                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 November 2, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-60539
                          Summary Calendar


LYNDON L. JORDAN,

                                    Petitioner,

versus

ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL,

                                    Respondent.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A36 481 680
                        --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Lyndon Jordan, a native of Guyana and a lawful permanent

resident of the United States, petitions for review of the final

order of the Board of Immigration Appeals (BIA) affirming without

opinion an Immigration Judge (IJ) decision finding Jordan

removable as an alien convicted of an aggravated felony.        Under

8 U.S.C. § 1227(a)(2)(A)(iii).   Jordan argues that the IJ erred

in finding a 2002 New York marihuana conviction to be an

aggravated felony under 8 U.S.C. § 1227.



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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     Under 8 U.S.C. § 1252(a)(2), this court has jurisdiction to

review claims, such as Jordan’s, raising questions of law.

8 U.S.C. § 1252(a)(2)(D).    See also Rodriguez-Castro v. Gonzales,

427 F.3d 316, 319 (5th Cir. 2005) (holding § 1252 applies

retroactively to cases pending upon its enactment); Omari v.

Gonzales, 419 F.3d 303, 306 (stating that question of whether a

prior conviction is an aggravated felony is a legal one).     Even

if the REAL ID Act did not provide jurisdiction, this court would

“have jurisdiction to determine [its] own jurisdiction, i.e., to

determine whether the conviction qualifies as an aggravated

felony.”   Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005)).

     This court accords substantial deference to the BIA’s

interpretation of the INA.    Omari, 419 F.3d at 306-07 (citing

Smalley v. Ashcroft, 354 F.3d 332, 335-36 (5th Cir. 2003)).        The

court reviews de novo “whether the particular statute that the

prior conviction is under falls within the relevant INA

definition.”   Id. (citations omitted).     Because the BIA affirmed

"without opinion," this court directly review the IJ's decision.

Soadjede v. Ashcroft, 324 F.3d 830, 831-32 (5th Cir. 2003).

     Under the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA), an alien who commits an aggravated

felony is removable.   8 U.S.C. § 1227(a)(2)(A)(iii).    Under 8

U.S.C. § 1101(a)(43)(B), an “aggravated felony” includes “drug

trafficking crime[s], as defined by 18 U.S.C. § 924(c).     A “drug

trafficking crime” has two elements under § 924(c)(2):     (1) the
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                                  -3-

offense is punishable under the Controlled Substances Act (CSA)

and (2) that the offense is a felony under federal or state law.

United States v. Sanchez-Villalobos, 412 F.3d 572, 574 (5th Cir.

2005), cert. denied, 126 S.Ct. 1142 (2006).     Such a drug offense

is a felony if it “is punishable by imprisonment for more than

one year under any law of the United States or of a State or

foreign country that prohibits or restricts conduct relating to

narcotic drugs, marihuana, anabolic steroids, or depressant or

stimulant substances.”    21 U.S.C. § 802(44); see Sanchez-

Villalobos, 412 F.3d at 574 (holding that § 802(44) provides the

applicable definition of “felony”).

     In analogous immigration cases involving determination of

whether a prior conviction constitutes an aggravated felony,

courts employ a categorical approach, looking first to the

elements of the offense, and then to the charging documents,

stipulated facts, or some other formal finding of the relevant

facts of conviction.     See Omari, 419 F.3d at 307.   If the offense

conduct charged can encompass something less than an aggravated

felony, the offense is not deemed an aggravated felony.       Id.

     In the instant case, Jordan was convicted of violating New

York Penal Law § 221.40, stating “A person is guilty of criminal

sale of marihuana in the fourth degree when he knowingly and

unlawfully sells marihuana except as provided in section 221.35

of this article.”   N.Y. PENAL LAW § 221.40.   The violation is a

state class A misdemeanor, for which the sentence “shall not
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exceed one year.”    Id.; N.Y. PENAL LAW § 70.15.    Section 221.35,

criminal sale of marihuana in the fifth degree (also a

misdemeanor), penalizes an individual who “knowingly and

unlawfully sells, without consideration, one or more

preparations, compounds, mixtures or substances containing

marihuana and the preparations, mixtures or substances are of an

aggregate weight of two grams or less; or one cigarette

containing marihuana.”    N.Y. PENAL LAW § 221.35.   An offense would

not be included in § 221.35 (and would be included in § 221.40)

either if the sale was (1) for consideration or (2) for an amount

of more than two grams or one cigarette.     See N.Y. PENAL LAW

§ 221.35.   Under New York law “sell” is defined as “to sell,

exchange, give or dispose of to another, or to offer or agree to

do the same.”    N.Y. PENAL LAW § 220.00.

     An individual may violate § 221.40 without that conviction

qualifying as a federal felony.     If an individual either sells

for consideration less than two grams or one cigarette of

marihuana or distributes without consideration more than two

grams or one cigarette of marihuana (but less than 25 grams) then

he has violated § 221.40 because the crime is not encompassed by

§ 221.35 (but has not risen to the 25 grams level of N.Y. PENAL

LAW § 221.45).   That state misdemeanor would not be a federal

felony if it fell within the purview of 21 U.S.C. § 841(b)(4).

Section 841(b)(4) provides that an individual who “distribut[es]

a small amount of marihuana for no renumeration” shall be
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punished as if for simple possession (21 U.S.C. § 844).        A

simple possession conviction under § 844 is punishable by a

maximum term of imprisonment of one year, unless the individual

has a prior narcotics conviction, in which case the individual

may be sentenced to a maximum term of two years imprisonment.        21

U.S.C. § 844(a).   Under 18 U.S.C. § 3559(a), a simple possession

conviction without a prior narcotics conviction would be a

federal misdemeanor (less than one year imprisonment), but the

two year maximum sentence conviction would be a federal felony.

Thus, a violation of N.Y. PENAL LAW § 221.40 is not categorically

an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B).        See

Omari, 419 F.3d at 308 (holding that a conviction under federal

fraud statute was not categorically an aggravated felony for

immigration purposes).

     Because the New York statute at issue is divisible, the

court may look to Jordan’s actual conviction to determine if it

was for conduct qualifying as an aggravated felony.      See id. 419

F.3d at 308 (citations omitted).    In such an analysis, the court

examines the record of conviction to determine if the particular

conviction qualifies as an aggravated felony.     Id.   In a

situation involving a guilty plea, the court may consider ”the

charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to

which the defendant assented.”     Shepard v. United States, 544

U.S. 13, 20-21 (2005); see Omari, 419 F.3d at 308.      The court may
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not consider “[d]ocuments not of that kind, including police

reports and complaint applications.”     Omari, 419 F.3d at 308.

     In this case, the only formal document of Jordan’s

conviction in the administrative record is the Certificate of

Disposition of the 2002 conviction.    That document states only

that Jordan pleaded guilty to a violation of N.Y. PENAL LAW

§ 221.40.   The document does not indicate that the conduct

involved a sale for consideration or the distribution or sale of

more than a small amount.   The document also does not indicate

that Jordan has prior narcotics convictions.    The documentation

does not support a finding that Jordan engaged in conduct or had

prior convictions that would raise his violation to the level of

a federal felony.   See Omari, 419 F.3d at 308-09 (finding record

insufficient to establish a prior conviction was an aggravated

felony where the only available formal documents of conviction

did not show that actual offense qualified).    Thus, the IJ erred

in finding that the prior state conviction qualified as an

aggravated felony for purposes of removal.

     The Government additionally argues that the IJ did not err

because Jordan was removable as an alien convicted of an offense

involving a controlled substance.     See 8 U.S.C. § 1227.   Under 8

U.S.C. § 1227, “[a]n alien who at any time after admission has

been convicted of a violation of . . . any law or regulation of a

State, the United States, or a foreign country relating to a

controlled substance (as defined in section 802 in Title 21)
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other than a single offense involving possession for one’s own

use of 30 grams or less of marijuana, is deportable.”    Although

the Government alleged the controlled substance grounds in the

Notice to Appear, the IJ did not rule on the issue.     A court

reviewing an agency decision may not conduct a de novo inquiry

into a matter not considered by an administrative agency and

reach its own conclusions in the matter based on its inquiry.

Gonzales v. Thomas, 126 S. Ct. 1613, 1615 (2006) (citations

omitted).   Because the agency has not considered whether the 2002

offense constituted a controlled substance offense, the matter

must be remanded to “bring its expertise to bear upon the

matter,” “evaluate the evidence,” and “make an initial

determination.”   INS v. Orlando Ventura, 537 U.S. 12, 17 (2002)

(per curiam) (quoted with approval in Thomas, 126 S. Ct. at

1615).

     Accordingly, Jordan’s petition for review is GRANTED and the

order of the BIA is VACATED and REMANDED for further proceedings

consistent with this opinion.

     PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.
