Argaw v. Ashcroft ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WONDEMU GEBREEGZIABH ARGAW, 
Petitioner,
v.  No. 03-2436
JOHN ASHCROFT, Attorney General,
Respondent.

On Petition for Review of an Order of
the Board of Immigration Appeals.
(A46-087-001)
Argued: September 30, 2004
Decided: January 31, 2005
Before MICHAEL and DUNCAN, Circuit Judges,
and Roger W. TITUS, United States District Judge
for the District of Maryland,
sitting by designation.
Petition for review granted; order of removal reversed by published
opinion. Judge Michael wrote the opinion, in which Judge Duncan
and Judge Titus joined.
COUNSEL
ARGUED: Sidney Leighton Moore, III, Atlanta, Georgia, for Peti-
tioner. Jonathan F. Cohn, UNITED STATES DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Civil Division, Washing-
ton, D.C., for Respondent. ON BRIEF: Peter D. Keisler, Assistant
2 ARGAW v. ASHCROFT
Attorney General, Civil Division, David V. Bernal, Assistant Direc-
tor, Jennifer Paisner, UNITED STATES DEPARTMENT OF JUS-
TICE, Office of Immigration Litigation, Civil Division, Washington,
D.C., for Respondent.
OPINION
MICHAEL, Circuit Judge:
Wondemu G. Argaw, an alien with a green card, is subject to an
order of removal, and he petitions for review of the decision of the
Board of Immigration Appeals (BIA or the Board). The case arose
when Argaw returned from a visit to Ethiopia in possession of khat,
a plant whose leaves are chewed as a stimulant. The order of removal
against Argaw stands on the BIA’s legal determination that khat is a
controlled substance. We lack jurisdiction to review an order of
removal against an alien who is removable for committing certain
criminal offenses, such as the importation of a controlled substance.
See 8 U.S.C. § 1252(a)(2). We have jurisdiction, however, to deter-
mine whether the facts that would deprive us of jurisdiction are pres-
ent. In this case, one of the jurisdiction-stripping facts — a controlled
substance offense — is missing. Because khat is not listed as a con-
trolled substance and it has not been established when khat might
contain a controlled substance, Argaw’s conduct did not amount to a
criminal offense. Accordingly, we are not deprived of jurisdiction,
and we reverse the order of removal.
I.
Argaw, a lawful permanent resident of the United States, returned
to Washington Dulles Airport on November 7, 1998, after a two-
month visit to Ethiopia, his native country. On his Customs Declara-
tion form, Argaw checked a box indicating that he was bringing agri-
cultural products into the United States. When the U.S. Customs
Service inspected his luggage, agents found a quantity of khat, a tradi-
tional herbal stimulant widely used in East Africa and the lower Ara-
bian peninsula. The Customs agents seized the khat, believing it was
a controlled substance under U.S. law. Argaw, who speaks Amharic
ARGAW v. ASHCROFT 3
and reads only a "little" English, J.A. 58, signed a second Customs
form, entitled "Agreement to Pay Monetary Penalty," in which he
agreed to pay a penalty of $500 for failing to declare a controlled sub-
stance, listed as 6.65 pounds of khat. He did not have the assistance
of an interpreter when he signed the penalty form.
Later that same day, an Immigration and Naturalization Service
(INS) agent took a sworn statement from Argaw with the assistance
of an interpreter. According to Argaw, he was carrying five or six
bunches of khat, or about a handful, that he had bought in Ethiopia
for the equivalent of approximately sixteen U.S. dollars. The khat was
to be a gift for family and friends in the United States. Argaw insisted
he did not know that khat was illegal in this country. Finally, Argaw
said he had other "twig and leaf" material, J.A. 96, used for making
a fermented drink, that the Customs agents mistook for khat.
The INS initiated removal proceedings against Argaw. He was
charged as (1) an arriving alien who admits committing acts that con-
stitute the essential elements of a violation of a controlled substances
law, in this case the unlawful importation of such a substance, and as
(2) an arriving alien who the INS has reason to believe is an illicit
trafficker in a controlled substance. 8 U.S.C. § 1182(a)(2)(A)(i)(II);
21 U.S.C. § 952; 8 U.S.C. § 1182(a)(2)(C) (1999) (amended 2000).
Argaw’s attempted importation of the khat was the basis for the
charges. Khat, however, is not listed as a controlled substance under
the Controlled Substances Act (CSA). See 21 U.S.C. § 812; 21 C.F.R.
§ 1308.11-15. Two chemicals associated with khat, cathinone, a
Schedule I controlled substance, and cathine, a Schedule IV con-
trolled substance, are listed as controlled substances under the CSA.
See 21 U.S.C. § 812; 21 C.F.R. § 1308.11(f)(3); 21 C.F.R.
§ 1308.14(e)(1). Argaw’s khat was never analyzed to determine
whether it contained either cathinone or cathine.
The central issue in the proceedings before the immigration judge
and the BIA was whether khat is a controlled substance or the equiva-
lent. The immigration judge, after noting that federal regulations list
cathinone as a controlled substance, see 21 C.F.R. § 1308.11(f)(3),
concluded "that cathinone is khat." J.A. 38. This led the judge to
determine that Argaw was removable on both grounds asserted by the
INS. On appeal the BIA "t[ook] administrative notice of the fact that
4 ARGAW v. ASHCROFT
khat is an East African plant containing Cathinone," J.A. 5, and con-
cluded that khat is the legal equivalent of the controlled substance,
cathinone. The Board dismissed Argaw’s appeal, noting that he was
removable as charged. Thereafter, Argaw filed a petition for review
in this court.
II.
Our power to review a final order of removal is limited by 8 U.S.C.
§ 1252(a)(2). This section provides that "no court shall have jurisdic-
tion to review any final order of removal against an alien who is
removable by reason of having committed a criminal offense covered
in" § 1182(a)(2), among others. 8 U.S.C. § 1252(a)(2)(C). Section
1182(a)(2) includes the grounds for removal alleged in this case: the
alien admitted acts that constitute the essential elements of a con-
trolled substance offense, id. § 1182(a)(2)(A)(i)(II), and the INS had
reason to believe the alien was a trafficker in a controlled substance,
id. § 1182(a)(2)(C). We are therefore without jurisdiction if two facts
exist: the petitioner is an alien, and he committed one of the covered
offenses. The provision that limits our jurisdiction, § 1252(a)(2)(C),
"does not declare that the agency’s determinations of alienage and
deportability are final and unreviewable. It merely says there will be
no [review]" when the two jurisdiction-stripping facts are present.
Hall v. INS, 167 F.3d 852, 855 (4th Cir. 1999) (citation omitted). We
retain jurisdiction to determine whether these facts are present. Lewis
v. INS, 194 F.3d 539, 541-42 (4th Cir. 1999).
It is undisputed that Argaw is an alien. The second fact that deter-
mines jurisdiction is contested. It is whether Argaw is removable
because he admitted to acts that constitute the essential elements of
a controlled substance offense or because the INS has reason to
believe he is a trafficker in a controlled substance. Argaw and the
Attorney General agree that resolution of this jurisdictional fact
requires us to determine whether Argaw’s khat is a controlled sub-
stance under U.S. law. Because the INS does not administer the crimi-
nal laws relating to controlled substances, we do not defer to the
BIA’s interpretation of those laws. Sutherland v. Reno, 228 F.3d 171,
174 (2d Cir. 2000). We therefore consider de novo whether khat is a
controlled substance. See id.
ARGAW v. ASHCROFT 5
III.
A.
According to the Attorney General, the second jurisdiction-
stripping fact is established by Argaw’s admission that he (1) know-
ingly and willfully (2) imported (3) a controlled substance, the essen-
tial elements of a violation of 21 U.S.C. § 952. See 21 U.S.C. § 952
(outlawing the importation of controlled substances); United States v.
Samad, 754 F.2d 1091, 1096 (4th Cir. 1984) (noting that scienter is
an essential element of a § 952 crime). Again, the main issue is
whether khat is a controlled substance or the equivalent. Khat is not
a controlled substance, and it was not established that Argaw’s khat
contained either cathinone or cathine, controlled substances that
would have rendered the khat illegal. In their decisions both the immi-
gration judge and the BIA held that khat is the legal equivalent of
cathinone, a Schedule I controlled substance. Neither decision dis-
cussed cathine, the Schedule IV substance. Argaw does not dispute
that khat contains cathinone when it is first harvested, but he argues
that within seventy-two hours it may not contain any cathinone at all.
In determining that khat is the legal equivalent of cathinone, the
immigration judge relied on the INS’s submission of a printout from
the website of an organization called "The Life Education Center."
The printout stated, apparently without elaboration, that khat contains
cathinone. Based entirely on this unauthenticated document, the
immigration judge concluded that "cathinone is khat." J.A. 38. On
appeal the BIA did not rely on the internet printout. Instead, the BIA
took "administrative notice of the fact that khat is an East African
plant containing Cathinone." J.A. 5. The BIA based this determination
on three sources, two court opinions and one supplementary informa-
tion statement issued by the Drug Enforcement Administration
(DEA). These sources are not sufficient to establish that khat always
contains cathinone.
The first opinion cited by the BIA, United States v. Hofstatter, 8
F.3d 316 (6th Cir. 1993), dealt with a prosecution for the manufacture
of several stimulants, none of which was related to khat. In recounting
the facts, the court noted in passing that a search of one defendant’s
car turned up, among other things, documents that "described ‘khat’
(an East African plant containing cathinone)." Id. at 320. This was the
6 ARGAW v. ASHCROFT
opinion’s only reference to khat. In the second opinion cited by the
BIA, United States v. Hussein, 230 F. Supp. 2d 109 (D. Me. 2002),
aff’d, 351 F.3d 9 (1st Cir. 2003), the district court assessed the evi-
dence in a prosecution for possession with intent to distribute a sub-
stance containing cathinone, a controlled substance. According to the
court, the record "indicate[d] that cathinone is present in fresh khat,
but is highly unstable and degrades rapidly . . . within 72 hours after
the khat leaf is picked." Id. at 114. The court noted specifically that
"[t]here was no evidence whether cathinone or cathine ever com-
pletely disappears from khat." Id. at 115. Last, the BIA relied on the
DEA’s supplementary information statement issued when the agency
published the rule that added cathinone to the federal schedules of
controlled substances. According to the statement, "[w]hen khat con-
tains cathinone, khat is a Schedule I substance." 58 Fed. Reg. 4317
(1993)(emphasis added). This tends to contradict, rather than support,
the BIA’s apparent conclusion that khat always contains cathinone.
Indeed, none of the sources cited by the BIA supports the proposition
that khat and cathinone are legal equivalents or that khat always con-
tains cathinone. If anything, these sources suggest that cathinone
quickly disappears from khat, perhaps as soon as seventy-two hours
after the leaf is harvested.
The Attorney General attempts to brush aside "the fact that [the
BIA] may have erred in finding khat a controlled substance because
it always contains cathinone." Respondent’s Brief at 23. According to
the Attorney General, two new arguments, neither of which was pre-
sented in the administrative proceedings, support his claim that khat
is a controlled substance or the legal equivalent. We will consider
these arguments because they speak to the legal question of khat’s
status under the laws dealing with controlled substances. First, the
Attorney General argues that khat is a controlled substance because
the DEA has demonstrated an intent to regulate it as a Schedule IV
substance. Second, he argues that khat is the equivalent of a con-
trolled substance because it always contains cathine. To support these
arguments, the Attorney General relies mainly on two supplementary
information statements that accompanied the DEA’s final rules sched-
uling cathinone and cathine. The supplementary information state-
ment attached to the May 17, 1988, rule that placed cathine in
Schedule IV said: "khat will be subject to the same Schedule IV con-
trols as cathine." 53 Fed. Reg. 17,460 (1988). The statement accom-
ARGAW v. ASHCROFT 7
panying the rule placing cathinone in Schedule I on January 14, 1993,
referred to the earlier statement: "In a previously published final rule,
the [DEA] Administrator stated that khat will be subject to the same
Schedule IV controls as cathine." 58 Fed. Reg. 4,317 (1993).
According to the Attorney General, these supplementary informa-
tion statements indicate that the DEA "placed khat itself . . . in the
Schedule IV category of controlled substances." Respondent’s Brief
at 20. The statements may indicate that the DEA planned to list khat
in Schedule IV; however, the statements were not incorporated into
the schedules appearing in the Code of Federal Regulations. More-
over, the DEA has never proposed to add khat to the list of controlled
substances in accordance with the formal rulemaking procedures out-
lined in the Controlled Substances Act. See 21 U.S.C. § 811. Khat, in
short, is not a controlled substance because the schedules themselves
contain no reference to the plant. See 21 C.F.R. § 1308.11-15.
Nothing in the DEA’s two statements of supplementary informa-
tion substantiates the Attorney General’s argument that khat always
contains cathine. The statement attached to the 1988 rule refers to
cathine as "one of the psychoactive substances found in khat," 53 Fed.
Reg. 17,460 (1988), but neither statement indicates that cathine is
always present in khat. Indeed, the Attorney General fails to cite any
authority to establish that cathine never disappears from khat. The
few published cases discussing khat indicate that without scientific
testing on a case-by-case basis, it cannot be determined when cathine
or cathinone appears in khat. The First Circuit, in reviewing an appeal
from a cathinone conviction, observed that "[t]he evidence presented
at trial does not disclose whether either cathinone or cathine ever
completely disappears from khat." United States v. Hussein, 351 F.3d
9, 11 (1st Cir. 2003). An Ohio appellate court likewise noted that it
was not clear "whether cathinone or cathine ever completely disapp-
ear[s] from khat." Ohio v. Samatar, 787 N.E.2d 691, 703 (Ohio App.
2003). At this juncture, there is no reasonable basis for the conclusion
that khat always contains cathine.
Although Argaw admitted to importing (and possessing) khat, khat
is not listed as a controlled substance. Moreover, there is no evidence
that the khat Argaw imported contained either controlled substance,
cathinone or cathine. For these reasons, the Attorney General has
8 ARGAW v. ASHCROFT
failed to establish the jurisdiction-stripping fact that Argaw admitted
to the knowing importation of a controlled substance, a violation of
21 U.S.C. § 952. Because the controlled substance element of the
§ 952 crime has not been established, we need not consider the
scienter element.*
B.
The alternative jurisdiction-stripping fact would be that the INS
had reason to believe Argaw was an illicit trafficker in a controlled
substance. See 8 U.S.C. § 1182(a)(2)(C). As our discussion in part
III.A, supra, reveals, khat is not a controlled substance, and khat’s
chemical properties are not sufficiently known to establish, without
testing, whether a particular batch of khat contains either controlled
substance, cathinone or cathine. Argaw’s khat was never tested.
Under these circumstances the INS could not have reason to believe
that Argaw, who admittedly imported khat, was an illicit trafficker in
a controlled substance.
C.
One of the two facts necessary to deprive us of jurisdiction is miss-
ing, so we have jurisdiction to review the final order of removal
issued against Argaw. Because it was not established either that
Argaw imported a controlled substance or that the INS had reason to
believe he was an illicit trafficker in a controlled substance, we grant
Argaw’s petition for review and reverse the order of removal.
*In his brief the Attorney General asserts that Argaw also "admitted
to the essential elements of an offense relating to khat" when he agreed
to pay a civil penalty for bringing khat into the United States without
declaring it, in violation of the Tariff Act, 19 U.S.C. § 1497. Respon-
dent’s Brief at 24. This could not take away our jurisdiction because a
§ 1497 violation was not the basis for the removal order against Argaw.
Even if a removal order based on a § 1497 violation could be shielded
by the jurisdiction-stripping provision, 8 U.S.C. § 1252(a)(2)(C), we are
not deprived of jurisdiction unless the § 1497 violation was "actually the
basis, or one of the bases," of the order. Yousefi v. INS, 260 F.3d 318,
325 (4th Cir. 2001).
ARGAW v. ASHCROFT 9
PETITION FOR REVIEW GRANTED;
ORDER OF REMOVAL REVERSED