Petitions for review of orders of the Board of Immigration Appeals sustaining the Department of Homeland Security's appeals and vacating the decisions of Immigration Judges granting petitioners' applications for cancellation of removal upon finding that petitioners' second state convictions for possession of a controlled substance were aggravated felonies because those offenses could have been charged in federal court as recidivist possession. We hold that a second conviction for simple controlled substance possession under state law is not a felony under the Controlled Substances Act because the offense of conviction does not proscribe conduct punishable as a felony as it does not correspond in any meaningful way with the federal crime of recidivist possession even if it could have been prosecuted in state court as a recidivist offense. We further clarify that our decision in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), did not hold to the contrary.
PETITIONS GRANTED; VACATED AND REMANDED.
The opinion of the court was delivered by: Straub, Circuit Judge
Argued: September 24, 2008
Before CALABRESI, STRAUB, AND RAGGI, Circuit Judges.
In these cases, which we heard in tandem and now consolidate for disposition, Petitioners Karen Nicola Alsol and Donald Overton Powell seek review of decisions of the Board of Immigration Appeals ("BIA") vacating decisions by an Immigration Judge ("IJ") granting them cancellation of removal. In 07-2068-ag(L) and 08-1942-ag(CON), Petitioner Alsol appeals from orders of the BIA (1) sustaining the Department of Homeland Security's ("DHS") appeal and vacating the October 31, 2006 decision of IJ Alan A. Vomacka granting her application for cancellation of removal, In re Karen Nicola Alsol, aka Karen N. Alsol, No. A43 732 327 (B.I.A. Apr. 16, 2007), vacating No. A43 732 327 (Immig. Ct. N.Y. City Oct. 31, 2006), and (2) denying her motion to reopen or reconsider, In re Karen Nicola Alsol, aka Karen N. Alsol, No. A43 732 327 (B.I.A. Mar. 25, 2008). Petitioner Powell appeals from a BIA decision sustaining the DHS's appeal from IJ Noel Ann Brennan's order granting cancellation of removal. In re Donald Overton Powell, No. A17 560 142 (B.I.A. Feb. 25, 2008), vacating No. A17 560 142 (Immig. Ct. N.Y. City Oct. 29, 2004). We grant the petitions for review, vacate the decisions below, and remand for proceedings consistent with this opinion.
The issue in these cases is whether a second conviction for simple drug possession under state law is a felony under the Controlled Substances Act ("CSA") because it could have been prosecuted as a recidivist offense under 21 U.S.C. § 844(a). We hold that it is not. We further clarify that our sentencing decision in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), does not foreclose this holding.
On September 5, 2002, Alsol pled guilty to one count of criminal possession of a controlled substance in the seventh degree in violation of New York Penal Law § 220.03 for possession of a controlled substance. She was sentenced to three days imprisonment. On February 27, 2003, Alsol again pled guilty to one count of criminal possession of a controlled substance in the seventh degree; she was sentenced to five days imprisonment. Three years later, on July 18, 2006, DHS took Alsol into custody and placed her in removal proceedings. In front of the IJ, Alsol conceded that she was removable under 8 U.S.C. § 1227(a)(2)(B)(I) for having been convicted of a crime relating to a controlled substance. However, she did not concede she was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for an aggravated felony conviction and applied for cancellation of removal under 8 U.S.C. § 1229b(a). On October 31, 2006, IJ Vomacka found that Alsol's second possession conviction was not an aggravated felony and that she was eligible for cancellation of removal, relying on In re Elgendi, 23 I. & N. Dec. 515 (B.I.A. 2002). Upon finding that Alsol warranted a favorable exercise of discretion, the IJ granted her application for cancellation of removal.
On December 5, 2006, the U.S. Supreme Court decided Lopez v. Gonzales, 127 S.Ct. 625 (2006), holding that "a state offense constitutes a 'felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable as a felony under that federal law." Id. at 633. At the same time, in a footnote, the Court noted:
Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in § 924(c)(2), such as . . . 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.
On April 16, 2007, in a divided decision, the BIA sustained DHS's appeal in Alsol's case, vacated the IJ's decision, found Alsol to be ineligible for cancellation of removal, and ordered Alsol removed to Jamaica. The BIA based its decision on Lopez and our decision in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002).*fn1 On May 15, 2007, Alsol, proceeding pro se and still in detention, filed a petition for review with this Court. At the same time, Alsol filed a motion to reopen and reconsider with the BIA, also pro se, arguing that her first conviction was not final at the time of her second conviction and that the IJ's decision should be affirmed.
On December 13, 2007, the BIA decided In re Carachuri-Rosendo, 24 I. & N. Dec. 382 (B.I.A. 2007) (en banc), appeal docketed, Carachuri-Rosendo v. Mukasey, No. 07-61006 (5th Cir. Dec. 24, 2007), and In re Thomas, 24 I. & N. Dec. 416 (B.I.A. 2007). The BIA held that, absent countervailing circuit precedent, a second drug possession conviction was not an aggravated felony unless the petitioner's "status as a recidivist drug offender was either admitted . . . or determined by a judge or jury in connection with a prosecution for [the second] offense." Carachuri-Rosendo, 24 I. & N. Dec. at 394; accord Thomas, 24 I. & N. Dec. at 421. Thus, a second drug possession offense could not be equated to a federal felony under the CSA unless it "corresponds in a meaningful way to the essential requirements that must be met before a felony sentence can be imposed under Federal law on the basis of recidivism." Carachuri-Rosendo, 24 I. & N. Dec. at 390.
On March 25, 2008, the BIA denied Alsol's motion to reopen and reconsider, finding principally that despite its decision in Carachuri-Rosendo, 24 I. & N. Dec. 382, our decision in Simpson, 319 F.3d 81, represented countervailing circuit precedent barring application of the Carachuri-Rosendo rule. On April 23, 2008, Alsol, through counsel, petitioned for review of the denial of her motion to reopen and reconsider; we consolidated Alsol's two petitions for review.
II. Donald Overton Powell
On July 3, 1997, Powell pled guilty to seventh degree criminal possession of a controlled substance in violation of New York Penal Law § 220.03, a misdemeanor. He was sentenced to six months' imprisonment. On January 8, 2001, Powell again pled guilty to seventh degree criminal possession of a controlled substance in violation of § 220.03. He was given a conditional discharge and sentenced to two days' community service. On October 29, 2004, IJ Brennan granted Powell cancellation of removal after finding that Simpson was not binding, Powell was not charged by the New York State courts as a recidivist, and that Powell's conviction was not "analogous to a Federal felony, because his status as a recidivist was not actually litigated in the state prosecution for simple possession." DHS appealed. On October 20, 2006, the BIA sustained DHS's appeal and ordered Powell removed. Powell petitioned for review, but the parties stipulated to withdraw the petition and remand the case to ...