395 (2006); United States v. Hernandez-Avalos, 251 F.3d 505, 507-08 (5th Cir.2001). This "dual approach" derives from circuit decisions interpreting the meaning of "aggravated felony" in the criminal sentencing context. [FN2]

FN2. The majority of circuits that have confronted the "aggravated felony" question in this context have utilized the dual approach, finding that a felony drug conviction under state law can amount to a "drug trafficking crime" regardless of how the crime would be classified under analogous federal law. See, e.g., United States v. Sanchez-Villalobos, 412 F.3d 572, 574 (5th Cir.2005); United States v. Ramirez, 344 F.3d 247, 251, 253-54 (2d Cir.2003); United States v. Wilson, 316 F.3d 506, 512-13 (4th Cir.2003); United States v. Ibarra-Galindo, 206 F.3d 1337, 1339-40 (9th Cir .2000); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir .1997). But see Palacios-Suarez, 418 F.3d at 697-700 (adopting the hypothetical federal felony approach for both immigration and sentencing cases).

In light of the split in circuit authority, the Board retreated from strictly applying the hypothetical federal felony approach in all cases, in favor of applying the approach of the circuit in which the case before it originated. See In re Yanez-Garcia, 23 I & N Dec. 390, 396-98 (BIA 2002). In those circuits that have not definitively ruled on the issue, the Board follows the position taken by the majority of the circuits in criminal sentencing cases-- the dual approach. Id.