     07-2068-ag(L), 08-1942-ag(CON); 08-1112-ag
     Alsol v. Mukasey; Powell v. Mukasey

 1                    UNITED STATES COURT OF APPEALS
 2                          FOR THE SECOND CIRCUIT
 3                             _______________
 4
 5                                 August Term, 2008
 6
 7   (Argued: September 24, 2008                       Decided: November 14, 2008)
 8
 9             Docket Nos. 07-2068-ag(L), 08-1942-ag(CON), 08-1112-ag
10                           (consolidated for disposition)
11                                _______________
12
13                              KAREN NICOLA ALSOL,
14                                                             Petitioner,
15                                      —v.—
16
17           MICHAEL B. MUKASEY , UNITED STATES ATTORNEY GENERAL,
18                                                     Respondent,

19                                 _______________

20                         consolidated for disposition with
21                                _______________

22                            DONALD OVERTON POWELL,
23                                                             Petitioner,
24                                      —v.—
25
26           MICHAEL B. MUKASEY , UNITED STATES ATTORNEY GENERAL,
27                                                     Respondent.
28                            _______________

29   Before:

30                 CALABRESI, STRAUB, AND RAGGI, Circuit Judges.

31                                 _______________

32         Petitions for review of orders of the Board of Immigration Appeals



                                           1
 1   sustaining the Department of Homeland Security’s appeals and vacating the

 2   decisions of Immigration Judges granting petitioners’ applications for cancellation

 3   of removal upon finding that petitioners’ second state convictions for possession

 4   of a controlled substance were aggravated felonies because those offenses could

 5   have been charged in federal court as recidivist possession. We hold that a second

 6   conviction for simple controlled substance possession under state law is not a

 7   felony under the Controlled Substances Act because the offense of conviction

 8   does not proscribe conduct punishable as a felony as it does not correspond in any

 9   meaningful way with the federal crime of recidivist possession even if it could

10   have been prosecuted in state court as a recidivist offense. We further clarify that

11   our decision in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), did not hold

12   to the contrary.

13               PETITIONS GRANTED; VACATED AND REMANDED.

14                        _________________________________

15          TORI T. KIM , Wilmer Cutler Pickering Hale and Dorr LLP (Christopher J.
16          Meade, on the brief), New York, NY, for Petitioner Alsol.
17
18          ALINA DAS, Immigrant Rights Clinic, Washington Square Legal Services,
19          Inc., (Nancy Morawetz, on the brief), New York, NY, for Petitioner
20          Powell.
21
22          Sameer M. Ashar Supervising Attorney, Andrea Siebert-Llera, Legal
23          Intern, Ron Cerreta, Legal Intern, Main Street Legal Services, Inc., City
24          University of New York School of Law, Flushing, NY, on the brief,
25          formerly for Petitioner Powell.
26
27          MONICA G. ANTOUN , Trial Attorney (Jeffrey S. Bucholtz, Acting Assistant
28          Attorney General, Gregory G. Katsas, Assistant Attorney General, Francis
29          W. Fraser, Senior Litigation Counsel, on the brief), Office of Immigration


                                              2
 1          Litigation, Civil Division, U.S. Department of Justice, Washington, DC,
 2          for Respondent in 07-2068-ag(L) and 08-1942-ag(CON).
 3
 4          ERICA B. MILES, Attorney (Gregory G. Katsas, Assistant Attorney General,
 5          Linda S. Wernery, Assistant Director, on the brief), Office of Immigration
 6          Litigation, Civil Division, U.S. Department of Justice, Washington, DC,
 7          for Respondent in 08-1112-ag.
 8
 9         Joanne Macri, Director, Manuel D. Vargas, Senior Counsel, New York,
10         NY, for Amicus Curiae New York State Defenders Association, Immigrant
11         Defense Project.
12   _________________________________

13   STRAUB, Circuit Judge:

14          In these cases, which we heard in tandem and now consolidate for

15   disposition, Petitioners Karen Nicola Alsol and Donald Overton Powell seek

16   review of decisions of the Board of Immigration Appeals (“BIA”) vacating

17   decisions by an Immigration Judge (“IJ”) granting them cancellation of removal.

18   In 07-2068-ag(L) and 08-1942-ag(CON), Petitioner Alsol appeals from orders of

19   the BIA (1) sustaining the Department of Homeland Security’s (“DHS”) appeal

20   and vacating the October 31, 2006 decision of IJ Alan A. Vomacka granting her

21   application for cancellation of removal, In re Karen Nicola Alsol, aka Karen N.

22   Alsol, No. A43 732 327 (B.I.A. Apr. 16, 2007), vacating No. A43 732 327

23   (Immig. Ct. N.Y. City Oct. 31, 2006), and (2) denying her motion to reopen or

24   reconsider, In re Karen Nicola Alsol, aka Karen N. Alsol, No. A43 732 327

25   (B.I.A. Mar. 25, 2008). Petitioner Powell appeals from a BIA decision sustaining

26   the DHS’s appeal from IJ Noel Ann Brennan’s order granting cancellation of

27   removal. In re Donald Overton Powell, No. A17 560 142 (B.I.A. Feb. 25, 2008),



                                             3
 1   vacating No. A17 560 142 (Immig. Ct. N.Y. City Oct. 29, 2004). We grant the

 2   petitions for review, vacate the decisions below, and remand for proceedings

 3   consistent with this opinion.

 4                                   BACKGROUND

 5          The issue in these cases is whether a second conviction for simple drug

 6   possession under state law is a felony under the Controlled Substances Act

 7   (“CSA”) because it could have been prosecuted as a recidivist offense under 21

 8   U.S.C. § 844(a). We hold that it is not. We further clarify that our sentencing

 9   decision in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), does not

10   foreclose this holding.

11   I.     Karen Nicola Alsol

12          On September 5, 2002, Alsol pled guilty to one count of criminal

13   possession of a controlled substance in the seventh degree in violation of New

14   York Penal Law § 220.03 for possession of a controlled substance. She was

15   sentenced to three days imprisonment. On February 27, 2003, Alsol again pled

16   guilty to one count of criminal possession of a controlled substance in the seventh

17   degree; she was sentenced to five days imprisonment. Three years later, on July

18   18, 2006, DHS took Alsol into custody and placed her in removal proceedings. In

19   front of the IJ, Alsol conceded that she was removable under

20   8 U.S.C. § 1227(a)(2)(B)(I) for having been convicted of a crime relating to a

21   controlled substance. However, she did not concede she was removable under 8

22   U.S.C. § 1227(a)(2)(A)(iii) for an aggravated felony conviction and applied for


                                              4
 1   cancellation of removal under 8 U.S.C. § 1229b(a). On October 31, 2006, IJ

 2   Vomacka found that Alsol’s second possession conviction was not an aggravated

 3   felony and that she was eligible for cancellation of removal, relying on In re

 4   Elgendi, 23 I. & N. Dec. 515 (B.I.A. 2002). Upon finding that Alsol warranted a

 5   favorable exercise of discretion, the IJ granted her application for cancellation of

 6   removal.

 7           On December 5, 2006, the U.S. Supreme Court decided Lopez v.

 8   Gonzales, 127 S. Ct. 625 (2006), holding that “a state offense constitutes a ‘felony

 9   punishable under the Controlled Substances Act’ only if it proscribes conduct

10   punishable as a felony under that federal law.” Id. at 633. At the same time, in a

11   footnote, the Court noted:

12           Those state possession crimes that correspond to felony violations
13           of one of the three statutes enumerated in § 924(c)(2), such as . . .
14           recidivist possession, see 21 U.S.C. § 844(a), clearly fall within the
15           definitions used by Congress in 8 U.S.C. § 1101(a)(43)(B) and 18
16           U.S.C. § 924(c)(2), regardless of whether these federal possession
17           felonies or their state counterparts constitute “illicit trafficking in a
18           controlled substance” or “drug trafficking” as those terms are used
19           in ordinary speech.
20
21   Id. at 630 n.6.
22
23           On April 16, 2007, in a divided decision, the BIA sustained DHS’s appeal

24   in Alsol’s case, vacated the IJ’s decision, found Alsol to be ineligible for

25   cancellation of removal, and ordered Alsol removed to Jamaica. The BIA based

26   its decision on Lopez and our decision in United States v. Simpson, 319 F.3d 81




                                                 5
 1   (2d Cir. 2002).1 On May 15, 2007, Alsol, proceeding pro se and still in detention,

 2   filed a petition for review with this Court. At the same time, Alsol filed a motion

 3   to reopen and reconsider with the BIA, also pro se, arguing that her first

 4   conviction was not final at the time of her second conviction and that the IJ’s

 5   decision should be affirmed.

 6          On December 13, 2007, the BIA decided In re Carachuri-Rosendo, 24

 7   I. & N. Dec. 382 (B.I.A. 2007) (en banc), appeal docketed, Carachuri-Rosendo v.

 8   Mukasey, No. 07-61006 (5th Cir. Dec. 24, 2007), and In re Thomas, 24

 9   I. & N. Dec. 416 (B.I.A. 2007). The BIA held that, absent countervailing circuit

10   precedent, a second drug possession conviction was not an aggravated felony

11   unless the petitioner’s “status as a recidivist drug offender was either admitted . . .

12   or determined by a judge or jury in connection with a prosecution for [the second]

13   offense.” Carachuri-Rosendo, 24 I. & N. Dec. at 394; accord Thomas, 24 I. & N.

14   Dec. at 421. Thus, a second drug possession offense could not be equated to a

15   federal felony under the CSA unless it “corresponds in a meaningful way to the

16   essential requirements that must be met before a felony sentence can be imposed


            1
              In Simpson, the appellant had been convicted three times for selling marijuana and once
     for possessing marijuana in 1992 and 1993, all misdemeanors under New York law. In the
     process of deciding that the District Court correctly chose the higher of two applicable
     enhancements under the Guidelines, we noted that the District Court correctly found Simpson’s
     convictions for the sale of marijuana to be aggravated felonies within the meaning of 18 U.S.C.
     § 924(c)(2) because, under the Controlled Substances Act (“CSA”), those crimes were treated as
     felonies. See 319 F.3d at 85. We also went on to note that Simpson’s marijuana possession
     conviction was “an aggravated felony within the meaning of the Guidelines,” citing the recidivist
     possession statute. Id. At 86. However, “[w]e offer[ed] no comment on whether such
     convictions constitute ‘aggravated felonies’ for any purpose other than the [Sentencing]
     Guidelines.” Id. at 86 n.7.

                                                6
 1   under Federal law on the basis of recidivism.” Carachuri-Rosendo, 24 I. & N.

 2   Dec. at 390.

 3          On March 25, 2008, the BIA denied Alsol’s motion to reopen and

 4   reconsider, finding principally that despite its decision in Carachuri-Rosendo, 24

 5   I. & N. Dec. 382, our decision in Simpson, 319 F.3d 81, represented

 6   countervailing circuit precedent barring application of the Carachuri-Rosendo

 7   rule. On April 23, 2008, Alsol, through counsel, petitioned for review of the

 8   denial of her motion to reopen and reconsider; we consolidated Alsol’s two

 9   petitions for review.

10   II.    Donald Overton Powell

11          On July 3, 1997, Powell pled guilty to seventh degree criminal possession

12   of a controlled substance in violation of New York Penal Law § 220.03, a

13   misdemeanor. He was sentenced to six months’ imprisonment. On January 8,

14   2001, Powell again pled guilty to seventh degree criminal possession of a

15   controlled substance in violation of § 220.03. He was given a conditional

16   discharge and sentenced to two days’ community service. On October 29, 2004,

17   IJ Brennan granted Powell cancellation of removal after finding that Simpson was

18   not binding, Powell was not charged by the New York State courts as a recidivist,

19   and that Powell’s conviction was not “analogous to a Federal felony, because his

20   status as a recidivist was not actually litigated in the state prosecution for simple

21   possession.” DHS appealed. On October 20, 2006, the BIA sustained DHS’s

22   appeal and ordered Powell removed. Powell petitioned for review, but the parties


                                                7
 1   stipulated to withdraw the petition and remand the case to the BIA for

 2   reconsideration in light of Lopez. After it decided Carachuri-Rosendo and

 3   Thomas, the BIA again sustained the DHS’s appeal in Powell pursuant to Lopez

 4   and Simpson. On March 7, 2008, Powell filed a timely petition for review with

 5   this Court.

 6                                      DISCUSSION

 7          The dispositive question on appeal is whether Alsol’s and Powell’s second

 8   simple possession convictions constitute aggravated felonies under the

 9   Immigration and Nationality Act (“INA”). We hold that a second conviction for

10   simple drug possession under state law is not a felony under the Controlled

11   Substances Act simply because it could have been prosecuted as a recidivist

12   offense under 21 U.S.C. § 844(a). We also clarify that our decision in United

13   States v. Simpson, 319 F.3d 81 (2d Cir. 2002), did not resolve the question in this

14   appeal and that we are not constrained by its observations on the matter. We need

15   not reach the other issues raised on appeal.

16   I.     Jurisdiction and Standard of Review

17          We lack jurisdiction to review any final order of removal against an alien

18   who is deemed deportable by way of conviction for an aggravated felony, except

19   for constitutional claims and questions of law. 8 U.S.C. §§ 1252(a)(2)(C);

20   1252(a)(2)(D). Thus, we retain jurisdiction to decide the question of law

21   regarding whether this jurisdictional bar applies, i.e., whether petitioners’

22   convictions were in fact aggravated felonies. See, e.g., Gertsenshteyn v. U.S.


                                               8
 1   Dep’t of Justice, 544 F.3d 137, 142 (2d Cir. 2008). In general, we defer to the

 2   BIA’s interpretation of the immigration laws, but when the BIA interprets state or

 3   federal laws, as in this case, we review its interpretation de novo. See id. at 143.

 4   II.     Statutory Framework

 5           An alien is ineligible for cancellation of removal if she has been

 6   “convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). The INA

 7   provides, in relevant part, that “[t]he term ‘aggravated felony’ means . . . illicit

 8   trafficking in a controlled substance . . . , including a drug trafficking crime (as

 9   defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). A “drug

10   trafficking crime,” then, is defined in relevant part as “any felony punishable

11   under the Controlled Substances Act (21 U.S.C. [§] 801 et seq.).” 18 U.S.C.

12   § 924(c)(2). Under the CSA, a “felony” is an offense for which “the maximum

13   term of imprisonment authorized” exceeds one year. 18 U.S.C. § 3559(a).

14           In Lopez v. Gonzales, 127 S. Ct. 625 (2006), the Supreme Court held that a

15   state drug offense is analogous to a “felony punishable under the [CSA]” as

16   required by § 924(c)(2), “only if it proscribes conduct punishable as a felony

17   under that federal law.” Id. at 633. The CSA, absent certain exceptions not

18   relevant here, makes it “unlawful for any person knowingly or intentionally to

19   possess a controlled substance.” 21 U.S.C. § 844(a). The maximum term of

20   imprisonment authorized for this offense is “not more than 1 year.” Id.

21   Therefore, a conviction for simple possession of a controlled substance under state

22   law would be punishable as a federal misdemeanor and could not be a “drug


                                                9
 1   trafficking crime” under the CSA nor, in turn, an “aggravated felony” under the

 2   INA.2

 3           However, if a person commits a possession offense “after . . . a prior

 4   conviction for any drug, narcotic, or chemical offense chargeable under the law of

 5   any State, has become final, he shall be sentenced to a term of imprisonment

 6   for . . . not more than 2 years.” 21 U.S.C. § 844(a) (emphases added). Under this

 7   recidivist provision, simple drug possession can be charged as a federal felony if it

 8   was committed after a prior, final, drug conviction. Importantly, the increased

 9   sentence is not automatically available:

10           No person who stands convicted of an offense under this part shall
11           be sentenced to increased punishment by reason of one or more
12           prior convictions, unless before trial, or before entry of a plea of
13           guilty, the United States attorney files an information with the
14           court (and serves a copy of such information on the person or
15           counsel for the person) stating in writing the previous convictions
16           to be relied upon.

17   21 U.S.C. § 851(a)(1) (emphasis added). If the government files the required

18   information, the court, prior to sentencing, must inquire whether the defendant

19   “affirms or denies that he has been previously convicted as alleged in the

20   information.” Id. § 851(b). If a defendant does not admit his prior conviction, the

21   government must prove the existence of the prior conviction beyond a reasonable

22   doubt, id. § 851(c)(1), and a defendant has a limited right to collaterally attack the




             2
               The CSA makes possession of more than five grams of a substance containing cocaine
     base and possession of flunitrazepam felony offenses, 21 U.S.C. § 844(a), but those offenses are
     not at issue here.

                                                10
 1   validity of his prior convection, id. § 851(c)(2).3

 2           The issue before us is whether a second simple state controlled substance

 3   possession misdemeanor conviction constitutes a felony punishable under the

 4   CSA because it could have been prosecuted as a recidivist offense under 21

 5   U.S.C. § 844(a).

 6   III. Lopez v. Gonzales, 127 S. Ct. 625 (2006)
 7
 8           In Lopez v. Gonzales, 127 S. Ct. 625 (2006), the Supreme Court resolved a

 9   circuit split regarding whether a state controlled substances conviction that is

10   classified as a felony by the state but only as a misdemeanor under the CSA was

11   an “aggravated felony” pursuant to 8 U.S.C. § 1101(a)(43)(B). Several circuit

12   courts had held that a state conviction constitutes an aggravated felony if it is (1)

13   punishable under the CSA and (2) is a “felony under either state or federal law.”

14   See, e.g., Lopez v. Gonzales, 417 F.3d 934, 937 (8th Cir. 2005), rev’d, 127 S. Ct.

15   625 (2006). The Court rejected this rationale, holding that whether the state

16   classifies the offense as a felony is irrelevant. Instead, “a state offense constitutes

17   a ‘felony punishable under the Controlled Substances Act’ only if it proscribes

18   conduct punishable as a felony under that federal law.” Lopez, 127 S. Ct. at 633

19   (2006) (emphasis added). This has become known as the “hypothetical federal

20   felony approach.” In rejecting the approach that would allow a simple possession


             3
              Similarly, under New York law, an enhancement for a second possession offense is not
     automatically available. A second felony drug offender is subject to certain minimum sentences
     based on the underlying felony, see New York Penal Law §§ 70.70(3)-(4), but this enhancement
     requires that the defendant be afforded various procedural safeguards similar to those outlined by
     21 U.S.C. § 851, see New York Criminal Procedural Law § 400.21 (outlining procedure).

                                               11
 1   offense to qualify as a “drug trafficking crime” simply because the state chose to

 2   classify it as a felony, the Supreme Court noted “its incoherence with any

 3   commonsense conception of ‘illicit trafficking,’ the term ultimately being

 4   defined.” Id. at 629-30. The Court reasoned that, because the statute did not

 5   define the term, the everyday understanding of trafficking should hold, and the

 6   ordinary understanding of trafficking did not connote simple possession. Id. at

 7   630.

 8   IV. In re Carachuri-Rosendo, 24 I. & N. Dec. 382 (B.I.A. 2007) (en banc)

 9          In December 2007, after Lopez, the BIA held that a second drug

10   possession conviction is not an aggravated felony conviction “unless the alien’s

11   status as a recidivist drug offender was either admitted by the alien or determined

12   by a judge or jury in connection with a prosecution for [the second] offense.” In

13   re Carachuri-Rosendo, 24 I. & N. Dec. 382, 394 (B.I.A. 2007) (en banc), appeal

14   docketed, Carachuri-Rosendo v. Mukasey, No. 07-61006 (5th Cir. Dec. 24, 2007);

15   accord In re Thomas, 24 I. & N. Dec. 416, 421 (B.I.A. 2007). The BIA held that a

16   second drug possession offense is not punishable as a federal felony, as required

17   by Lopez, unless it “corresponds in a meaningful way to the essential requirements

18   that must be met before a felony sentence can be imposed under Federal law on

19   the basis of recidivism.” Carachuri-Rosendo, 24 I. & N. Dec. at 390. In light of

20   21 U.S.C. § 851, the BIA held that meaningful correspondence requires that “the

21   State successfully sought to impose punishment for a recidivist drug conviction.”




                                             12
 1   Id. at 391.4

 2           The BIA acknowledged that its interpretation of criminal statutes (as

 3   opposed to the INA) is “not entitled to deference” by the courts. Carachuri-

 4   Rosendo, 24 I. & N. Dec. at 385; see also Gertsenshteyn v. U.S. Dep’t of Justice,

 5   544 F.3d 137, 143 (2d Cir. 2008). Therefore, the BIA held that it would apply

 6   the Carachuri-Rosendo rule only absent controlling countervailing circuit

 7   precedent. See Carachuri-Rosendo, 24 I. & N. Dec. at 391; accord Thomas, 24 I.

 8   & N. Dec. at 421. In Carachuri-Rosendo, the BIA found that under controlling

 9   Fifth Circuit precedent a second possession offense is considered a felony under

10   federal law if it “‘could have been punished under § 844(a).’” Carachuri-

11   Rosendo, 24 I. & N. Dec. at 386 (quoting United States v. Sanchez-Villalobos, 412

12   F.3d 572, 577 (5th Cir. 2005), cert. denied, 546 U.S. 1137 (2006)). While noting

13   that “Lopez points strongly toward a different construction of the statute,” and that

14   Lopez “may require a reexamination of prior circuit law,” the BIA concluded that

15   “it [was] not for this Board to declare that Fifth Circuit precedent has been

16   implicitly overruled by the Supreme Court.” Id. at 387-88.

17           The BIA then applied the Carachuri-Rosendo rule in a separate case,

18   holding that petitioner’s second possession offense did not correspond to “the

19   Federal felony of ‘recidivist possession.’” Thomas, 24 I. & N. Dec. at 421.



             4
              Apparently, DHS conceded that “that a conviction arising in a State that has
     drug-specific recidivism laws cannot be deemed a State-law counterpart to ‘recidivist possession’
     unless the State actually used those laws to prosecute the respondent.” Carachuri-Rosendo, 24 I.
     & N. Dec. at 391.

                                              13
 1          [B]ecause [Thomas’s] marijuana possession conviction did not
 2          result from a State proceeding in which his status as a recidivist
 3          drug offender was either admitted or determined by a judge or jury,
 4          . . . [it did] not qualify as a conviction for a “drug trafficking
 5          crime” under 18 U.S.C. § 924(c)(2) or an “aggravated felony”
 6          under section 101(a)(43)(B) of the [INA], absent controlling
 7          [circuit] precedent to the contrary.”
 8
 9   Id. at 421-22.
10
11   V. Circuit Split

12          As the BIA recognized, see In re Carachuri-Rosendo, 24 I. & N. Dec. 382,

13   385-86 (B.I.A. 2007) (en banc), appeal docketed, Carachuri-Rosendo v. Mukasey,

14   No. 07-61006 (5th Cir. Dec. 24, 2007), our sister circuits have split on whether a

15   second simple possession conviction is an offense punishable as a recidivist

16   offense under 21 U.S.C. § 844(a), thus making it an aggravated felony for

17   immigration purposes. The First, Third, and Sixth Circuits agree that such a

18   conviction does not automatically qualify as the federal felony of recidivist

19   possession.5 See Berhe v. Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006); Steele v.

20   Blackman, 236 F.3d 130, 137-38 (3d Cir. 2001); Rashid v. Mukasey, 531 F.3d

21   438, 442-48 (6th Cir. 2008). In Rashid, the most recent of these, the Sixth Circuit

22   explained that “[t]he ultimate problem” with the government’s argument that two



            5
               Prior to Lopez, the Ninth Circuit also did not count a subsequent possession offense as
     an aggravated felony, but had a unique way of arriving at this conclusion. The Ninth Circuit held
     that an adjudicator cannot consider recidivist sentencing enhancements at all when seeking to
     determine whether a state offense constitutes an aggravated felony. See Ferreira v. Ashcroft, 382
     F.3d 1045, 1050 (9th Cir. 2004). The Supreme Court has now reversed the Ninth Circuit on this
     front in its interpretation of the Armed Career Criminal Act, holding that the term “maximum
     term of imprisonment . . . prescribed by law” includes any recidivist enhancements. United
     States v. Rodriquez, 128 S. Ct. 1783, 1787-93 (2008).

                                              14
 1   state misdemeanor convictions for marijuana possession morph into an

 2   “aggravated felony” is that the approach adds a “hypothetical to a hypothetical.”

 3   531 F.3d at 445 (internal quotation marks omitted). The Sixth Circuit held that:

 4          The first and only hypothetical that should be considered under the
 5          “hypothetical federal felony approach” is whether the crime that an
 6          individual was actually convicted of would be a felony under
 7          federal law. But by looking to facts not at issue in the crime of
 8          conviction in order to determine whether an individual could have
 9          been charged with a federal felony, our sister circuits, the IJ, and
10          the BIA have considered an impermissible second hypothetical.
11          We conclude that inclusion of the word “hypothetical” in the
12          “hypothetical federal felony” approach does not provide the
13          government with free reign to make ex-post determinations of what
14          federal crimes an individual could hypothetically have been
15          charged with where, as here, a prior drug-possession conviction
16          was not at issue in the prosecution of the subsequent
17          drug-possession offense.
18
19   Id. at 445 (citation omitted). See also Fernandez v. Mukasey, Nos. 06-3476,

20   06-3987, 06-3994, __ F.3d __, 2008 WL 4193005, at *12 (7th Cir. Sept. 15, 2008)

21   (Rovner, J., dissenting) (noting that use of the term “hypothetical” in the

22   “hypothetical federal felony approach” does not “allow an immigration court to

23   determine that conduct for which a defendant was never charged and never

24   convicted would have been a felony if the government had, hypothetically,

25   prosecuted the defendant under federal law.”).

26          On the other hand, the Fifth and Seventh Circuits have held in the

27   sentencing context, where a conviction for an “aggravated felony,” which is

28   defined the same way as it is under the INA, see U.S.S.G. § 2L1.2 cmt. n.3(A),

29   may result in an eight-level enhancement, see U.S.S.G. § 2L1.2(b)(1)(C), that a



                                              15
 1   second simple possession offense can be considered a federal felony because it

 2   could have been prosecuted as a recidivist offense under 21 U.S.C. § 844(a). See

 3   United States v. Cepeda-Rios, 530 F.3d 333, 334-36 (5th Cir. 2008) (per curiam)

 4   (following United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir.

 5   2005)); United States v. Pacheco-Diaz, 506 F.3d 545, 548-50 (7th Cir. 2007),

 6   reh’g denied, 513 F.3d 776, 778-79 (7th Cir. 2008) (per curiam). Recently, over a

 7   dissent, the Seventh Circuit found Pacheco-Diaz’s reasoning to be controlling in

 8   the immigration context and reaffirmed its disagreement with the BIA’s

 9   interpretation in Carachuri-Rosendo. Fernandez, __ F.3d __, 2008 WL 4193005,

10   at *3-7. The court held that “[t]he question is whether the petitioners would have

11   been subject to the increased penalty for having committed a prior drug offense

12   had they been charged in federal court.” Id. at *8. Finding that recidivist charges

13   could have been brought, the court found that petitioner had committed an

14   aggravated felony. Id.

15   VI. Analysis

16          A.      “Aggravated Felony”
17
18          We now join the First, Third, and Sixth Circuits in holding that a second

19   simple drug possession conviction is not an “aggravated felony” as that term is

20   defined in 8 U.S.C. § 1101(a)(43)(B). As noted, under Lopez, “a state offense

21   constitutes a ‘felony punishable under the Controlled Substances Act’ only if it

22   proscribes conduct punishable as a felony under that federal law.” 127 S. Ct. 625,

23   633 (2006). Lopez, however, does not stand for the proposition that a state


                                             16
 1   offense is a felony punishable under the CSA if it could have been charged as a

 2   recidivist state offense that would then be punishable as a federal felony; rather,

 3   Lopez stands for the proposition that a state offense of conviction that is

 4   punishable as a federal felony is an aggravated felony.6

 5          As we recently emphasized, “the INA premises removability not on what

 6   an alien has done, or may have done, or is likely to do in the future (tempting as it

 7   may be to consider those factors), but on what he or she has been formally

 8   convicted of in a court of law.” Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d

 9   137, 145 (2d Cir. 2008); see also Rashid v. Mukasey, 531 F.3d 438, 445 (6th Cir.

10   2008); Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 125 (2d

11   Cir. 2007) (The INA renders “removable an alien who has been convicted of an

12   aggravated felony, not one who has committed an aggravated felony.”) (emphases



            6
               In Lopez, the Court noted that although it is counterintuitive to define
     simple possession as “drug trafficking,” certain “state possession crimes that
     correspond to felony violations of [the CSA], such as . . . recidivist possession,
     see 21 U.S.C. § 844(a), 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).” Lopez, 127 S. Ct. at 630 n.6.
     However, the fact that some state offenses may correspond with a “recidivist
     possession” offense does not resolve the issue in this case. See United States v.
     Pacheco-Diaz, 513 F.3d 776, 779 (“[T]he footnote is elliptical and dictum to
     boot.”). Footnote six in Lopez indicates that a conviction for a state possession
     crime that corresponds to felony recidivist possession falls within the definition of
     an aggravated felony despite the absence of trafficking, but it does not “inexorably
     dictate” that two state misdemeanor possession convictions automatically qualify
     as the aggravated felony of recidivist possession under federal law. Rashid, 531
     F.3d at 445; see also Carachuri-Rosendo, 24 I. & N. Dec. at 390 (“[A]ll that can
     reasonably be discerned from this footnote is that 21 U.S.C. § 844(a) defines
     ‘recidivist possession’ as ‘an offense,’ constituting a ‘felony violation’ of the
     Federal drug laws, that ‘corresponds’ to some ‘state possession crimes.’” (quoting
     Lopez, 127 S. Ct. at 630 n.6) (emphasis added)).

                                              17
 1   added and internal quotation marks omitted). The requirement that an alien be

 2   convicted of a removable offense before suffering the consequences under

 3   immigration law is precisely what Lopez requires. Under Lopez, an offense that

 4   could have been prosecuted -- not necessarily resulting in conviction -- as a

 5   recidivist offense is not an offense punishable as a federal felony. The INA and

 6   Lopez require an actual conviction for an offense that proscribes conduct that is

 7   punishable as a federal felony, not a conviction that could have been obtained if it

 8   had been prosecuted. See 8 U.S.C. § 1227(a)(2)(A)(iii) (rendering deportable an

 9   alien who has been “convicted of an aggravated felony”); 8 U.S.C. § 1229b(a)(3)

10   (stating that the Attorney General may cancel removal if, inter alia, the alien “has

11   not been convicted of any aggravated felony”).

12          In Lopez, the Supreme Court noted that some state penal codes “graduate

13   drug possession offenses from misdemeanor to felony depending on quantity,”

14   while federal law did not, treating “possession alone as a misdemeanor whatever

15   the amount.” Lopez, 127 S. Ct. at 633. However, possession with intent to

16   distribute could be a federal felony when the amount is large. Id. Thus, an alien

17   who was convicted of a state felony for possession of large quantities of drugs

18   might “escape the aggravated felony designation simply for want of a federal

19   felony defined as possessing a substantial amount.” Id. The Supreme Court

20   recognized that unless the underlying state conviction included reference to the

21   alien’s intent to distribute, a state-law felony for possession of a large amount of

22   drugs could not qualify him as an aggravated felon, even if that charge could have


                                              18
 1   been prosecuted as the federal felony of “possession with intent to distribute.”

 2           Our “categorical approach” supports the holding that an actual conviction

 3   is needed. Under the categorical approach, when determining whether an alien is

 4   removable, we “look to the elements and the nature of the [state] offense of

 5   conviction, rather than to the particular facts relating to [the] petitioner’s crime.”

 6   Dulal-Whiteway, 501 F.3d at 121 (citation and internal quotation marks omitted).

 7   An alien is not removable unless the minimum criminal conduct necessary to

 8   sustain a conviction under the state statute in question amounts to a removable

 9   offense. See id.; see also Gertsenshteyn, 544 F.3d at 143. The categorical

10   approach was adopted to ensure that the government is held to its burden to prove

11   “the existence of a qualifying conviction.” Id. at 146. The “whole basis” for the

12   categorical approach “is that what the alien was convicted of determines whether

13   the felony is an aggravated one and not (unless it is needed to convict) the

14   particular manner in which the crime was committed.” Id.

15           This case does not involve a simple application of the categorical

16   approach, however, because, as the BIA recognized, while most offenses are

17   defined by their elements, recidivist possession is “an amalgam of elements,

18   substantive sentencing factors, and procedural safeguards.” Carachuri-Rosendo,

19   24 I. & N. Dec. at 389. Thus, the Seventh Circuit found that because the

20   recidivist enhancement available here is not an element of the crime,7 a broad


            7
              In reaching this conclusion, the Seventh Circuit relied on the Supreme
     Court’s observation in Almendarez-Torres v. United States, 523 U.S. 224, 244
     (1998) that “Congress . . . has never, to our knowledge, made a defendant’s

                                               19
 1   inquiry into the petitioner’s underlying conduct is permitted. See Fernandez v.

 2   Mukasey, Nos. 06-3476, 06-3987, 06-3994, __ F.3d __, 2008 WL 4193005, at *7,

 3   *10 (7th Cir. Sept. 15, 2008). However, nothing in the applicable statutes or

 4   Lopez allows the BIA to abandon the requirement that petitioner’s status as an

 5   aggravated felon be based on an actual conviction simply because the categorical

 6   approach may not easily fit this situation. This is why we part ways with the

 7   Seventh Circuit. The Seventh Circuit’s decision, we believe, focuses improperly

 8   on “the conduct reflected in the state convictions, as opposed to the precise state

 9   crime charged.” Fernandez, __ F.3d __, 2008 WL 4193005, at *5 (citation

10   omitted).

11          The BIA concluded that, in order for a state misdemeanor offense to be

12   treated as a recidivist offense and thus a federal felony under the CSA, the alien’s

13   “status as a recidivist drug possessor must have been admitted or determined by a



     recidivism an element of an offense where the conduct proscribed is otherwise
     unlawful.” There is some question as to whether Almendarez-Torres is still good
     law. See Apprendi v. New Jersey, 530 U.S. 466, 489 (2000) (“[I]t is arguable that
     Almendarez-Torres was wrongly decided . . . .”). Nonetheless, the Supreme Court
     has not disturbed Almendarez-Torres since Apprendi, and has recently reaffirmed
     it. James v. United States, 127 S. Ct. 1586, 1600 n.8 (2007) (reaffirming
     Almendarez-Torres, and holding that “prior convictions need not be treated as an
     element of the offense for Sixth Amendment purposes”).
              However, the relevant statutes give the defendant a range of procedural
     safeguards, such as the right to a separate proceeding to litigate recidivism and the
     ability to raise certain collateral challenges, see 21 U.S.C. § 851, that arguably
     make the recidivist enhancement more than an element. The fact that a defendant
     is entitled to proof beyond a reasonable doubt suggests that recidivism might be
     analytically closer to an element of the offense than the Seventh Circuit suggests.
     Moreover, in this context, proof beyond a reasonable doubt is required by statute
     regardless of what the Sixth Amendment may require. See 21 U.S.C. § 851(c)(1).

                                              20
 1   court or jury within the prosecution for the second drug crime.” Carachuri-

 2   Rosendo, 24 I. & N. Dec. at 391 (emphasis added). We believe that the BIA’s

 3   holding in Carachuri-Rosendo best serves the requirement that petitioner’s status

 4   as an aggravated felon be based on an actual conviction. Under this approach, the

 5   focus is properly on the state conviction, not the circumstances of the underlying

 6   conduct. Though distinct, this is not inconsistent with our categorical approach,

 7   as they both serve the same end. The proper focus is on the conduct proscribed in

 8   the underlying conviction, not the general conduct reflected in the conviction.8

 9   Requiring that petitioner be actually convicted of an offense that is analogous to

10   “recidivist possession” does not rely on the state’s classification of the offense as

11   a felony or misdemeanor. We simply hold that, in these particular and unique

12   circumstances, whatever petitioner was convicted of under state law must

13   correspond with the crime of recidivist possession under the CSA. As Judge

14   Rovner explained, “petitioners . . . would have been subject to the increased

15   penalty only if they had been charged as repeat offenders under 21 U.S.C. § 851.

16   And that is a big ‘if.’ After all, they were not charged as repeat offenders in state

17   court.” Fernandez, __ F.3d __, 2008 WL 4193005, at *14 (Rovner, J.,

18   dissenting).


            8
              The modified categorical approach makes a limited exception to this
     general rule, permitting reference to the record of conviction only when an alien is
     convicted under a statute that encompasses acts that both would and would not
     render him removable, for the limited purpose of determining whether he was
     convicted under the branch of the statute permitting removal. See, e.g.,
     Gertsenshteyn, 544 F.3d at 143. Thus, even under the modified categorical
     approach, the focus remains on the actual offense of conviction.


                                               21
 1          We note that the BIA’s reasoning in Carachuri-Rosendo avoids several

 2   anomalies. Under the logic of the government’s “would have” test, a federal

 3   misdemeanor would be considered a federal felony on the ground that the

 4   defendant could have been prosecuted as a recidivist. Similarly, a state possession

 5   conviction would be considered a federal recidivist felony even when the State

 6   explicitly elected not to pursue a recidivist conviction. Such outcomes would

 7   intrude on prosecutorial discretion to make charging decisions, specifically

 8   undermining the State’s ability to negotiate plea agreements with defendants who

 9   would admit guilt to drug possession with the understanding that their criminal

10   records would reflect misdemeanor and not felony convictions.

11          In addition, if one who was not convicted as a recidivist nonetheless faced

12   removal as a recidivist, the IJ would have to determine, for the first time, that an

13   alien was a recidivist. This is inappropriate not only because of the IJ’s lack of

14   expertise in the criminal law but also because the alien cannot challenge the

15   validity of his prior conviction in the removal proceedings. See Taylor v. United

16   States, 396 F.3d 1322, 1330 (11th Cir. 2005) (per curiam) (“[A]n alien may not

17   collaterally attack a state court conviction in deportation proceedings or petitions

18   for review of BIA decisions.”); cf. Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d

19   Cir. 2004) (“Collateral attacks are not available in a habeas petition challenging

20   the BIA’s removal decision.”), cert. denied, 546 U.S. 1036 (2005). The BIA itself

21   has recognized “the problems in having a ‘recidivist offense’ be identified for the

22   first time in removal proceedings.” Carachuri-Rosendo, 24 I. & N. Dec. at 390.



                                              22
 1          Thus, we hold that the fact of recidivism must be reflected in the

 2   conviction the government seeks to classify as an aggravated felony, not merely in

 3   petitioner’s underlying conduct. See id. at 391. Where, as here, petitioners were

 4   convicted of simple possession of a controlled substance and they did not either

 5   admit to their status as recidivists or have that status determined by a court or jury

 6   within the prosecution for the second possession offense, petitioners were not

 7   convicted of an aggravated felony.

 8          B.      United States v. Simpson, 319 F.3d 81 (2d Cir. 2002)

 9          Finally, we now clarify that Simpson’s discussion of whether a simple

10   possession conviction constitutes an aggravated felony because of a prior drug

11   conviction was dictum, and that, contrary to the BIA’s findings below, Simpson

12   does not control in these proceedings.

13           At issue in Simpson was whether the District Court erred in imposing an

14   eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) for a defendant guilty of

15   illegally reentering after being convicted of an aggravated felony, instead of the

16   four-level enhancement under U.S.S.G. § 2L1.2(b)(1)(E) for a defendant with

17   “three or more convictions for misdemeanors that are crimes of violence or drug

18   trafficking offenses.” See Simpson, 319 F.3d at 83. Prior to being deported,

19   Simpson had been convicted three times of criminal sale of marijuana in the

20   fourth degree, a misdemeanor under New York law, and once for possession of

21   marijuana in the fourth degree, also a misdemeanor under New York law. See id.

22   at 83-84. Three years later, Simpson illegally returned to the United States.



                                               23
 1          Simpson was arrested and pleaded guilty “to illegally reentering the United

 2   States as an aggravated felon,” in violation of 8 U.S.C. §§ 1326(a), (b)(2). Id. at

 3   82, 84. Simpson thus conceded that he had previously been convicted of an

 4   aggravated felony. He instead argued that the four-level enhancement under

 5   U.S.S.G. § 2L1.2(b)(1)(E) ought to apply instead of the eight-level enhancement

 6   given for an aggravated felony conviction under U.S.S.G. § 2L1.2(b)(1)(c).

 7   Simpson, 319 F.3d at 83, 85. He also argued for application of the rule of lenity

 8   because the Guidelines were ambiguous. Id. at 86.

 9          We held that Simpson’s argument was “without merit” because both

10   sentence enhancements were applicable, and under the applicable Guideline it was

11   clear that “the District Court was required to apply the higher of the two.” Id. at

12   85, 87. In holding that Simpson qualified for the eight-level enhancement, we

13   also explained that “under the CSA the sale of marijuana is a felony offense that

14   carries a maximum term of five years’ imprisonment . . . .” Id. at 85 (citing 21

15   U.S.C. § 841(b)(1)(D)). Accordingly, “each of Simpson’s three prior convictions

16   for Criminal Sale of Marijuana in the Fourth Degree under New York law were

17   ‘aggravated felonies’ for purposes of sentencing under the Guidelines because,

18   under the CSA, all three are punishable as felonies.” Id. We further observed that

19   Simpson’s conviction for marijuana possession also qualified as “an aggravated

20   felony within the meaning of the Guidelines, because that offense would have

21   been punishable as a felony under the CSA” in light of Simpson’s prior drug

22   convictions. Id. at 85-86 (citing 21 U.S.C. § 844(a)).



                                              24
 1          Contrary to the BIA’s interpretation, this discussion of whether the simple

 2   possession conviction constitutes an aggravated felony because of prior drug

 3   convictions was dictum. The issue in Simpson was not whether Simpson had

 4   been convicted of an aggravated felony; indeed, Simpson pleaded guilty to illegal

 5   reentry as an aggravated felon. What we confronted in Simpson was whether the

 6   District Court erred in applying the greater of two applicable enhancements under

 7   U.S.S.G. § 2L1.2(b)(1), whether the rule of lenity applies to the Guidelines, and if

 8   so, whether the rule of lenity should have been applied under the circumstances

 9   presented. The discussion of recidivist possession was not necessary to the

10   analysis because Simpson admitted he was an aggravated felon and the three

11   marijuana-sale convictions by themselves rendered the eight-level enhancement

12   for an aggravated felony applicable three times over. Thus, the discussion of

13   Simpson’s possession conviction was not necessary to our holding and dictum.9

14   See Cal. Pub. Employees’ Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 106 n.19 (2d

15   Cir. 2004), cert. denied, 543 U.S. 1080 (2005); see also Pierre N. Leval, Judging

16   Under the Constitution: Dicta about Dicta, 81 N.Y.U. L. REV . 1249, 1257 (2006)

17   (explaining that a proposition that has no “functional role in compelling the

18   judgment” is superfluous and dicta, and noting that if we “accept dictum uttered in



            9
              We note that we expressly limited our opinion in Simpson to the sentencing context.
     See Simpson, 319 F.3d at 86 & n.7. We need not decide whether, as the BIA reasoned,
     “aggravated felony” must have the same meaning in immigration cases as it has in sentencing
     because, for the reasons stated above, the relevant portion of Simpson is dictum. Moreover, we
     express no view as to how a district court, mindful that the Guidelines are now advisory rather
     than mandatory, may factor past criminal conduct not leading to a recidivist felony conviction
     into a sentencing determination.

                                              25
1   a previous opinion as if it were binding law, which governs our subsequent

2   adjudication . . . we fail to discharge our responsibility to deliberate on and decide

3   the question which needs to be decided”).

4                                     CONCLUSION

5          We hold that a second simple drug possession conviction is not an

6   aggravated felony for immigration purposes and that Simpson’s observation on

7   recidivism does not control the issue. The petitions for review are GRANTED,

8   the decisions of the BIA are VACATED, and these cases are REMANDED for

9   proceedings consistent with this opinion.




                                             26
