conviction, he or she must file an information under 21 U.S.C. § 851 alleging, and subsequently prove, that the defendant has been previously convicted of a drug offense at the time of the offense being prosecuted." Id. The Steele court further speculated that the "initial conviction may have been constitutionally impaired." Id. at 138. The court concluded that, "[s]ince distribution of marihuana without remuneration is not inherently a felony, it seems to us that the only alternative to so regarding it consistent with the rule of lenity would be to treat any § 844 offense in this context as a misdemeanor." Id. at 137.
This Court disagrees with Petitioner's argument for various reasons. First, Steele is not binding on this court, and more importantly, the Second Circuit, in Simpson, seems to have implicitly rejected the holding in Steele. As discussed above, the defendant in Simpson had been convicted of Criminal Sale of Marihuana in the Fourth Degree under New York Penal Law § 221.40, just as had the defendant in Steele. However, the Second Circuit had no difficulty in finding that Simpson's convictions were aggravated felonies within the meaning of 8 U.S.C. § 1101(a)(43)(B). See, Simpson, 2002 WL 31866221 at *3 ("[U]nder the CSA, all three [convictions] are punishable as felonies.")*fn10 Moreover, while the Court in Steele had no information regarding the underlying facts of the defendant's convictions*fn11, leaving it free to speculate that he may have merely transferred marihuana without consideration, in the instant case there is evidence that Petitioner actually sold marihuana for money. At the Immigration Hearing, Petitioner admitted that the documents relating to his convictions under Penal Law § 221.40, which included written statements from police officers, were "accurate and correct."(Admin. Record pp. 71-72; pp. 48-50, 54-57). These documents indicate that Petitioner sold marihuana for money, and he has never claimed otherwise. Therefore, the Court finds that Steele is inapplicable to the instant case.
For all of the foregoing reasons, the Court finds that the Respondents correctly found that the Petitioner is deportable, and that Petitioner is ineligible for discretionary waiver, because he has been convicted of aggravated felonies. The application pursuant to 28 U.S.C. § 2241 is denied, and this action is dismissed.
*fn2 On July 25, 1999, Petitioner was convicted of two separate counts of violating Penal Law § 221.40.
*fn3 Since Petitioner allegedly was appealing that conviction, Respondent does not rely upon that conviction in this proceeding.
*fn4 Administrative Record, p. 44
*fn5 Despite the absence of the term "felony" in the definition in 8 U.S.C. § 1101(a)(43)(B), Matter of Davis injected such a requirement, by holding that, in order to qualify as "any illicit trafficking in any controlled substance,"the offense must be classified as a felony. As noted, however, this is arguably inconsistent with the Second Circuit's ruling in U.S. v. Pacheco, which recognized that Congress intended to include non-felonies within the broad statutory definition of an "aggravated felony." See, Pacheco, 225 F.3d at 155 ("Congress would have done better at the time of the 1996 amendments to dispense with the term `aggravated felony' and refer to this wide class of convictions as `aggravated offenses.' Congress' failure to do so, however, does not give us an excuse to ignore the clear meaning of the amendments to the INA.") (citation omitted); see also, Dawn Marie Johnson, The AEDPA and the IIRIRA: Treating Misdemeanors as Felonies for Immigration Purposes, 27 J. Legis. 477, (2000) ("[F]or all practical purposes, the AEDPA and the IIRIRA force judges to recharacterize misdemeanors and non-aggravated felonies as aggravated felonies solely for immigration purposes."); see also, Steve Brazelton, Immigration Pitfalls of the Plea Bargain: Criminal Attorneys Beware, 7 — Nov. Nev. Law. 13 (1999) (Noting that "illicit trafficking in a controlled substance" includes "any conviction that falls within the common understanding of trafficking, even if the crime is not a felony.").
*fn6 This alternative analysis would seem to be unnecessary, since as indicated, Petitioner's convictions fit within the first half of the definition. Moreover, according to the BIA, one need not consider the second half of the definition if the conviction falls clearly within the first half of the definition. See, In re Yanez, 23 I&N Dec. 390, 393, n. 4 (BIA 2002) ("The convictions at issue in this case [involving simple possession, not sale] do not fall clearly within the phrase `illicit trafficking,' and we therefore look to see whether the convictions fall within the meaning of the phrase `drug trafficking crime.'") (emphasis added) (citing Matter of Davis, 20 I&N dec. 536, 540-41 BIA 1992)). However, it is unclear to this Court whether or not the Second Circuit agrees with that view. Specifically, in U.S. v. Simpson, ___ F.3d ___, 2002 WL 31866221 (2d Cir. Dec. 23, 2002), the court had to determine whether or not a defendant's convictions for, inter alia, Criminal Sale of Marihuana in the Fourth Degree, Penal Law § 221.40, were aggravated felonies within the meaning of 8 U.S.C. § 1101(a)(43)(B). Rather than simply finding that the convictions for selling marihuana amounted to "illicit trafficking in a controlled substance," the Court instead analyzed whether or not the convictions amounted to "drug trafficking crimes" as defined in 18 U.S.C. § 924(c). Id. at *3. Accordingly, the Court will also consider whether or not Petitioner's convictions amount to "aggravated felonies" under the second half of the 8 U.S.C. § 1101(a)(43)(B) definition.
*fn7 The court in Aguirre reached this conclusion out of deference to the BIA's ruling in In re L-G, Int. Dec. 3234 (BIA 1994). See, Aguirre, 79 F.3d at 317-18. Although the BIA has since overruled In re L-G, (See, In re Yanez-Garcia, 23 I.&N. Dec. 390 (BIA 2002), the Second Circuit has not at this time indicated an intention to abandon Aguirre, although the BIA anticipates that it will do so. See, In re Elgendi, 23 I.&N. Dec. 515, 519 (BIA 2002).
*fn8 The Court would not ordinarily apply the test from Simpson in a case such as this, since, as noted, the Second Circuit uses different tests in the immigration setting versus the criminal setting. However, as indicated above, the BIA anticipates that in light of the BIA's holding in Yanez-Garcia, supra, the Second Circuit will no longer follow its holding in Aguirre. Because of this possibility, the Court will refer to both tests.
*fn9 21 U.S.C. § 844(a) provides, in relevant part: "Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both, except that if he commits such offense after a prior conviction under this subchapter or subchapter II of this chapter, or 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 less than 15 days but not more than 2 years, and shall be fined a minimum of $2,500, except, further, that if he commits such offense after two or more prior convictions under this subchapter or subchapter II of this chapter, or two or more prior convictions for any drug, narcotic, or chemical offense chargeable under the law of any State, or a combination of two or more such offenses have become final, he shall be sentenced to a term of imprisonment for not less than 90 days but not more than 3 years, and shall be fined a minimum of $5,000."
*fn10 The Court further notes that in Simpson, the Second Circuit did not require the formality required by the Third Circuit in Steele in proving that a possession offense under 21 U.S.C. § 844 would have been a felony. See, Steele, 236 F.3d at 137 ("If a United States Attorney wants a felony conviction [under 21 U.S.C. § 844], he or she must file an information under 21 U.S.C. § 851 alleging, or subsequently prove, that the defendant has been previously convicted of a drug offense at the time of the offense being prosecuted."). In Simpson, there was no indication that the defendant's prior convictions had been proven as part of his subsequent conviction for possession of marihuana. Nonetheless, it was clear from the record that the defendant did have prior drug convictions, and the Second Circuit found that the District Court had properly found that the state possession conviction would have been a felony under the CSA. Simpson, 2002 WL 31866221 at *3.
*fn11 The court noted that the defendant's statement provided "no information about those convictions or the proceedings leading up to them beyond that reflected on the `rap sheet.'" Steele, 236 F.3d at 131, n. 1.