                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-1481
JOSE LUIS GARCIA,
                                                      Petitioner,
                               v.

JOHN D. ASHCROFT,
                                                     Respondent.

                        ____________
                Petition for Review of an Order of
               the Board of Immigration Appeals.
                         No. A91 005 287
                        ____________
   ARGUED NOVEMBER 17, 2004—DECIDED JANUARY 6, 2005
                        ____________




  Before COFFEY, MANION, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. Jose Luis Garcia has been in the
United States without authorization since 1977. In 1988 he
pleaded guilty in an Illinois court to simple possession of a
small quantity of cocaine, but after he successfully com-
pleted probation under the state’s deferred-adjudication
statute, the charge was dismissed. Then in 2000 the former
Immigration and Naturalization Service (“INS”) charged
Garcia as removable, alleging both that he is in the United
States illegally and that he had been “convicted” of a con-
trolled substance offense because of his guilty plea in 1988.
The Immigration Judge (“IJ”) agreed with both contentions
2                                                   No. 04-1481

and ordered Garcia removed. In addition, though, the IJ
concluded that Garcia’s drug offense also qualified as an
“aggravated felony,” making Garcia ineligible for voluntary
removal. Garcia petitions for review, arguing that his Illinois
drug offense should not be characterized as an “aggravated
felony” because the same conduct if prosecuted in federal
court would have resulted in a misdemeanor conviction. We
cannot address that question, however, because Garcia does
not dispute that for immigration purposes his guilty plea
resulted in a conviction for a controlled substance offense
that strips us of jurisdiction to further review whether the
offense is properly characterized as an aggravated felony.
Still, rather than dismiss Garcia’s petition for lack of
jurisdiction, we follow our recent decision in Yanez-Garcia
v. Ashcroft, 388 F.3d 280 (7th Cir. 2004), and transfer it to
the district court under 28 U.S.C. § 1631 for consideration
as a petition for a writ of habeas corpus.


                                I.
  In 1988 Garcia was caught in Illinois with 0.23 grams
of cocaine and pleaded guilty to simple possession of a
controlled substance. At the time, the Illinois Controlled
Substances Act classified possession of less than 15 grams
of cocaine as a Class 4 felony. Ill. Rev. Stat., ch. 56.5 § 1402(c)
(1988). However, Garcia was sentenced under former
§ 1410, see Ill. Rev. Stat., ch. 56.5 § 1410 (1987) (now codified
at 720 Ill. Comp. Stat. 570/410), which permits a sentencing
court to defer entry of judgment for first-time drug offend-
ers and impose a term of probation. Garcia satisfactorily
completed his term of probation term in October, and after-
ward the criminal charge was dismissed. Under Illinois law,
a charge dismissed under § 1410 is not deemed to be a con-
viction. 720 Ill. Comp. Stat. 570/410(f).
  In 2000 the INS charged Garcia as removable because he
is not authorized to be in the United States, INA
§ 212(a)(6)(A)(I), 8 U.S.C. § 1182(a)(6)(A)(I), and because, in
No. 04-1481                                                  3

the agency’s view, Garcia’s guilty plea resulted in a convic-
tion for possession of a controlled substance, INA
§ 212(a)(2)(A)(I)(II), 8 U.S.C. § 1182(a)(2)(A)(I)(II). At his
removal hearing Garcia conceded that he is in the country
illegally, but argued that for immigration purposes he does
not have a conviction because—as far as Illinois is con-
cerned—the drug charge resulted in a dismissal, not a con-
viction. Federal immigration law gives no effect to a state
action (here the dismissal after successful completion of
§ 1410 probation) that purports to expunge a guilty plea or
conviction by operation of a state rehabilitative statute.
Therefore, the IJ reasoned the Illinois proceedings did re-
sult in a conviction for a controlled substance offense. At his
hearing Garcia also requested voluntary removal, but the IJ
concluded that Garcia is ineligible for that relief because
the Illinois charge not only resulted in a conviction for a
controlled substance offense, but also qualified as an
“aggravated felony,” see INA §§ 101(a)(43)(B), 240(b)(b)(1).
The Board of Immigration Appeals (“BIA”) affirmed the IJ’s
decision without opinion.


                             II.
  In his petition for review, Garcia does not dispute that his
unauthorized presence in the United States provides a
sufficient basis for removal. And, despite the position he
took before the IJ, Garcia now concedes that his 1988 guilty
plea did result in a “conviction” for a controlled substance
offense, regardless how Illinois characterizes his successful
completion of § 1410 probation. See Gill v. Ashcroft, 335
F.3d 574, 579 (7th Cir. 2003). Garcia’s only contention here
is that his Illinois drug conviction does not qualify as an
aggravated felony.
  That question, however, is not properly before us. We do
not have jurisdiction to review a finding that an alien is re-
movable on account of a conviction for a criminal offense
4                                               No. 04-1481

included in INA § 212(a)(2). See INA § 242(a)(2)(C), 8 U.S.C.
§ 1252(a)(2)(C); Yanez-Garcia, 388 F.3d at 283; Morales-
Morales v. Ashcroft, 384 F.3d 418, 422 (7th Cir. 2004). A
controlled substance offense is such a conviction. 8 U.S.C.
§ 1227(a)(2)(B)(i); Yanez-Garcia, 388 F.3d at 283. And since
Garcia does not—and cannot—dispute that his Illinois drug
possession resulted in a conviction for a controlled sub-
stance offense, see Gill, 335 F.3d at 579, we are stripped of
jurisdiction to proceed on to the question whether Garcia’s
conviction also can be characterized as an aggravated
felony. See Yanez-Garcia, 388 F.3d at 283.
  In Yanez-Garcia, we were asked to decide whether a state
felony conviction arising from drug conduct punishable only
as a misdemeanor under federal law can be deemed an
“aggravated felony” for immigration purposes. Id. Much like
the present case, the two petitioners in Yanez-Garcia had
pleaded guilty under Illinois law to simple possession of a
small amount of cocaine, a Class 4 felony, 720 Ill. Comp.
Stat. 570/402(c). But under federal law the same first-time,
simple-possession offense would have been a misdemeanor,
21 U.S.C. § 844(a). The INS charged both aliens as remov-
able because of these convictions; the agency asserted, and
the IJ and BIA agreed, that the convictions were controlled
substance offenses, INA § 237(a)(2)(B), 8 U.S.C.
§ 1227(a)(2)(B), and more specifically “drug trafficking
crimes” and thus aggravated felonies, INA § 101(a)(43)(B), 8
U.S.C. § 1101(a)(43)(B). See Matter of Yanez, 23 I. & N. Dec.
390, 391 (BIA 2002). In determining whether drug convic-
tions are “drug trafficking crimes” and thus aggravated
felonies, the BIA applies the particular circuit’s rule as to
whether the state or federal characterization of the drug
crime determines if it is a “drug trafficking crime.” See
Yanez-Garcia, 388 F.3d at 282. Where the question is still
open, as it is in this circuit, the BIA applies the majority
rule that the state-law characterization of the offense
controls. See id. Thus, both aliens’ possession convictions
No. 04-1481                                                 5

qualified as aggravated felonies, making them ineligible for
discretionary relief from the INS. Id. As in this case, the
aliens petitioned for review, arguing that the federal
characterization of the offense should control and that their
convictions should not be considered aggravated felonies
because they were punishable only as misdemeanors under
federal law. Id. We recognized, however, that because the
petitioners conceded that, at the very least, their convic-
tions were for controlled substance offenses, we lacked
jurisdiction to decide whether the crimes also were aggra-
vated felonies. See INA § 242(a)(2)(C), 8 U.S.C.
§ 1252(a)(2)(C) (barring judicial review of any final order of
removal entered against alien removable based on a
controlled substance conviction). Yanez-Garcia, 388 F.3d at
283. Still, rather than dismiss the petition, “in the interest
of justice” we transferred the case to the district court
under 28 U.S.C. § 1631 for consideration as a petition for
habeas corpus under 28 U.S.C. § 2241. Id. at 284.
  The present case is indistinguishable from Yanez-Garcia.
Garcia was properly found removable based on his con-
trolled substance offense, and, as in Yanez-Garcia, we lack
jurisdiction to decide whether that state felony conviction,
punishable only as a misdemeanor under federal law,
qualifies as an aggravated felony. That question can be
addressed only by way of a § 2241 petition, not by way of a
petition for review of a final decision of the BIA. Accord-
ingly, as in Yanez-Garcia, we construe Garcia’s petition as
one for relief under § 2241 and order it transferred to the
district court. The parties have 14 days to confer and sub-
mit a joint statement identifying the appropriate district to
which this case should be transferred.
6                                        No. 04-1481

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—1-6-05
