Chery v. Garland Graham v. Garland

Citation: Not availableDocket: 18-1036 18-1835 (L)

Court: Court of Appeals for the Second Circuit; October 15, 2021; Federal Appellate Court

Original Court Document: View Document

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Petitioners Jimmy Chery and Kimanie Tavoy Graham are seeking judicial review of the Board of Immigration Appeals' decisions to affirm their removal orders from the United States and to deny Graham's motion to reopen his case. The primary legal issues are whether their narcotics convictions under Connecticut General Statute 21a-277(a) qualify as controlled substance or aggravated felony drug trafficking offenses under the Immigration and Nationality Act (INA), and whether the jurisdictional ruling in Banegas Gomez v. Barr remains valid after the Supreme Court's decision in Niz-Chavez v. Garland.

Both questions were answered affirmatively, leading to the denial of the petitions. The background reveals that Chery, a Haitian national who entered the U.S. unlawfully in 1998, was ordered removed in absentia after failing to appear at a hearing. In 2014, he pled guilty to narcotics charges and was sentenced to 12 years in prison, later seeking asylum based on claims of persecution in Haiti. An immigration judge determined Chery was removable and denied his asylum application, classifying his conviction as a "particularly serious crime" under the INA, thus categorizing it as an aggravated felony drug trafficking crime.

The Board of Immigration Appeals (BIA) dismissed Chery’s appeal, affirming the Immigration Judge's (IJ) determination that Chery’s conviction under CGS 21a-277(a) constituted a drug trafficking aggravated felony. Chery subsequently filed a petition for review, which was granted regarding whether the conviction qualifies as an aggravated felony under the Immigration and Nationality Act (INA). 

Kimanie Tavoy Graham, a Jamaican citizen who overstayed his visitor visa before adjusting to lawful permanent resident status, was convicted in 2014 of possession of narcotics with intent to sell and possession of a weapon in a motor vehicle. Following this, the Department of Homeland Security (DHS) initiated removal proceedings against him, categorizing his convictions as a controlled substance offense and an aggravated felony drug trafficking offense. Graham contested his removability, sought to adjust his status based on his marriage to a U.S. citizen, and applied for deferral of removal under the Convention Against Torture (CAT), citing fears of gang violence in Jamaica. The IJ found Graham removable due to his aggravated felony conviction, which precluded adjustment of status, and denied his CAT claim. The BIA upheld this decision. 

Graham later moved the BIA to reopen his case, claiming the IJ lacked jurisdiction, but this motion was denied. His petitions for review of the BIA's decisions were consolidated with Chery’s. The key legal questions are whether Graham's 2014 narcotics conviction under CGS 21a-277(a) is a controlled substance offense and an aggravated felony under the INA, and whether prior case law limits Graham's jurisdiction argument regarding his notice to appear. The review applies a "categorical approach" to determine if the state drug conviction aligns with the federal definition of aggravated felony, specifically noting that a controlled substance offense involves substances listed in the Controlled Substances Act. CGS 21a-277(a) penalizes various actions involving the distribution of controlled substances, which includes hallucinogenic and narcotic substances.

Determination focuses on whether the acts and substances defined in CGS 21a-277(a) correspond with the federal statute 21 U.S.C. 841(a)(1), which prohibits the manufacturing, distribution, dispensing, or possession with intent regarding controlled substances. 

1. **Proscribed Acts**: The case United States v. Savage concluded that CGS 21a-277(a) was not a controlled substance offense, as it included non-possessory fraudulent offers to sell. However, the later ruling in State v. Webster clarified that an "offer" entails actual or attempted transfer of a controlled substance. The Board of Immigration Appeals (BIA) and the Government assert that Webster overrides Savage, establishing that CGS 21a-277(a) includes conduct that is a felony under the Controlled Substances Act (CSA). It is determined that the acts prohibited by CGS 21a-277(a) align with those in the federal statute.

2. **Substances Involved**: The analysis involves whether the substances in CGS 21a-277(a) are elements of the offense or merely means of committing it. The Supreme Court's ruling in Mathis distinguishes between elements (which must be proven for a conviction) and means (which do not require jury finding). CGS 21a-277(a) specifies "hallucinogenic substances other than marijuana" and "narcotic substances" as distinct alternatives, indicating that they are separate elements. Consequently, a conviction necessitates proving that one of these substances was involved. The petitioners were charged specifically with narcotic substances, which are recognized under federal law, supporting that their state convictions can render them removable under immigration law. The nature of the petitioners' Alford pleas, which were narrowed to narcotics, does not alter this conclusion, as it confirms their involvement with a narcotic substance offense.

Petitioners’ convictions under CGS 21a-277(a) were classified as controlled substance offenses and aggravated felony drug trafficking crimes, which disqualified Chery from asylum and withholding of removal, while making Graham removable. Graham contended that the Immigration Judge (IJ) lacked jurisdiction, referencing Pereira v. Sessions, arguing that a Notice to Appear (NTA) must include a hearing time and place to activate the 'stop-time rule' for cancellation of removal eligibility. However, the ruling in Banegas Gomez clarified that the Pereira decision applies specifically to the stop-time rule and does not negate jurisdiction when an NTA is missing hearing details, provided that a subsequent notice with this information is sent. Graham received notice of his hearing despite the initial NTA lacking specifics, thus his jurisdictional argument is rejected per Banegas Gomez, which remains valid even after the Supreme Court's Niz-Chavez ruling. Niz-Chavez emphasized that a defective NTA cannot be remedied by later notices, but it did not challenge the established jurisdiction under Banegas Gomez. The conclusion is that the petitions for review are denied, although Graham has another pending petition regarding a pardon from Connecticut affecting his removability, which will be addressed separately. The document also highlights the ambiguity surrounding the term 'aggravated felony' in the Immigration and Nationality Act (INA) and suggests that Congress should clarify this term to prevent future legal uncertainties, proposing that an aggravated felony could be defined as any offense resulting in a prison sentence exceeding one year.

Ambiguities in the definition of 'aggravated felony' under the Immigration and Nationality Act (INA) are compounded by the courts' reliance on the 'categorical approach' for determining eligibility for removal and relief. A straightforward bright-line definition based on a specific sentence length could resolve these ambiguities. The INA currently defines 'aggravated felony' through a complex framework of 21 subsections, leading to inconsistent applications in immigration cases, as courts must compare statutory elements rather than the specifics of individual cases. This complexity has resulted in significant judicial resources being spent on applying the categorical approach, which has been acknowledged as challenging by the Supreme Court and criticized by the Ninth Circuit. The proposed solution is to amend the INA to define 'aggravated felony' simply as a felony resulting in a prison sentence longer than a specified duration (e.g., one year), applicable to offenses under federal, state, or foreign law completed within the last 15 years, and to apply this definition retroactively. This amendment aims to streamline the process and ensure that serious crimes are more reliably linked to immigration consequences.

Congress has defined 'violent felony' and 'serious violent felony' in ways that enhance punishments for firearms and narcotics offenses, respectively, by incorporating sentence length requirements. Specifically, a 'violent felony' requires prior convictions punishable by over one year of imprisonment, while a 'serious violent felony' necessitates that the defendant served more than 12 months. Additionally, the term 'aggravated felony' under the Immigration and Nationality Act (INA) includes a 'crime of violence' with a minimum one-year sentence. However, these definitions are not entirely clear or useful due to two main issues. First, they involve not just sentence length but also specific crimes, necessitating a complex 'categorical approach' to determine qualifying offenses. Second, metrics like maximum sentence and actual time served may not accurately reflect the offense's seriousness. For instance, a 30-day sentence could indicate a minor offense despite being categorized under a more serious statute. While the actual prison term served might better signal the offense's gravity, this information is often not easily accessible in court records. A definition focused solely on the imposed sentence length would simplify the process, eliminate the need for the categorical approach, and better align immigration consequences with the seriousness determined by judges.