Court: Court of Appeals for the Second Circuit; July 20, 2018; Federal Appellate Court
Antoine Hylton, a Jamaican national, petitions for review of the BIA's May 9, 2017 order, which deemed him ineligible for cancellation of removal due to a prior state conviction for sale of marijuana classified as an aggravated felony under the INA. The central issue on appeal is whether Hylton's conviction under NYPL 221.45 is punishable as a federal felony under the Controlled Substances Act (CSA). A conviction for marijuana distribution is considered a federal misdemeanor if it does not involve remuneration or exceeds a small amount of marijuana. The court establishes that one ounce (approximately 30 grams) qualifies as a 'small amount' under 21 U.S.C. 841(b)(4), aligning with other circuit rulings and BIA commentary. Since NYPL 221.45 allows for distribution of less than an ounce without remuneration, it is classified as a federal misdemeanor. The BIA erred in concluding there was no realistic probability that New York would apply the statute beyond generic federal felonies, as the state statute explicitly encompasses misdemeanor conduct. Consequently, Hylton's conviction does not categorically constitute an aggravated felony. While Hylton is removable, he is eligible for equitable relief at the IJ's discretion. The IJ determined Hylton was not an aggravated felon and granted cancellation of removal, a decision the BIA did not address due to its initial ineligibility ruling. The court grants Hylton's petition, vacates the BIA's opinion, and remands for the BIA to reconsider the IJ's grant of cancellation of removal. Hylton has been a lawful permanent resident since 1989 and has significant family ties in the U.S.
Hylton was granted cancellation of removal by the Immigration Judge (IJ) due to his long-term residency and strong family connections, as the positives outweighed the negatives. The Government appealed this decision to the Board of Immigration Appeals (BIA), which reviewed the IJ's classification of Hylton's conviction as a misdemeanor and determined it was an aggravated felony, as it did not meet the misdemeanor exception under 21 U.S.C. 841(b)(4). The BIA asserted that there was no realistic probability that New York would apply NYPL 221.45 to conduct outside the definition of a felony under the Controlled Substances Act (CSA). Consequently, the BIA ordered Hylton's removal without addressing the IJ's cancellation decision. Hylton timely petitioned for judicial review, which is limited to constitutional claims or legal questions under 8 U.S.C. 1252(a)(2)(D). The court reviews whether a conviction qualifies as an aggravated felony de novo, typically using the categorical approach to compare state offenses to those listed in the Immigration and Nationality Act (INA). This approach focuses on the statutory definitions of crimes rather than the underlying facts, determining the minimum conduct necessary for a conviction. In this case, the aggravated felony pertains to illicit drug trafficking. The inquiry centers on whether Hylton's conviction aligns with conduct punishable as a felony under the CSA, with actual conduct being irrelevant to the determination. Marijuana distribution can be classified as either a felony or a misdemeanor under the CSA depending on the specifics of the offense.
Violating the Controlled Substances Act (CSA) by distributing a small amount of marijuana without remuneration is classified as a misdemeanor under 21 U.S.C. 841(b)(4). A noncitizen's conviction for such an offense is not considered an aggravated felony under the Immigration and Nationality Act (INA) if it does not involve remuneration or exceed a small amount of marijuana. While the CSA does not define "small amount," various circuit courts have established that 30 grams is deemed a small amount, with some cases suggesting slightly above 30 grams still qualifies. The Board of Immigration Appeals (BIA) has indicated that 30 grams serves as a useful benchmark for defining a small amount, referencing provisions in both the CSA and INA that relate to marijuana possession and distribution. Furthermore, the reasoning behind this benchmark aligns with Congress's intent to differentiate between personal use and large-scale dealing in marijuana. The court concludes that an amount of an ounce (approximately 30 grams) or less is considered a "small amount" under the CSA. In examining the specific elements of New York's criminal statute regarding marijuana sales, the relevant offense—sale in the third degree—applies to sales involving more than 25 grams of marijuana.
Under New York law, 'sale' encompasses any transfer of a controlled substance, irrespective of whether it involves money, as defined in NYPL 220.00(1). The minimum offense under NYPL 221.45 involves the non-remunerative transfer of over 25 grams of marijuana. Case law, including Martinez and Ming Wei Chen, establishes that even a non-remunerative transfer of small amounts of marijuana can be punishable under state law without constituting a federal felony. Specifically, NYPL 221.45 addresses the distribution of small quantities of marijuana and does not require remuneration for a conviction. Consequently, convictions for such conduct do not qualify as aggravated felonies under federal law (21 U.S.C. 841(b)(4)), as established in Moncrieffe’s case, which demonstrated that ambiguity regarding the nature of the offense prevents it from being classified as a felony under the Controlled Substances Act (CSA).
The BIA's application of a 'realistic probability' test rather than an elements-based categorical inquiry was deemed erroneous. The language of NYPL 221.45 clearly extends to conduct that does not align with federal felony definitions. The categorical approach dictates that the scope of the state statute must be examined directly, rather than relying on hypothetical scenarios. The requirement for a defendant to demonstrate a 'realistic probability' pertains primarily to ambiguous statutes; however, when the statute’s language itself suggests applicability beyond the federal generic definition, this requirement does not apply. Thus, the statutory language indicates that the state law could encompass conduct not classified as a generic felony.
The elements of the crime of conviction differ from those of the generic federal offense, and the Supreme Court has not performed a 'realistic probability' inquiry in this context. When a state statute, such as NYPL 221.45, is broader than its federal counterpart, a petitioner is not required to cite specific cases applying the statute non-generically. The court rejects the government's argument that a more stringent analysis is needed, asserting that the explicit text of the statute provides sufficient clarity regarding its application. Previous Supreme Court rulings establish that a realistic probability inquiry is unnecessary when the statute's elements are clear and its application is not disputed by the government. The court acknowledges that in some cases, such as determining 'crimes of moral turpitude' or 'crimes of violence' under the Armed Career Criminal Act, additional inquiries may be required, but this situation does not warrant such an approach. The government’s reliance on previous BIA rulings to argue for a more detailed inquiry is seen as misaligned with established precedent. The court emphasizes that the categorical approach does not necessitate historical case examples to interpret the statute's scope, highlighting that the government's insistence on this point misinterprets the Supreme Court's guidance.
Recent Supreme Court rulings have clarified that when applying the categorical approach, a state statute can be broader than its federal counterpart. The Government's interpretation of the federal removal statute is challenged, particularly its reach into state-court convictions that do not involve federally defined controlled substances as elements of the offense. The court emphasized that in cases where a state law is facially overbroad, there is no need for further analysis. Other circuits largely disagree with the approach advocated by the Board of Immigration Appeals (BIA) and the Government, viewing it as inconsistent with formal categorical analysis and burdensome to noncitizen petitioners.
The Government's argument that the burden rested on the petitioner, Martinez, to prove that his state conviction would not be classified as an aggravated felony under federal law was rejected. The court concluded that the New York Penal Law (NYPL) 221.45 is not an aggravated felony per federal immigration law, though it remains a deportable offense. This ruling allows for the possibility of equitable relief for noncitizens, aligning with congressional intent to separate removability from cancellation of removal, thereby granting immigration judges discretion.
The court noted that the BIA incorrectly determined Hylton's conviction as an aggravated felony, which curtailed the review of the discretionary relief granted by the immigration judge (IJ). Consequently, the case is remanded to the BIA for a proper evaluation of the IJ's exercise of discretion in granting cancellation of removal. Additionally, it was noted that penal statutes must clearly articulate their prohibitions to comply with due process requirements, referencing a prior ruling on vagueness. The petition is granted, the BIA's opinion is vacated, and the case is remanded for further consideration.
The BIA's reliance on dicta from Catwell v. Attorney General of the U.S. to define a 'small amount of marijuana' as 'no more than one or two marijuana cigarettes' is criticized as unpersuasive. The BIA fails to reconcile this with its own prior statement that 30 grams serves as a 'useful guidepost.' Additionally, the Catwell court determined that 120.5 grams does not constitute a 'small amount,' which is significantly more than the quantity in question, affecting the applicable charges under New York law. The Seventh Circuit also found Catwell unhelpful, noting that 30 grams aligns more closely with congressional intent in 21 U.S.C. § 841(b)(4). Furthermore, the Third Circuit has previously classified 30 grams as a 'small amount,' making it questionable for the BIA to conclude that 25 grams would not be considered similarly.
Criminal sale in the second degree under New York Penal Law (NYPL) § 221.50 prohibits the sale of more than four ounces (approximately 113.4 grams) of marijuana. Meanwhile, NYPL § 221.45 addresses the transfer of marijuana weighing between 25 and 113.4 grams. Various circuit court rulings are cited to support the interpretation of these statutes, including opinions from the First, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits. The excerpt critiques the Board of Immigration Appeals (BIA) for relying on the precedent set in Catwell v. Attorney General, which limited "small amounts of marijuana" to one or two cigarettes, arguing that this interpretation contradicts the BIA's own acknowledgment of 30 grams as a reasonable benchmark. The BIA's reference to Catwell is deemed unconvincing since prior rulings indicate that 30 grams qualifies as a "small amount" and since the weight in question (25 grams) is significantly lower than the 120.5 grams found not to be a small amount in Catwell. The excerpt concludes by stating a remand for the BIA to reassess whether the Immigration Judge properly exercised discretion in granting cancellation of removal and emphasizes the need for penal statutes to be clearly articulated to ensure understanding and enforcement.
