Jordan v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 2, 2006
Charles R. Fulbruge III
Clerk
No. 05-60539
Summary Calendar
LYNDON L. JORDAN,
Petitioner,
versus
ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A36 481 680
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Lyndon Jordan, a native of Guyana and a lawful permanent
resident of the United States, petitions for review of the final
order of the Board of Immigration Appeals (BIA) affirming without
opinion an Immigration Judge (IJ) decision finding Jordan
removable as an alien convicted of an aggravated felony. Under
8 U.S.C. § 1227(a)(2)(A)(iii). Jordan argues that the IJ erred
in finding a 2002 New York marihuana conviction to be an
aggravated felony under 8 U.S.C. § 1227.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Under 8 U.S.C. § 1252(a)(2), this court has jurisdiction to
review claims, such as Jordan’s, raising questions of law.
8 U.S.C. § 1252(a)(2)(D). See also Rodriguez-Castro v. Gonzales,
427 F.3d 316, 319 (5th Cir. 2005) (holding § 1252 applies
retroactively to cases pending upon its enactment); Omari v.
Gonzales, 419 F.3d 303, 306 (stating that question of whether a
prior conviction is an aggravated felony is a legal one). Even
if the REAL ID Act did not provide jurisdiction, this court would
“have jurisdiction to determine [its] own jurisdiction, i.e., to
determine whether the conviction qualifies as an aggravated
felony.” Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005)).
This court accords substantial deference to the BIA’s
interpretation of the INA. Omari, 419 F.3d at 306-07 (citing
Smalley v. Ashcroft, 354 F.3d 332, 335-36 (5th Cir. 2003)). The
court reviews de novo “whether the particular statute that the
prior conviction is under falls within the relevant INA
definition.” Id. (citations omitted). Because the BIA affirmed
"without opinion," this court directly review the IJ's decision.
Soadjede v. Ashcroft, 324 F.3d 830, 831-32 (5th Cir. 2003).
Under the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), an alien who commits an aggravated
felony is removable. 8 U.S.C. § 1227(a)(2)(A)(iii). Under 8
U.S.C. § 1101(a)(43)(B), an “aggravated felony” includes “drug
trafficking crime[s], as defined by 18 U.S.C. § 924(c). A “drug
trafficking crime” has two elements under § 924(c)(2): (1) the
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offense is punishable under the Controlled Substances Act (CSA)
and (2) that the offense is a felony under federal or state law.
United States v. Sanchez-Villalobos, 412 F.3d 572, 574 (5th Cir.
2005), cert. denied, 126 S.Ct. 1142 (2006). Such a drug offense
is a felony if it “is punishable by imprisonment for more than
one year under any law of the United States or of a State or
foreign country that prohibits or restricts conduct relating to
narcotic drugs, marihuana, anabolic steroids, or depressant or
stimulant substances.” 21 U.S.C. § 802(44); see Sanchez-
Villalobos, 412 F.3d at 574 (holding that § 802(44) provides the
applicable definition of “felony”).
In analogous immigration cases involving determination of
whether a prior conviction constitutes an aggravated felony,
courts employ a categorical approach, looking first to the
elements of the offense, and then to the charging documents,
stipulated facts, or some other formal finding of the relevant
facts of conviction. See Omari, 419 F.3d at 307. If the offense
conduct charged can encompass something less than an aggravated
felony, the offense is not deemed an aggravated felony. Id.In the instant case, Jordan was convicted of violating New
York Penal Law § 221.40, stating “A person is guilty of criminal
sale of marihuana in the fourth degree when he knowingly and
unlawfully sells marihuana except as provided in section 221.35
of this article.” N.Y. PENAL LAW § 221.40. The violation is a
state class A misdemeanor, for which the sentence “shall not
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exceed one year.” Id.; N.Y. PENAL LAW § 70.15. Section 221.35,
criminal sale of marihuana in the fifth degree (also a
misdemeanor), penalizes an individual who “knowingly and
unlawfully sells, without consideration, one or more
preparations, compounds, mixtures or substances containing
marihuana and the preparations, mixtures or substances are of an
aggregate weight of two grams or less; or one cigarette
containing marihuana.” N.Y. PENAL LAW § 221.35. An offense would
not be included in § 221.35 (and would be included in § 221.40)
either if the sale was (1) for consideration or (2) for an amount
of more than two grams or one cigarette. See N.Y. PENAL LAW
§ 221.35. Under New York law “sell” is defined as “to sell,
exchange, give or dispose of to another, or to offer or agree to
do the same.” N.Y. PENAL LAW § 220.00.
An individual may violate § 221.40 without that conviction
qualifying as a federal felony. If an individual either sells
for consideration less than two grams or one cigarette of
marihuana or distributes without consideration more than two
grams or one cigarette of marihuana (but less than 25 grams) then
he has violated § 221.40 because the crime is not encompassed by
§ 221.35 (but has not risen to the 25 grams level of N.Y. PENAL
LAW § 221.45). That state misdemeanor would not be a federal
felony if it fell within the purview of 21 U.S.C. § 841(b)(4).
Section 841(b)(4) provides that an individual who “distribut[es]
a small amount of marihuana for no renumeration” shall be
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punished as if for simple possession (21 U.S.C. § 844). A
simple possession conviction under § 844 is punishable by a
maximum term of imprisonment of one year, unless the individual
has a prior narcotics conviction, in which case the individual
may be sentenced to a maximum term of two years imprisonment. 21
U.S.C. § 844(a). Under 18 U.S.C. § 3559(a), a simple possession
conviction without a prior narcotics conviction would be a
federal misdemeanor (less than one year imprisonment), but the
two year maximum sentence conviction would be a federal felony.
Thus, a violation of N.Y. PENAL LAW § 221.40 is not categorically
an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B). See
Omari, 419 F.3d at 308 (holding that a conviction under federal
fraud statute was not categorically an aggravated felony for
immigration purposes).
Because the New York statute at issue is divisible, the
court may look to Jordan’s actual conviction to determine if it
was for conduct qualifying as an aggravated felony. See id. 419
F.3d at 308 (citations omitted). In such an analysis, the court
examines the record of conviction to determine if the particular
conviction qualifies as an aggravated felony. Id. In a
situation involving a guilty plea, the court may consider ”the
charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to
which the defendant assented.” Shepard v. United States, 544
U.S. 13, 20-21 (2005); see Omari, 419 F.3d at 308. The court may
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not consider “[d]ocuments not of that kind, including police
reports and complaint applications.” Omari, 419 F.3d at 308.
In this case, the only formal document of Jordan’s
conviction in the administrative record is the Certificate of
Disposition of the 2002 conviction. That document states only
that Jordan pleaded guilty to a violation of N.Y. PENAL LAW
§ 221.40. The document does not indicate that the conduct
involved a sale for consideration or the distribution or sale of
more than a small amount. The document also does not indicate
that Jordan has prior narcotics convictions. The documentation
does not support a finding that Jordan engaged in conduct or had
prior convictions that would raise his violation to the level of
a federal felony. See Omari, 419 F.3d at 308-09 (finding record
insufficient to establish a prior conviction was an aggravated
felony where the only available formal documents of conviction
did not show that actual offense qualified). Thus, the IJ erred
in finding that the prior state conviction qualified as an
aggravated felony for purposes of removal.
The Government additionally argues that the IJ did not err
because Jordan was removable as an alien convicted of an offense
involving a controlled substance. See 8 U.S.C. § 1227. Under 8
U.S.C. § 1227, “[a]n alien who at any time after admission has
been convicted of a violation of . . . any law or regulation of a
State, the United States, or a foreign country relating to a
controlled substance (as defined in section 802 in Title 21)
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other than a single offense involving possession for one’s own
use of 30 grams or less of marijuana, is deportable.” Although
the Government alleged the controlled substance grounds in the
Notice to Appear, the IJ did not rule on the issue. A court
reviewing an agency decision may not conduct a de novo inquiry
into a matter not considered by an administrative agency and
reach its own conclusions in the matter based on its inquiry.
Gonzales v. Thomas, 126 S. Ct. 1613, 1615 (2006) (citations
omitted). Because the agency has not considered whether the 2002
offense constituted a controlled substance offense, the matter
must be remanded to “bring its expertise to bear upon the
matter,” “evaluate the evidence,” and “make an initial
determination.” INS v. Orlando Ventura, 537 U.S. 12, 17 (2002)
(per curiam) (quoted with approval in Thomas, 126 S. Ct. at
1615).
Accordingly, Jordan’s petition for review is GRANTED and the
order of the BIA is VACATED and REMANDED for further proceedings
consistent with this opinion.
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.