By Guest Blogger Linus Chan (Staff Attorney, DePaul University Asylum and Immigration Law Clinic)
In deciding Matter of Cuellar-Gomez, 25 I&N Dec. 850 (BIA July 18, 2012), the BIA answered three important questions of crimmigration law: when is a conviction “criminal”, what is meant by “state law”, and finally, how should immigration courts apply the categorical approach to decide whether someone with two marijuana possession convictions could qualify as a “drug trafficker”?
The year 2008 was not a good one for Cuellar-Gomez. In January, he was charged and found guilty in Wichita Municipal Court for violating a municipal ordinance forbidding the possession of marijuana. In September he was convicted of possessing marijuana again, but this time he was charged under a state statute, KS § 65-4162, and found guilty by a Kansas district court. Based on his prior municipal violation, the Kansas state court used KS 65-4162(b) to sentence the Respondent as a “drug severity level 4” felon.
What effect did the municipal violation and conviction have on his immigration status? Was the violation a “conviction” under immigration law? While Congress defined conviction in INA § 101(a)(48), the BIA in Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), added an important restriction: “conviction” meant criminal conviction and in order for a conviction to be criminal certain constitutional procedural protections had to have been in place.
Wichita proceedings do not provide appointed counsel, or the right to demand a jury in every case. But because not all criminal proceedings require either a jury or appointed counsel, the only relevant factor to the BIA was the standard of proof. Because the Wichita proceedings required “proof beyond a reasonable doubt,” any conviction that resulted from a Wichita Municipal Court proceeding was criminal in nature and met the definition of “conviction” under the INA, the BIA concluded. Cuellar-Gomez, 25 I&N Dec. at 855.
Even if a violation of the Wichita Municipal Code was a conviction, the BIA had to decide if it also was a violation of a “law or regulation” of a “State” as required under INA § 237(a)(2)(B)(i), the controlled substances offense ground of removal. The BIA gave a discourse on federalism and explained that because all municipalities derive their legal authority from the state in which they reside, when Congress wrote “laws or regulation of a State” it meant to encompass the laws of any political subdivision of a State.
Because the City of Wichita could only pass municipal codes based on its authority from the state of Kansas, any violation of the Wichita Municipal Code should be considered a violation of Kansas law for purposes of the INA. The failure of Congress to explicitly include “municipal” or “local” in the definition, despite using such terminology in other parts of the statute failed to convince the BIA that the omissions were deliberate. Cuellar-Gomez, 25 I&N Dec. at 858-59.
After finding removability under INA § 237(a)(2)(B)(i), the BIA next decided whether the Respondent’s state conviction made him a drug trafficker and qualified him as an aggravated felon. Citing to the Supreme Court’s decision in Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010), the BIA framed the question as whether or not Cuellar-Gomez was charged and prosecuted for committing recidivist possession.
The BIA focused on two important facts: that the Respondent’s September 2008 indictment explicitly mentioned his prior municipal violation conviction, and that he was sentenced as a “drug severity level 4” felon which required proving that he has a final prior violation of an ordinance forbidding marijuana possession. Because the Respondent had been indicted and prosecuted for “recidivist” possession, according to the BIA he was a drug trafficker and an aggravated felon. Cuellar-Gomez, 25 I&N Dec. at 861-62.
Those of you who may be unfamiliar with aggravated felony definitions may be wondering how someone who has had more than one possession of controlled substances convictions can qualify as a drug trafficker. The answer lies in INA § 101(a)(43)(B), which defines drug trafficking as any crime punishable as a felony under the Controlled Substances Act.
Because a federal conviction for recidivist possession in certain circumstances can carry a sentence of more than one year it can qualify as a “felony” under the CSA. Prosecution for recidivist possession has two requirements: first certain procedural safeguards have to be met, and second, the prior qualifying conviction must be an offense that was “chargeable under the law of any State.” 21 U.S.C. § 844(a).
The BIA first noted that Kansas provided Cuellar-Gomez with functionally equivalent procedural protections as the federal law, by, for example providing him with notice in the Complaint of the prosecutor’s intent to seek recidivist enhancement. Furthermore, under Kansas statute, KS § 21-4715, a defendant has the right to require the prosecution to prove the validity of a past conviction to a sentencing judge. Cuellar-Gomez, 25 I&N Dec. at 863. Despite describing the Kansas procedures as “not as elaborate” as those required under federal law, they were sufficient as the procedural requirements are not “elements.” Id.
The Board then moved on to the second requirement of 844(a): whether Cuellar-Gomez’s city ordinance conviction was an offense “chargeable under the law of any State.” Cuellar-Gomez, 25 I&N Dec. at 863. Instead of rehashing the federalism argument from the INA § 237(a)(2)(B)(i) section and deciding that municipal violations are state convictions under 21 USC § 844(a), the BIA assumed that municipal violations were not state convictions and instead focused on the term “chargeable.” The Board concluded that the January 2008 municipal violation could have been charged under Kansas law, therefore the subsequent conviction in Kansas state court met the requirements for conviction under 21 USC § 844(a) and consequently a drug trafficking felony by way of recidivist possession. Cuellar-Gomez, 25 I&N Dec. at 864-65.
This final leap is extraordinary for two reasons. First, the BIA never compared the language of the Kansas statute, KS 65-4162(b), with the language of 21 USC § 844(a) as the categorical approach would require. Instead, it compared “elements” without reference to the specific statutory language.
Second, the BIA focused on whether the Respondent could have been found guilty under 21 USC § 844(a) as a recidivist possessor if he was in federal court. The Board’s justification for a hypothetical approach was the word “chargeable”—a word that only exists in § 844(a), the statute that the Respondent was never convicted under! The BIA concluded that because it was only relying on facts “proven beyond a reasonable doubt” under the state proceedings, the hypothetical approach was justified. Cuellar-Gomez, 25 I&N Dec. at 865.
When looking at aggravated felonies, the inquiry normally starts with the categorical approach which mandates a comparison of the state statute and the federal definition. The statutory language is the starting point because the inquiry should not be whether the Respondent could have been convicted under the federal definition, but rather whether the state court conviction met the requirements mandated by the federal definition in the INA.
Kansas recidivist possession requires that the prior conviction be: “a conviction for a substantially similar offense from another jurisdiction or a conviction of a violation of an ordinance of any city … for a substantially similar offense.” KS § 65-4162(b). Kansas explicitly listed out municipal violations, while 21 USC § 844(a) does not. While it is possible that § 844(a)’s “law of any state” phrase encompasses ordinance violations, the BIA assumed the opposite, and a quick survey of case law finds no precedent on point.
Assuming that 21 USC § 844(a) cannot be used to prosecute someone in federal court for recidivist possession when the prior conviction was a stand-alone ordinance violation, then it doesn’t matter if the facts supporting Cuellar-Gomez’s conviction in Kansas could have led a federal prosecutor in federal court to successfully argue that the ordinance violation was also “chargeable under state law”.
The language of KS 65-4162(b) is what Cuellar-Gomez was convicted of possession of marijuana after having been convicted of a violation of an ordinance of any city for possession of marijuana. The elements of the conviction are spelled out: (1) marijuana, (2) possession, and (3) prior violation of city ordinance forbidding possession of marijuana. The federal requirements as defined by 21 USC § 844(a): (1) marijuana, (2) possession, and (3) prior conviction that was “chargeable under state law.”
If we assume that “state law” is not by definitionmet by an ordinance violation, as the BIA did, then a conviction under Kansas law is not a conviction for recidivist possession as the third element is different in each statute. It doesn’t matter that Cuellar-Gomez’s ordinance violation happens to be “chargeable” under state law, and therefore a federal prosecutor could have met the third element of 21 § USC 844(a).
The Kansas state prosecutor in his actual prosecution did not have to prove that the ordinance violation was “chargeable” under state law; he just had to prove it was a violation of a city ordinance. If § 844(a) would not allow for prosecution for an ordinance violation standing on its own—as the BIA assumes—then the Respondent was not convicted of recidivist possession as defined by the INA statute and should not have been removed as an aggravated felon and drug trafficker.
Linus Chan is a Staff Attorney at DePaul University’s Asylum and Immigration Law Clinic as part of the Legal Assistance Program, a program designed to help community-based immigration services organizations. He also currently teaches two clinical courses on immigration, including a detention clinic representing individuals facing removal while detained by the U.S. Immigration and Customs Enforcement (ICE) agency, and Criminal Procedure. Attorney Chan has been an active member of the American Immigration Lawyers Association (AILA) and has spoken at a variety of functions and conferences since 2004. He has been practicing immigration law full time since 2004. Prior to joining DePaul, Linus worked at the National Immigrant Justice Center as the Senior Staff Attorney at NIJC’s Detention Project where he represented individuals held in custody by ICE. He has provided trainings to various county public defenders on the immigration consequences of criminal violations.
 The BIA did not include any of the language from any of the statutes or ordinance used in its opinion. The current Wichita ordinance is provided here 5.26.010: “Except as authorized by the Uniform Controlled Substances Act…, it shall be unlawful for any person to possess or have under such person’s control any hallucinogenic drug … Such drugs include, but are not limited to cannabis sativa L.,otherwise known as marihuana…”
 “(b) Except as otherwise provided, any person who violates this subsection shall be guilty of a class A nonperson misdemeanor. If any person has a prior conviction under this section, a conviction for a substantially similar offense from another jurisdiction or a conviction of a violation of an ordinance of any city or resolution of any county for a substantially similar….” KS 65-4162(b)(since repealed).
An observant reader may wonder why the BIA bothered to examine the effect of the municipal violation when the Respondent had been convicted in state court under a state statute in September of 2008. In a footnote, the BIA explains that because the September state conviction lacked any information on the amount of marijuana involved, there was the possibility that the amount involved may have been under 30 grams which invoke the exception under INA 237(a)(2)(B)(i) and render the conviction no longer a removable offense. The BIA and the IJ could sidestep the exception if they found the Municipal violation triggered removability because the exception only covers a “single violation”.
 The BIA in Matter of Eslamizar, 23 I&N Dec 684 (BIA 2004) had left the possibility open that a foreign conviction that did not require proof beyond a reasonable doubt might satisfy the INA definition.
The BIA did reserve for another time the possibility of city passing a law that did not have a companion or parallel version under state law and whether a conviction of such an ordinance would also qualify as a violation of a “law of the State”.
 The Supreme Court wondered the same thing in Lopez v. Gonzales, 549 U.S. 47, 55 n.6 (2006), but acknowledged that Congress could define words any way it likes, even if it no longer fits the definition Congress provides.