IJ: Possession of drug paraphernalia conviction can't be used for drug-related aggravated felony category

An Immigration Judge recently held that our client's conviction for possession of drug paraphernalia could not be used to prove that he was convicted of an aggravated felony. The IJ first concluded that possession of paraphernalia is not punishable under the federal Controlled Substances Act (CSA), then concluded that the paraphernalia conviction could not serve as the basis of a recidivist offender violation.Our client was convicted of violating two Maryland offenses: criminal possession of a controlled dangerous substance, Md. Code Ann., Crim. § 5-601, and possession of drug paraphernalia, Md. Code Ann., Crim. § 5-619(c)(1).

DHS argued that, combined, these convictions constitue an aggravated felony under INA § 101(a)(43)(b). That section provides that “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)” is an aggravated felony.

Because removal proceedings took place in Texas, the Fifth Circuit's holding that multiple possession convictions constitute an aggravated felony was controlling. In United States v. Sanchez-Villalobos, the Fifth Circuit held that a second state drug possession conviction constitutes an aggravated felony as a recidivist offense even where the second conviction was not prosecuted under a recidivist offender statute. See 412 F.3d 572, 577 (5th Cir. 2005). The Fifth Circuit's position stands in stark contrast to the position taken by the BIA in Matter of Carachuri-Rosendo, but, as the BIA noted in that case, the Fifth Circuit's decision is the controlling precedent. See 24 I & N Dec. 382, 393 (BIA 2007). Though the Supreme Court, in Lopez v. Gonzales, 127 S.Ct. 625 (2006), expressly disagreed with one part of the Fifth Circuit's holding in Sanchez-Villalobos, another part survives.

What remains of Sanchez-Villalobos post-Lopez v. Gonzales is its two-pronged analysis of potential drug trafficking crimes. According to Sanchez-Villalobos, first the IJ must determine whether the offense is punishable under the federal CSA and, second, whether that offense is a felony under federal law. See 412 F.3d at 574. Indeed, Lopez v. Gonzales held that convictions in state courts for drug-related offenses may constitute an aggravated felony if the state offense proscribed conduct punishable under the federal CSA or if the state offense fell within the “everyday understanding” of illicit trafficking. 127 S.Ct. at 630, 631.

We successfully argued that possession of drug paraphernalia is not an offense punishable under the federal CSA. The federal CSA does not even reference mere possession of drug paraphernalia anywhere within its many provisions. Indeed, the one reference to drug paraphernalia is an explicit prohibition of the “sell or offer for sale [of] drug paraphernalia,” the “use [of] the mails or any other facility of interestate commerce to transport drug paraphernalia,” and the “import[ing] or export[ing of] drug paraphernalia.” 21 U.S.C. § 863(a). This sale, transport, importation, or exportation, we argued, is not synonymous with mere possession.We also successfully argued that the Maryland possession of drug paraphernalia statute does not involve an element of commerce. The Lopez v. Gonzales Court explained that “ordinarily 'trafficking' means some sort of commercial dealing.” 127 S.Ct. at 630. However, the Maryland statute does not require a commercial transaction of any kind.

As a result of winning the aggravated felony battle our client became eligible for Cancellation of Removal for LPRs and was granted that relief. Hopefully some variation of this argument can work for other attorneys.


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