First Circuit Discusses Split re Whether a State Drug Offense is an “Aggravated Felony” under the Immigration and Naturalization Act

Per Berhe v. Gonzales, 464 F.3d 74 (1st Cir. Sep 26, 2006):

The INA [Immigration and Naturalization Act] establishes a comprehensive list of offenses that qualify as aggravated felonies. . . . Included in this list is "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18) .... whether in violation of State or Federal law." 8 U.S.C. § 1101(a)(43)(B) (emphasis added). . . .

The Board [of Immigration Appeals] has interpreted § 1101(a)(43)(B) to provide two paths for arriving at an aggravated felony finding. The first route is based on the "illicit trafficking in a controlled substance" language, and is not relevant to these cases. . . . The second route is premised on the language "drug trafficking crime" as defined in 18 U.S.C. § 924(c)(2). The Board concluded in Matter of Davis, 20 I & N Dec. 536, 1992 WL 443920 (BIA 1992), that in terms of the "drug trafficking crime" route, any state drug offense, whether classified as a felony or misdemeanor in that state, is an aggravated felony if the same conduct would have been punishable as a felony if charged under one of the three federal statutes enumerated in § 924(c)(2). Id. at 543; see also Gerbier v. Holmes, 280 F.3d 297, 306 (3d Cir.2002) This methodology is sometimes referred to as the "hypothetical federal felony" approach. See Gerbier, 280 F.3d at 306. . . . [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-Gomez 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 (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.

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, 2002 WL 993589 (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.

. . .

[W]e conclude that the Board was correct to employ the hypothetical federal felony methodology outlined in Amaral v. INS, 977 F.2d 33 (1st Cir.1992). For the purposes of determining whether a state drug offense is an "aggravated felony" under the INA, our circuit precedent permits an analysis that considers whether the underlying offense would have been punishable as a felony under federal law. As discussed above, we are not alone. While there is disagreement concerning whether it is permissible to consult state law in making the aggravated felony determination, as far as we can tell, all the circuits to have considered the issue agree that a state drug offense that would be punishable as a felony under the CSA is a "drug trafficking crime" under § 924(c)(2). To our knowledge, no circuit has endorsed the approach urged here--requiring that the underlying offense be a felony under state law.