Cite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
850
Matter of Roberto CUELLAR-Gomez, Respondent
Decided July 18, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A formal judgment of guilt of an alien entered by a municipal court is a “conviction”
under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(48)(A) (2006), if the proceedings in which the judgment was entered were
genuine criminal proceedings. Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA 2008),
and Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), followed.
(2) A Wichita, Kansas, municipal ordinance which recapitulates a Kansas statute
prohibiting marijuana possession is a “law or regulation of a State . . . relating
to a controlled substance” under section 237(a)(2)(B)(i) of the Act, 8 U.S.C.
§ 1227(a)(2)(B)(i) (2006).
(3) Possession of marijuana after a prior municipal ordinance conviction for marijuana
possession in violation of former sections 65-4162(a) and (b) of the Kansas Statutes
Annotated is an aggravated felony under section 101(a)(43)(B) of the Act by virtue of its
correspondence to the Federal felony of “recidivist possession,” 21 U.S.C. § 844 (2006),
provided the prior conviction was final when the second offense was committed. Lopez
v. Gonzales, 549 U.S. 47 (2006), followed; Carachuri-Rosendo v. Holder, 130 S. Ct.
2577 (2010), and Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007),
distinguished.
FOR RESPONDENT: Rosana Kit Wai Cheung, Esquire, and Jennifer L. Cohen, Esquire,
Los Angeles, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Charles Fillinger and Justin
Howard, Assistant Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.
PAULEY, Board Member:
In a decision dated July 18, 2011, an Immigration Judge ordered
the respondent removed from the United States as an alien convicted
of an aggravated felony and a controlled substance violation under
sections 237(a)(2)(A)(iii) and (B)(i) of the Immigration and Nationality Act,
8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i) (2006), respectively. Both chargesCite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
1
Section 65-4162(a) was subsequently repealed and replaced, along with many other
Kansas statutes. In this opinion, all pertinent citations are to the version of the Kansas
Statutes Annotated that was in effect when the respondent committed his offenses.
851
of removability were based in part on a judgment entered by a Wichita,
Kansas, municipal court, finding the respondent guilty of violating a city
ordinance prohibiting marijuana possession. The respondent has appealed,
arguing that the Wichita judgment is not a valid predicate for either removal
charge. The Department of Homeland Security (“DHS”) opposes the appeal.
The respondent’s appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of El Salvador, who was admitted
to the United States on April 4, 1992, as a lawful permanent resident.
On January 3, 2008, a municipal court in Wichita, Kansas, found the
respondent guilty of possessing marijuana in violation of section 5.26.010
of the Wichita, Kansas, Code of Ordinances, a misdemeanor for which he was
sentenced to 60 days in jail and ordered to pay a $100 fine. On September 29,
2008, a Kansas district court found the respondent guilty of possessing
marijuana after a prior municipal ordinance conviction for marijuana
possession, a felony violation under sections 65-4162(a) and (b) of the Kansas
Statutes Annotated, for which he was sentenced to a 10-month term
of imprisonment plus probation on December 4, 2008.1
Based on these convictions, the DHS initiated removal proceedings
by filing a notice to appear charging the respondent with deportability
under section 237(a)(2)(A)(iii) of the Act, as an alien convicted
of an “aggravated felony,” and section 237(a)(2)(B)(i), as an alien convicted
of a “violation of . . . any law or regulation of a State . . . relating
to a controlled substance . . . , other than a single offense involving possession
for one’s own use of thirty grams or less of marijuana.”
Specifically, the DHS alleged that the respondent’s conviction under
sections 65-4162(a) and (b) of the Kansas Statutes Annotated was for a “drug
trafficking crime” under 18 U.S.C. § 924(c) (2006)—and, by extension,
an aggravated felony under section 101(a)(43)(B) of the Act, 8 U.S.C.
§ 1101(a)(43)(B) (2006)—because it corresponds to “recidivist possession,”
a felony punishable under the Federal Controlled Substances Act (“CSA”)
at 21 U.S.C. § 844(a) (2006). The DHS also maintained that each of the
respondent’s convictions was for a violation of the law of a State relating
to a controlled substance under section 237(a)(2)(B)(i) and that the existence
of two such convictions precluded the respondent from qualifying for theCite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
852
exception to deportability available to aliens convicted of a “single offense”
involving simple possession of 30 grams or less of marijuana. The
Immigration Judge sustained both charges of removal.
On appeal the respondent contends that the January 2008 judgment arising
from his Wichita municipal court proceedings is not a valid predicate for either
charge of removability and that his September 2008 conviction under sections
65-4162(a) and (b) of the Kansas Statutes Annotated is insufficient, standing
alone, to establish his removability. The respondent challenges the DHS’s
reliance on his Wichita judgment by means of several distinct arguments.
First, he asserts that the Wichita judgment is not a “conviction” within the
meaning of section 101(a)(48)(A) of the Act. Alternatively, he maintains that
even if the Wichita judgment is a “conviction” for immigration purposes,
it does not support the section 237(a)(2)(B)(i) charge because it was for
violation of a municipal ordinance rather than “any law or regulation
of a State.” Finally, the respondent contends that his Wichita judgment does
not support the aggravated felony charge because it is not a valid predicate for
a recidivist enhancement under 21 U.S.C. § 844(a). Both parties have filed
briefs, and on March 7, 2012, a three-member panel of the Board heard oral
argument.
II. ANALYSIS
A. Wichita Judgment as a “Conviction” Under
Section 101(a)(48)(A) of the Act
At the outset, we conclude that the judgment of guilt entered against the
respondent in January 2008 by the Wichita municipal court is a “conviction”
under the plain language of section 101(a)(48)(A) of the Act because
it is “a formal judgment of guilt of the alien entered by a court.”
The respondent does not dispute either that the Wichita municipal court
entered a formal judgment of guilt against him or that it is a “court” within the
meaning of the Act. Instead, he maintains that the Wichita court’s judgment
should be discounted for immigration purposes because the proceedings
in which it was entered did not afford him all of the constitutional rights that
defendants are entitled to in genuine criminal proceedings. We disagree.
Under our precedents, a formal judgment of guilt entered by a court
qualifies as a conviction under section 101(a)(48)(A) so long as it was entered
in a “genuine criminal proceeding,” that is, a proceeding that was “criminal
in nature under the governing laws of the prosecuting jurisdiction.”
Matter of Rivera-Valencia, 24 I&N Dec. 484, 486-87 (BIA 2008) (quotingCite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
2
In Matter of Eslamizar, 23 I&N Dec. at 687-88, we held that a judgment of guilt entered
in an Oregon “violation” proceeding was not a “conviction” for immigration purposes
because the prosecution in such a proceeding was required to prove the guilt of the accused
by a mere preponderance of the evidence.
853
Matter of Eslamizar, 23 I&N Dec. 684, 688 (BIA 2004)) (internal quotation
marks omitted). The respondent’s proceedings in Wichita municipal court fit
that description.
In Kansas, municipal court judges have authority to enter judgments
of guilt in marijuana possession cases and to impose fines or order the
incarceration of defendants against whom judgments of guilt are entered. See
Kan. Stat. Ann. §§ 12-4104(a)(5), 12-4106 (West 2008). In municipal court
criminal cases, moreover, “[t]he issue before the court upon trial is whether the
prosecution has sustained its burden to prove the charge beyond a reasonable
doubt.” City of Overland Park v. Povirk, 941 P.2d 369, 371 (Kan. 1997).2
Furthermore, under Kansas’ sentencing laws a judgment of guilt entered
by a municipal court is considered a valid conviction for purposes
of calculating the defendant’s criminal history. See Kan. Stat. Ann. § 21-4710,
21-4711 (West 2008); see also State v. Vega-Fuentes, 955 P.2d 1235 (Kan.
1998). Under the circumstances, it is evident that the respondent’s Wichita
judgment was entered in a “genuine criminal proceeding” under the laws of the
State of Kansas.
The respondent argues that the Wichita proceedings were not genuine
criminal proceedings because they did not afford him an “absolute right
to be represented by counsel,” as required by the Sixth and Fourteenth
Amendments to the United States Constitution. As the respondent explains,
the Wichita Municipal Code provides for the appointment of counsel at public
expense only if the judge determines that the defendant stands in jeopardy
of incarceration and is financially unable to retain his own lawyer. See
Wichita, Kan., Code of Ordinances §§ 1.04.065, 1.04.210 (2012); see also
Kan. Stat. Ann. § 12-4405 (West 2008) (“If the municipal judge has reason
to believe that if found guilty, the accused person might be deprived of his
or her liberty and is not financially able to employ counsel, the judge shall
appoint an attorney to represent the accused person.”) In the respondent’s
view, these limitations on the right to counsel are more restrictive than those
that applyin criminal cases before the Kansas district courts. The respondent’s
argument is based on a misconception.
Despite the respondent’s assertion to the contrary, there is no “absolute”
right to appointed counsel in misdemeanor prosecutions, whether in the Kansas
district courts, the Wichita municipal courts, or elsewhere. State v. Allen,
20 P.3d 747 (Kan. 2001). The constitutional right to appointed counsel applies
only to defendants who are unable to retain counsel of their own; with a fewCite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
854
exceptions not applicable here, defendants who can afford to hire their own
lawyers are not entitled to representation at public expense. United States
v. Kahan, 415 U.S. 239, 243 (1974); State v. Zimmer, 426 P.2d 267, 272 (Kan.
1967). Moreover, even indigent defendants have a constitutional right
to appointed counsel only if they face the prospect of imprisonment in the
event of conviction. See Alabama v. Shelton, 535 U.S. 654 (2002); Scott
v. Illinois, 440 U.S. 367 (1979). Accordingly, the Wichita municipal courts’
practice of providing counsel only to indigent defendants who face possible
incarceration is consistent with the Constitution and is also consistent with
general criminal practice in the Kansas district courts. State v. Youngblood,
206 P.3d 518 (Kan. 2009) (following Alabama v. Shelton, 535 U.S. 654, and
holding that indigent defendants charged with misdemeanors in district court
have a right to appointed counsel only if conviction places them in jeopardy
of imprisonment); see also State v. Long, 203 P.3d 45, 48-49 (Kan. Ct. App.
2009).
The respondent also contends that his municipal court proceedings were
not genuinely “criminal” because they did not afford him the right to a jury
trial. Again, we disagree. Kansas, like numerous other States, has a two-tier
system for the trial of municipal ordinance violations. In Kansas, such
violations are first tried to a municipal court judge, sitting without a jury. Kan.
Stat. Ann. § 12-4502 (West 2008). If the municipal court finds the defendant
guilty, the defendant then has a constitutional and statutory right to appeal
to a State district court for a trial de novo before a jury. Kan. Stat. Ann.
§ 22-3609(4) (West 2008);see also City of Wichita v. Bannon, 154 P.3d 1170,
1173 (Kan. Ct. App. 2007) (holding that a defendant being tried for
a municipal ordinance violation that is punishable by a term of imprisonment
of more than 6 months has a constitutional and statutory right to a trial
by jury). The Supreme Court has held that a two-tier system virtually identical
to that applied in Kansas did not violate the accused’s constitutional right
to a jury trial. See Ludwig v. Massachusetts, 427 U.S. 618, 625-28 (1976).
The United States Court of Appeals for the Tenth Circuit has also specifically
upheld the Kansas two-tier procedure in the face of a constitutional challenge.
M.S. News Co. v. Casado, 721 F.2d 1281, 1294 (10th Cir. 1983). Since the
respondent had a right to a trial de novo in State district court, his bench trial
in Wichita municipal court qualified as a genuine criminal proceeding.
Finally, the respondent argues that his Wichita conviction was
unconstitutional because he was not provided with counsel or advised by the
municipal court that the conviction might result in serious immigration
consequences. See Padilla v. Kentucky, 130 S. Ct. 1473 (2010). However,
it is well settled that the Immigration Judges and this Board cannot entertainCite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
3
In so concluding, we do not purport to address municipal or local judgments other than the
particular Wichita judgment before us. Because such judgments vary widely across
jurisdictions, each must be examined on its own merits to determine whether it was entered
in a “genuine criminal proceeding.”
4 As noted previously, the respondent also sustained a September 2008 conviction for
marijuana possession under sections 65-4162(a) and (b) of the Kansas Statutes Annotated.
There is no dispute that this conviction was for “a violation of . . . any law . . . of a State . . .
relating to a controlled substance,” but as the respondent correctly points out, the record
does not reflect the quantity of marijuana he was convicted of possessing. Thus, unless the
respondent’s Wichita conviction is also a valid predicate for a section 237(a)(2)(B)(i)
charge, we cannot discount the possibility, although we do not decide the issue, that he falls
within the exception to deportability applicable to aliens convicted of “a single offense
involving possession for one’s own use of thirty grams or less of marijuana.” (Emphasis
added.)
855
collateral attacks upon State court judgments. E.g., Waugh v. Holder, 642 F.3d
1279, 1282-83 (10th Cir. 2011); Margalli-Olvera v. INS, 43 F.3d 345, 355 (8th
Cir. 1994); Matter of Madrigal, 21 I&N Dec. 323, 327 (BIA 1996). If the
respondent believes his Wichita conviction is unconstitutional, then his remedy
is to seek postconviction relief in the Kansas courts. The conviction remains
effective for immigration purposes, however, unless and until it is vacated
by a court of competent jurisdiction. See Matter of Madrigal, 21 I&N Dec.
at 327.
In sum, we conclude that the Wichita municipal court proceedings
at issue here were “genuine criminal proceedings” within the meaning of our
precedents. The judgment of guilt resulting from those proceedings
is therefore a “conviction” under section 101(a)(48)(A) of the Act.3
B. Removability Under Section 237(a)(2)(B)(i) of the Act
Having determined that the respondent’s Wichita judgment
is a “conviction” for immigration purposes, we must now decide whether
it is a valid predicate for the removal charges. We begin with the charge under
section 237(a)(2)(B)(i) of the Act, which provides in relevant part that an alien
is removable if he is “convicted of a violation of . . . any law or regulation
of a State . . . relating to a controlled substance.” According to the respondent,
his Wichita conviction cannot support such a charge because it was for
violating a municipal ordinance rather than a “law or regulation of a State.”4
We disagree.
Wichita is a political subdivision of the State of Kansas, formed by charter
from the State and delegated the autonomous authority to administer
the State’s local affairs. See Kan. Const. art. 2, § 21 (“The legislature
may confer powers of local legislation and administration upon politicalCite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
5 Likewise, the Supremacy Clause of the Constitution, which makes Federal law the
supreme law of the land as against “the Constitution or Laws of any State,” applies with
equal force to laws enacted by political subdivisions of the States. U.S. Const. art. VI, cl.2
(emphasis added); see also, e.g., Wisconsin Public Intervenor v. Mortier, 501 U.S. at 605;
Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985).
6 The Act does not define the term “State,” except to specify that the term “includes” the
District of Columbia, Puerto Rico, Guam, the Virgin Islands, and the Commonwealth of the
Northern Mariana Islands. Section 101(a)(36) of the Act. Congress does not intend that list
to be exhaustive or exclusive, however, since it uses the term “includes” rather than “means”
and does not list any of the 50 States themselves. Indeed, in Wisconsin Public Intervenor
v. Mortier, 501 U.S. at 606, the Court concluded that the term “State” included political
(continued…)
856
subdivisions.”). Like other municipalities, Wichita is not an independent
sovereign, but rather a “subordinate governmental instrumentalit[y] created
by the State to assist in the carrying out of state governmental functions.”
Reynolds v. Sims, 377 U.S. 533, 575 (1964);see also City of Columbus v. Ours
Garage & Wrecker Service, Inc., 536 U.S. 424, 437 (2002) (recognizing that
“local governmental units are created as convenient agencies for exercising
such of the governmental powers of the State as may be entrusted to them in its
absolute discretion” (quoting Wisconsin Public Intervenor v. Mortier, 501 U.S.
597, 607-08 (1991)) (internal quotation mark omitted)); State ex rel.
Kline v. Unified Bd. of Comm’rs of Unified Government of Wyandotte
County/Kansas City, 85 P.3d 1237, 1247 (Kan. 2004) (“Under our form
of state government, the State is sovereign and cities have no inherent power
except as granted by the State.”). The status of municipalities as subordinate
instrumentalities of State power is clearly reflected in several lines
of constitutional jurisprudence. For instance, double jeopardyprinciples forbid
a State prosecutor from bringing criminal charges against a defendant who has
already been tried for the same conduct in a municipal court. See Waller
v. Florida, 397 U.S. 387, 393-95 (1970).5
We conclude that the ambiguous reference in section 237(a)(2)(B)(i)
to “any law or regulation of a State” most naturally encompasses laws
promulgated bya State through its political subdivisions. Cf. Wisconsin Public
Intervenor v. Mortier, 501 U.S. at 608 (holding that a Federal statute that
exempted the “States” from Federal preemption in the regulation of pesticides
implicitly exempted political subdivisions of the States as well, noting that
“[t]he exclusion of political subdivisions cannot be inferred from the express
authorization to the ‘State[s]’ because political subdivisions are components
of the very entity the statute empowers”). Section 5.26.010 of the Wichita
Code of Ordinances is thus “a law or regulation of a State” under section
237(a)(2)(B)(i) of the Act because it is an expression of the organic sovereign
power of the State of Kansas.6Cite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
(…continued)
subdivisions, even though the statute under review contained a statutory definition
of “State” very similar to that in section 101(a)(36).
857
Invoking the “Home Rule” Amendment to the Kansas Constitution, see
Kan. Const. art. 12, § 5, the respondent maintains that Wichita ordinances are
independent from Kansas law and that the ordinance in question is no more
a law of the State of Kansas than a Kansas statute is a law of the United States.
We find that argument unpersuasive.
It is true that the “Home Rule” Amendment empowers Kansas
municipalities to enact ordinances that supplement or complement the criminal
laws passed by the State legislature. E.g., City of Wichita v. Hackett, 69 P.3d
621 (Kan. 2003) (upholding a Wichita ordinance criminalizing the operation
of a bicycle while intoxicated, despite the absence of any State statute
prohibiting such conduct, because the ordinance supplemented but did not
conflict with State law). Crucially, however, municipalities cannot pass
ordinances that are preempted by uniformly applicable State criminal laws.
See Kan. Const. art. 12, § 5(b); cf. also City of Junction City v. Cadoret, 946
P.2d 1356 (Kan. 1997) (holding that a city ordinance may not make a third
or subsequent driving under the influence crime a misdemeanor when State
law makes it a felony). The respondent does not suggest, for instance, that the
Home Rule Amendment would allow Wichita to pass an ordinance legalizing
marijuana possession despite the existence of a State statute criminalizing such
conduct.
In our view, a municipal ordinance that supplements or complements the
laws passed by the State Legislature is still a “law . . . of a State” because
it is ultimately an expression of State sovereignty. In any event, the Wichita
ordinance at issue merely recapitulates the generally applicable Kansas law
relating to marijuana possession, so we have no need to decide whether
an alien could be rendered deportable under section 237(a)(2)(B)(i) on the
basis of a municipal conviction for an offense with no analog in the State
criminal code.
We also do not accept the respondent’s argument that Wichita ordinances
stand in the same relationship to Kansas law as Kansas statutes do to Federal
law. Although the Home Rule Amendment gives municipalities substantial
autonomy in regulating their own affairs, Wichita nevertheless remains
a creature of Kansas law; it exists at the pleasure of the State of Kansas and
exercises its authority through a delegation of State sovereignty.
By contrast, under our Federal system, Kansas stands on an equal footing
with the National Government and is sovereign with respect to all matters not
explicitly reserved to the National Government by the Constitution. U.S.
Const. amend. X. Kansas is not a mere creature of Federal law, nor doesCite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
858
it derive its authority from a delegation of sovereign Federal power.
Heath v. Alabama, 474 U.S. 82, 89 (1985). Thus, as the Supreme Court has
explained, “[T]he apt analogy to the relationship between municipal and state
governments is to be found in the relationship between the government
of a Territory and the Government of the United States,” not in the relationship
between a State government and the National Government. Waller v. Florida,
397 U.S. at 392-93.
The respondent also contends that interpreting the phrase “any law
or regulation of a State” to include municipal ordinances would run afoul
of the presumption that Congress acts deliberately when it “includes particular
language in one section of a statute but omits it in another section of the same
Act.” E.g., Russello v. United States, 464 U.S. 16, 23 (1983) (quoting
United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). In support
of that argument, the respondent points to two provisions of section 237(a)
in which State laws and local laws are referenced in the disjunctive, thereby
suggesting that Congress understands them to be mutually exclusive.
See section 237(a)(2)(E)(i) of the Act (providing for the deportability
of individuals who are convicted of crimes of violence committed “against
a person who is protected from that individual’s acts under the domestic
or family violence laws of . . . any State . . . or unit of local government”);
section 237(a)(6)(A) of the Act (providing for the deportability of “[a]ny alien
who has voted in violation of any Federal, State, or local constitutional
provision, statute, ordinance, or regulation”). According to the respondent,
these specific references to local laws or ordinances give rise to the negative
inference that Congress deliberatelyomitted such references from the language
of section 237(a)(2)(B)(i). We draw no such inference for several reasons.
First, “The Russello presumption—that the presence of a phrase in one
provision and its absence in another reveals Congress’ design—grows weaker
with each difference in the formulation of the provisions under inspection.”
Clay v. United States, 537 U.S. 522, 532 (2003) (quoting City of Columbus
v. Ours Garage & Wrecker Service, Inc., 546 U.S. at 435-36) (internal
quotation marks omitted). The “provisions under inspection” here—section
237(a)(2)(B)(i) on the one hand and sections 237(a)(2)(E)(i) and(6)(A) on the
other—bear scant resemblance to one another; they pertain to entirelydifferent
subject-matter areas and are grammaticallyand syntacticallydissimilar. Given
these marked differences, we do not consider the language of sections
237(a)(2)(E)(i) and (6)(A) to be a reliable index of the legislative intent
underlying section 237(a)(2)(B)(i).Cite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
7 The phrase “any law or regulation of a State . . . relating to a controlled substance” was first
introduced into the Act by section 1751(a) of the Anti-Drug Abuse Act of 1986, Pub. L. No.
99-570, 100 Stat. 3207, 3207-47, a statute that dramatically expanded the Federal penalty
scheme for drug offenders. See generally Gozlon-Peretz v. United States, 498 U.S. 395,
401-04 (1991) (discussing the broad scope and enforcement-oriented purpose of the
Anti-Drug Abuse Act of 1986). The legislative history of the Anti-Drug Abuse Act of 1986
does not further explain Congress’ intent in using the phrase “law or regulation of a State”
in section 237(a)(2)(B)(i), and the respondent has not invoked any legislative history
to support his position. Sections 237(a)(2)(E)(i) and (6)(A) were added to the Act pursuant
to sections 350 and 347, respectively, of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-638
to 3009-640 (effective Apr. 1, 1997).
859
Furthermore, the relevant language of section 237(a)(2)(B)(i) was
codified 10 years before the enactment of sections 237(a)(2)(E)(i) and (6)(A).7
It is well settled that “later-enacted laws . . . do not declare the meaning
of earlier law.” Almendarez–Torres v. United States, 523 U.S. 224, 237 (1998)
(“[W]e do not find in [later-enacted laws] any forward looking legislative
mandate, guidance, or direct suggestion about how courts should interpret the
earlier provisions.”) The Russello presumption is at its weakest when the
statutory sections being compared were enacted at different times by different
Congresses. See Gomez-Perez v. Potter, 553 U.S. 474, 486 (2008) (finding the
Russello presumption inapplicable where the statutory sections being
compared pertained to related subject matter but were enacted several years
apart);see also United States v. Boender, 649 F.3d 650, 660-61 (7th Cir. 2011)
(same); United States v. O’Donnell, 608 F.3d 546, 552 (9th Cir. 2010) (same),
cert. denied, 131 S. Ct. 1837 (2011).
Finally, interpreting section 237(a)(2)(B)(i) to encompass municipal
ordinance violations does not render superfluous the specific references
to local laws or ordinances in sections 237(a)(2)(E)(i) and (6)(A). Those latter
provisions were enacted as part of the comprehensive amendments of 1996,
which were designed to be exceedinglybroad. See Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, 110
Stat. 3009-546 (“IIRIRA”). There is every reason to believe that the language
of the IIRIRA amendments included specific references to local laws, not
because Congress considered local laws to be distinct from State laws, but
rather because Congress wished to remove all doubt as to the breadth of its
intentions, thereby mitigating the risk that reviewing courts and administrative
adjudicators would construe its language narrowly. See Kawashima v. Holder,
132 S. Ct. 1166, 1174 (2012) (holding that technically redundant language
is not superfluous if it was added to “remove any doubt” as to Congress’
intentions); Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008) (same).Cite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
8 Whether a crime is punishable (or punished) under State law by a term of imprisonment
of more than 1 year is not relevant to the aggravated felony inquiry: “Under the rationale
of Lopez v. Gonzales, [549 U.S. 47], whether a State drug offense is a ‘drug trafficking
crime’ aggravated felony turns solely on its correspondence to a Federal felony, not on how
the State graded the offense.” Matter of Aruna, 24 I&N Dec. 452, 454 (BIA 2008). The
respondent’s appellate argument to the contrary is foreclosed.
860
In light of the foregoing, we conclude that the respondent’s January
2008 Wichita conviction for marijuana possession renders him deportable
as an alien convicted of a violation of any law or regulation of a State relating
to a controlled substance. Section 237(a)(2)(B)(i) of the Act. Because
the respondent also sustained a second marijuana possession conviction
in September 2008, he is not covered by the exception to deportability for
an alien convicted of a “single offense involving possession for one’s own use
of thirty grams or less of marijuana.” Id. Under the plain language of section
237(a)(2)(B)(i) of the Act, two marijuana possession offenses cannot constitute
a “single offense.”
C. Aggravated Felony
The respondent’s deportability under section 237(a)(2)(B)(i) of the Act
is sufficient to carry the DHS’s burden of proving removability. Nevertheless,
it is necessary for us to decide whether the respondent has sustained
an “aggravated felony” conviction, because the existence of such a conviction
would also render him ineligible for cancellation of removal and most other
forms of relief. See, e.g., section 240A(a)(3) of the Act, 8 U.S.C.
§ 1229b(a)(3) (2006).
Section 101(a)(43)(B) of the Act defines the term “aggravated felony”
to include “illicit trafficking in a controlled substance . . . , including a drug
trafficking crime (as defined in section 924(c) of title 18).” In turn, 18 U.S.C.
§ 924(c)(2) defines a “drug trafficking crime” to mean “any felony punishable
under,” inter alia, “the Controlled Substances Act (21 U.S.C. 801 et seq.).”
Interpreting these provisions, the Supreme Court has held that a State
drug offense qualifies as a “drug trafficking crime”—and, by extension,
an aggravated felony—if its elements correspond to or include all the elements
of an offense that carries a maximum term of imprisonment exceeding 1 year
under the Controlled Substances Act (“CSA”). Lopez v. Gonzales, 549 U.S.
47, 56 & n.7, 57 (2006) (“[A] state offense whose elements include the
elements of a felony punishable under the CSA is an aggravated felony.”).8
According to the Immigration Judge, the offense underlying the
respondent’s September 2008 conviction under sections 65-4162(a) and
(b) of the Kansas Statutes Annotated is an aggravated felony becauseCite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
9 The Supreme Court “observe[d] that a reading of this statutory scheme that would apply
an ‘aggravated’ or ‘trafficking’ label to any simple possession offense is, to say the least,
counterintuitive and ‘unorthodox.’” Carachuri-Rosendo v. Holder, 130 S. Ct. at 2585
(quoting Lopez v. Gonzales, 549 U.S. at 54 ). We recognize the Court’s point, but we are
obliged to apply the statutory scheme as written.
The Supreme Court found it “unorthodox” that Carachuri would be labeled
an aggravated felon when the conviction under review involved the possession of a “trivial
amount of a prescription drug,” a State law misdemeanor for which he was sentenced
to a mere 10 days in jail. Id. By contrast, the respondent was convicted of a State law
felony involving the possession of a nonprescription drug and was sentenced to 10 months
in jail.
861
it corresponds to “recidivist possession,” which the CSA punishes as a felony.
See Lopez v. Gonzales, 549 U.S. at 55 n.6 (acknowledging that “state
possession crimes that correspond to felony violations of [the CSA], such
as . . . recidivist possession, clearly fall within the definitions used by Congress
in 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2)” (citation omitted)).
To be precise, 21 U.S.C. § 844(a)—the section of the CSA dealing with simple
possession offenses—states in pertinent part that a person may be sentenced
as a felon “if he commits [a simple possession] offense after . . . a prior
conviction for any drug, narcotic, or chemical offense chargeable under the
law of any State, has become final.”
We have previously determined that a State conviction for simple
possession of a controlled substance cannot qualify as an aggravated felony
conviction by virtue of its correspondence to “recidivist possession” unless
“the alien’s status as a recidivist drug offender was either admitted by the alien
or determined by a judge or jury” in the State criminal proceedings.
Matter of Carachuri-Rosendo, 24 I&N Dec. 382, 391, 394 (BIA 2007) (“[A]
State conviction cannot ‘proscribe conduct punishable as’ recidivist possession
[within the meaning of Lopez v. Gonzales] unless the State successfully sought
to impose punishment for a recidivist drug conviction.”); see also Matter
of Thomas, 24 I&N Dec. 416 (BIA 2007). Upon review, the Supreme Court
agreed, holding that “when a defendant has been convicted of a simple
possession offense that has not been enhanced based on the fact of a prior
conviction, he has not been ‘convicted’ . . . of a ‘felony punishable’ as such
‘under the Controlled Substances Act,’” as required for aggravated felony
treatment. Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2589 (2010).
Despite the foregoing limitations, the Supreme Court has clarified
that “it is still true that recidivist simple possession offenses charged and
prosecuted as such ‘clearly fall’ within the definition of an aggravated felony.”
Carachuri-Rosendo v. Holder, 130 S. Ct. at 2585 n.10 (quoting Lopez
v. Gonzales, 549 U.S. at 55 n.6).9 Thus, the question before us here is whetherCite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
10 The phrase “drug, narcotic, or chemical offense” is defined by 21 U.S.C. § 844(c)
to include “any offense which proscribes the possession . . . [of] any substance the
possession of which is prohibited under this subchapter,” a class of substances that includes
marijuana.
11 At the time of the respondent’s January 2008 Wichita conviction, a defendant convicted
of violating a municipal ordinance in Kansas had 10 business days in which to appeal that
conviction as of right for a trial de novo in the district court for the county encompassing
(continued…)
862
the respondent has been convicted of a recidivist possession offense that was
“charged and prosecuted as such.” We conclude that he was.
The respondent’s September 2008 conviction under sections 65-4162(a)
and (b) of the Kansas Statutes Annotated resulted from proceedings
in which he was charged and sentenced as a recidivist. Specifically, the
Complaint/Information that commenced those proceedings charged the
respondent as follows:
[O]n or about the 24th day of January, 2008, A.D., in the County of Sedgwick, State
of Kansas, one ROBERTO E. CUELLAR-GOMEZ did then and there unlawfully,
intentionally possess a controlled substance, to-wit: marijuana at . . . Wichita,
Sedgwick County, Kansas, after having been convicted previously of Possession
of Marijuana, on the 3rd day of January, 2008, Case No. 07DR2218, in the City
of Wichita, Kansas Municipal Court.
The Judgment reflects that the respondent entered a plea of guilty, and the
court identified the offense of conviction as “Possession of Marijuana after
Previous Conviction.” Further, for sentencing purposes the court classified the
crime as a severity level 4, nonperson felony, a denomination that was
consistent only with a recidivism finding.
The elements of the respondent’s offense correspond to the elements
of “recidivist possession” under the CSA. Like 21 U.S.C. § 844(a), Kansas
law requires proof beyond a reasonable doubt that possession of a controlled
substance was at least “knowing,” see State v. Washington, 772 P.2d 768,
771 (Kan. 1989), and both the CSA and Kansas law define the concept
of “possession” to encompass actual and constructive possession. Compare
United States v. Cruz, 285 F.3d 692, 697 (8th Cir. 2002), and United States
v. Conway, 73 F.3d 975, 982 (10th Cir. 1995), with State v. Washington,
772 P.2d at 771. Furthermore, the respondent’s Wichita conviction was for
marijuana possession, a “drug, narcotic or chemical offense” under 21 U.S.C.
§ 844(c),10 and the respondent concedes that his subsequent marijuana
possession offense was committed after the Wichita conviction had become
“final” by virtue of the expiration of the statutory appeal period prescribed
by section 22-3609(2) of the Kansas Statutes Annotated.11Cite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
(…continued)
the relevant municipality, with the 10-day period commencing on the date when the
municipal court announced its judgment. Kan. Stat. Ann. §§ 12-4602, 22-3609, 22-3610,
60-206(a)(1) (West 2008); see also City of Derby v. Haskins, 3 P.3d 557 (Kan. Ct. App.
2000); Paletta v. City of Topeka, 893 P.2d 280 (Kan. Ct. App. 1995).
12 We have not required an exact correspondence between State recidivism procedures and
those prescribed by the CSA. See Matter of Carachuri-Rosendo, 24 I&N Dec. at 391
(“It is not necessary . . . for the structure of the underlying State law to be comparable to the
structure of the CSA. Lopez v. Gonzales, [549 U.S. 47], requires a focus on a counterpart
‘offense,’ not a counterpart law.”). Moreover, State recidivism procedures need not
“categorically match” those required by 21 U.S.C. § 851, because the categorical approach
is concerned with establishing a correspondence between the “elements” of State and
Federal offenses. James v. United States, 550 U.S. 192, 202 (2007) (holding that the
categorical approach asks “whether the elements of the [State] offense are of the type that
would justify its inclusion” within a Federal category of crimes); cf. United States
v. Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010) (holding that “[t]he availability
of an affirmative defense is not relevant to the categorical analysis” because
(continued…)
863
As the respondent points out, the CSA requires that a defendant charged
with recidivism must be served in advance with an “enhancement information”
specifying the prior convictions to be relied upon. 21 U.S.C. § 851(a) (2006).
Furthermore, a Federal drug defendant charged with recidivism has a right
to challenge the validity of his prior convictions (provided they are reasonably
recent) and to require the Government to come forward with proof of them.
21 U.S.C. § 851(c). As we explained in Matter of Carachuri-Rosendo,
24 I&N Dec. at 391, these requirements provide defendants with “notice and
an opportunity to be heard on whether recidivist punishment is proper,” rights
that we consider to be “part and parcel of what it means for a crime
to be a ‘recidivist’ offense.”
Here, the charge set forth in the Complaint/Information, quoted above,
provided the respondent with pretrial notice that the State government was
seeking a recidivist enhancement against him and also identified the prior
conviction with particularity. Furthermore, Kansas drug defendants who
dispute the existence or validity of prior convictions have a right to challenge
the convictions and to require the government to prove those convictions to the
sentencing judge. Kan. Stat. Ann. § 21-4715 (West 2008); see also State
v. Delacruz, 899 P.2d 1042 (Kan. 1995). The procedures specified by section
21-4715 of the Kansas Statutes Annotated are not as elaborate as those
described in 21 U.S.C. § 851, but they are sufficient to establish that the
respondent had notice that he was facing a recidivist enhancement, as well
as a meaningful opportunity to object to the propriety of such an enhancement
and to put the government to its proof.12Cite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
(…continued)
an affirmative defense is not an offense “element”), cert. denied, 132 S. Ct. 1727 (2012).
The requirements of 21 U.S.C. § 851 are not “elements” of an offense because they need not
be proven to a jury beyond a reasonable doubt. Accord Jones v. United States, 526 U.S.
227, 232 (1999) (holding that offense “elements must be charged in the indictment,
submitted to a jury, and proven by the Government beyond a reasonable doubt”).
13 The phrase “chargeable under State law” also appears in the RICO statute, 18 U.S.C.
§ 1961(1)(A), which defines “racketeering activity” as “any act or threat involving murder,
kidnapping, [etc.], which is chargeable under State lawand punishable by imprisonment for
more than one year.” (Emphasis added.) Courts have interpreted the term “chargeable”
very broadly in the context of that statute, holding that it merely requires the defendant’s
conduct to have been of a type that the State deems criminal in a generic sense, even if the
State would not have permitted the conduct to be prosecuted in a particular case because
of constitutional, procedural, or evidentiary restrictions. E.g., United States v. Coonan,
938 F.2d 1553, 1563-64 (2d Cir. 1991); United States v. Paone, 782 F.2d 386, 393-94 (2d
Cir. 1986).
14 Similarly, a conviction for a local ordinance violation is counted as a valid prior
conviction under the criminal history provisions of the Federal Sentencing Guidelines if the
underlying offense was also a violation of State criminal law. See U.S.S.G. § 4A1.2(c)(2);
see also United States v. Gray, 126 F.3d 1109, 1110-11 (8th Cir. 1997); United States
v. Hooks, 65 F.3d 850, 855 (10th Cir. 1995).
864
The respondent’s main argument in opposition to the aggravated felony
charge is similar to that which he advanced in support of his challenge to the
section 237(a)(2)(B)(i) charge. Specifically, the respondent maintains that his
Wichita conviction could not be a valid predicate for a recidivism charge under
the CSA because 21 U.S.C. § 844(a) requires that a prior conviction be for
an offense “chargeable under the law of any State.” According to the
respondent, his Wichita offense does not fit that description because it was
prosecuted as a municipal ordinance violation rather than as a violation
of State law. We do not agree.
Under the plain language of 21 U.S.C. § 844(a), a conviction is a valid
predicate for a recidivist enhancement if it was for an otherwise qualifying
crime that was “chargeable under the law of any State.” We are not aware
of any Federal court decision interpreting that phrase as it appears
in § 844(a).13 In common legal parlance, however, the term “chargeable”
simply means “capable or liable of being charged as a criminal offense.”
Black’s Law Dictionary 249 (8th ed. 2004). Thus, the relevant question under
21 U.S.C. § 844(a) is not whether the respondent was convicted under
a particular State law, but rather whether his offense of conviction was capable
of being charged under such a law.14 In the respondent’s case, the answer
to that question is clearly yes.
Under Kansas law, municipal and State courts have concurrent jurisdiction
over offenses that violate both a city ordinance and a parallel State statute,Cite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
15 We take administrative notice of the content of Kansas law. 8 C.F.R. § 1003.1(d)(3)(iv)
(2012); see also Lamar v. Micou, 114 U.S. 218, 223 (1885) (“The law of any state of the
(continued…)
865
including misdemeanor marijuana possession offenses. See Kan. Stat. Ann.
§ 12-4104(a)(5). Moreover, a city police officer who arrests a suspect within
city limits has discretion whether to file charges in municipal court or State
district court. E.g., State v. Wright, 995 P.2d 416, 417-18 (Kan. Ct. App.
2000); State v. Frazier, 736 P.2d 956, 957-58 (Kan. Ct. App. 1987). Thus,
even if we assume that a Wichita ordinance is not a “law of any State” within
the meaning of the CSA, the respondent’s offense was nevertheless chargeable
under such a law. Accordingly, we conclude that the respondent’s Wichita
conviction is a valid predicate for a recidivist enhancement under 21 U.S.C.
§ 844(a).
According to the respondent, focusing on whether his offense could have
been charged under State law is impermissible because it is a “hypothetical”
inquiry of the sort proscribed by the Supreme Court in Carachuri-Rosendo
v. Holder, 130 S. Ct. at 2586-89. We find this argument unpersuasive. In that
case, the Government treated Carachuri-Rosendo as if he had been “convicted”
of all the elements of recidivist possession, even though recidivism had never
been alleged or proven in his State trial, simply because a Federal prosecutor
could hypothetically have brought a recidivist possession charge against
a person with his criminal history. From the Supreme Court’s point of view,
the problem with that sort of hypothetical approach is that it “introduces
a level of conjecture” into what should be a “categorical” inquiry, concocting
a “fictional federal felony” out of a defendant’s overall criminal history
and then treating the defendant as if he had been “convicted” of that fictional
offense, even though its elements were never admitted by the defendant
or proven to a jury beyond a reasonable doubt. Carachuri-Rosendo
v. Holder, 130 S. Ct. at 2588; see also Matter of Carachuri-Rosendo,
24 I&N Dec. at 393 (rejecting the “hypothetical” approach because it “would
authorize Immigration Judges to collect a series of disjunctive facts about
the respondent’s criminal history, bundle them together for the first
time in removal proceedings, and then declare the resulting package
to be ‘an offense’ that could have been prosecuted as a Federal felony”).
Here, bycontrast, we treat the respondent as “convicted” of only those facts
that were proven beyond a reasonable doubt (or admitted) in his Kansas
criminal proceedings. The respondent was charged, convicted, and sentenced
as a recidivist in Kansas, and whether his prior offense was “chargeable”
under Kansas law is not a “hypothetical” or conjectural question, but rather
a factual and legal one, the answer to which is readily ascertained by reference
to the State’s statutory and decisional law.15Cite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
(…continued)
Union, whether depending upon statutes or upon judicial opinions, is a matter of which the
courts of the United States are bound to take judicial notice, without plea or proof.”); Saffold
v. McGraw-Edison Co., 566 F.2d 621, 623 (8th Cir. 1977) (same); Parker v. Parker, 82 F.2d
575, 577 (10th Cir. 1936) (same).
866
In light of the foregoing, we conclude that the respondent stands convicted
of an aggravated felony because the elements of the Kansas offense of which
he was convicted in September 2008 correspond categorically to the elements
of recidivist possession under 21 U.S.C. § 844(a), a Federal felony.
IV. CONCLUSION
In conclusion, the respondent’s January 2008 Wichita conviction provides
a valid factual basis for the removal charges in this matter. Specifically, the
Wichita judgment is a “conviction” under section 101(a)(48)(A) of the Act;
a conviction for “violation of . . . any law or regulation of a State” within the
meaning of section 237(a)(2)(B)(i) of the Act; and a valid predicate for
a recidivist possession charge under 21 U.S.C. § 844(a). Accordingly, because
the respondent is removable as charged and was properly found ineligible for
all requested relief, his appeal will be dismissed.
ORDER: The appeal is dismissed.