                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 08a0225p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                   X
                                       Petitioner, -
 ZIA UL ISLAM RASHID,
                                                    -
                                                    -
                                                    -
                                                       No. 06-4270
          v.
                                                    ,
                                                     >
 MICHAEL B. MUKASEY, United States Attorney         -
                                                    -
                                     Respondent. -
 General,

                                                    -
                                                   N
                           On Petition for Review from the
                            Board of Immigration Appeals.
                                   No. A43 964 625.
                                      Argued: June 4, 2008
                               Decided and Filed: June 26, 2008
                   Before: MERRITT, CLAY, and GILMAN, Circuit Judges.
                                      _________________
                                           COUNSEL
ARGUED: Maris J. Liss, GEORGE P. MANN & ASSOCIATES, Farmington Hills, Michigan, for
Petitioner. Terri Leon-Benner, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: George P. Mann, GEORGE P. MANN & ASSOCIATES,
Farmington Hills, Michigan, for Petitioner. Terri Leon-Benner, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent.
                                      _________________
                                          OPINION
                                      _________________
        RONALD LEE GILMAN, Circuit Judge. This case presents an important issue at the
intersection of immigration law and criminal law. Zia Ul Islam Rashid, a legal permanent resident,
was twice convicted of misdemeanor marijuana possession in the state courts of Michigan, first in
2000 and again in 2005. He was subsequently charged by the Department of Homeland Security
(DHS) with removability under the Immigration and Nationality Act (INA). Rashid conceded that
he was removable because of his convictions for possessing a controlled substance, but he applied
for cancellation of removal.
       An Immigration Judge (IJ) determined that Rashid’s two state misdemeanor convictions
combined to constitute an aggravated felony under federal law, thereby rendering him ineligible for
cancellation of removal. The BIA affirmed. He now appeals to this court, arguing that both the IJ

                                                1
No. 06-4270                 Rashid v. Mukasey                                                  Page 2


and the BIA erred as a matter of law in concluding that his two drug-possession offenses together
qualify as an aggravated felony under federal law. For the reasons set forth below, we REVERSE
the judgment of the BIA and REMAND the case for further proceedings consistent with this
opinion.
                                        I. BACKGROUND
A.     Factual background
         Rashid is a native and citizen of Pakistan. He became a legal permanent resident of the
United States in November of 1993. In May of 2000, Rashid pled guilty in a Michigan state court
to the criminal possession of a small quantity of marijuana, a misdemeanor offense. Five years later,
in October of 2005, Rashid again pled guilty to the misdemeanor offense of marijuana possession.
        DHS initiated removal proceedings against Rashid following his second conviction.
According to DHS, Rashid was removable pursuant to § 237(a)(2)(A)(iii) of the INA (8 U.S.C.
§ 1227(a)(2)(A)(iii)), because he had in effect been convicted of an aggravated felony as defined by
§ 101(a)(43)(B) of the INA (8 U.S.C. § 1101(a)(43)(B)). Rashid was also charged with being
subject to remove pursuant to § 237(a)(2)(B)(i) of the INA (8 U.S.C. § 1227(a)(2)(B)(i)), because
he had been convicted of violating a law relating to a controlled substance on more than one
occasion.
B.     Procedural background
        In March of 2006, Rashid conceded that he was removable on the basis of the controlled-
substance offenses, but did not agree with the applicability of the aggravated-felony charge. He
applied for cancellation of removal under § 240A(a) of the INA (8 U.S.C. § 1229b(a)). The IJ
concluded that Rashid was ineligible for cancellation of removal because he had in effect committed
an aggravated felony under federal law. Specifically, the IJ determined that the federal law
governing “recidivist possession” rendered Rashid’s second drug-possession conviction a felony
drug-trafficking offense, despite the fact that both of the state convictions were misdemeanors and
neither involved drug trafficking as the phrase is ordinarily understood. The IJ relied on this court’s
decision in United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. 2005), in reaching this
conclusion.
         Rashid appealed to the BIA, arguing that the IJ erred in relying on Palacios-Suarez and in
concluding that Rashid was ineligible for cancellation of removal. The BIA affirmed the decision
of the IJ and, like the IJ, specifically relied on Palacios-Suarez. Rashid was subsequently deported
and is now living in Pakistan. This timely appeal followed.
                                          II. ANALYSIS
A.     Standard of review
        Because the BIA adopted the IJ’s decision with additional commentary, we review the
decision of the IJ, as supplemented by the BIA, as the final administrative order. Gilaj v. Gonzales,
408 F.3d 275, 283 (6th Cir. 2005). Questions of law involving immigration proceedings are
reviewed de novo. Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir. 2004).
B.     Multiple drug-possession offenses as an “aggravated felony” under 8 U.S.C.
       § 1227(a)(2)(A)(iii)
       At issue in this case is whether Rashid’s two state misdemeanor convictions for marijuana
possession, taken together, morph into an “aggravated felony” under the INA. This counterintuitive
No. 06-4270                 Rashid v. Mukasey                                                   Page 3


result is possible because of multiple layers of definitions under the INA and the Controlled
Substances Act (CSA), 21 U.S.C. §§ 801-971. Section 1101(a)(43)(B) of the INA (8 U.S.C.
§ 1101(a)(43)(B)) includes “drug trafficking crime[s] (as defined in [§] 924(c) of [T]itle 18)” as
aggravated felonies. A “drug trafficking crime,” in turn, is defined as “any felony punishable under
the [CSA].” 18 U.S.C. § 924(c)(2). Finally, § 844(a) of the CSA (21 U.S.C. § 844(a)) has the effect
of treating anyone convicted as a recidivist drug offender as a felon, even if either or both of the
offenses in isolation were only misdemeanor convictions.
        The IJ and the BIA both concluded that Rashid’s two marijuana convictions, taken together,
constituted the aggravated felony of recidivist possession, in violation of 21 U.S.C. § 844(a). In
other words, the IJ and the BIA determined that Rashid had committed the crime of recidivist
possession, an aggravated felony under the INA because it is a felony punishable under the CSA and
thus a drug-trafficking crime under 18 U.S.C. § 924(c)(2). This means that Rashid was deemed
ineligible for cancellation of removal because an immigrant who has been convicted of an
aggravated felony is ineligible for such relief pursuant to § 1229b(a)(3) of the INA (8 U.S.C.
§ 1229b(a)(3)).
        Rashid concedes that he is removable under 8 U.S.C. § 1227(a)(2)(B)(i) because he was
convicted of two state drug-possession offenses, and has thus “been convicted of a violation of
. . . any law . . . relating to a controlled substance . . . , other than a single offense involving
possession for one’s own use of 30 grams or less of marijuana.” Id. (emphasis added). He argues,
however, that he has not committed an aggravated felony within the meaning of the INA and is
therefore still eligible for cancellation of removal. Specifically, Rashid claims that the IJ and the
BIA improperly concluded that his two state drug-possession convictions qualify as recidivist
possession.
C.     The government’s motion to remand
        The government has argued that this case should be remanded in order for the BIA to apply
recent decisions that have refined the BIA’s approach to treating state drug-possession offenses as
aggravated felonies. Specifically, the government cites Matter of Carachuri-Rosendo, 24 I. & N.
Dec. 382 (BIA 2007), and Matter of Thomas, 24 I. & N. Dec. 416 (BIA 2007). In Carachuri-
Rosendo, the BIA explicitly concluded that
       absent controlling [circuit] authority regarding the “recidivist possession” issue, an
       alien’s State conviction for simple possession of a controlled substance will not be
       considered an aggravated felony conviction on the basis of recidivism unless the
       alien’s status as a recidivist drug offender was either admitted by the alien or
       determined by a judge or jury in connection with a prosecution for that simple
       possession offense.
24 I. & N. at 394. The BIA applied Carachuri-Rosendo in Thomas and concluded that because the
Eleventh Circuit did not have any controlling precedent with respect to the recidivist-possession
issue, the BIA had to determine whether there was proof that the immigrant had either admitted his
status as a recidivist drug offender or whether his status as such had been determined by a judge or
jury. 24 I. & N. Dec. at 421.
        At the time the BIA issued its opinion in Carachuri-Rosendo, however, it noted that seven
circuits, including the Sixth Circuit, have “issued precedents deciding whether, and under what
circumstances, a State offense of simple possession of a controlled substance qualifies as an
aggravated felony based on its correspondence to the Federal felony of ‘recidivist possession.’” 24
I. & N. at 385. Notably, the Eleventh Circuit was not among the seven circuits identified by the
BIA. The decision in Thomas is thus not applicable to Rashid’s case, given the BIA’s reliance on
No. 06-4270                 Rashid v. Mukasey                                                  Page 4


United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. 2005), discussed in detail below, as the
controlling Sixth Circuit precedent on this issue.
        Rashid in fact points out that even after the decision in Carachuri-Rosendo, the BIA has
issued conflicting decisions as to its interpretation of Palacios-Suarez. He first cites Matter of
Escot-Miranda, File No. A45 123 036, 2008 WL 1734648 (BIA Mar. 24, 2008), where the BIA
concluded that the Sixth Circuit “is agnostic on [the] central question” of “whether a State simple
possession offense that otherwise conforms to the requirements of 21 U.S.C. § 844(a) but that was
not prosecuted under State recidivism laws can be treated as a ‘counterpart’ of the Federal felony
of recidivist possession.” Rashid then notes that only five days prior to the decision in Escot-
Miranda, the BIA concluded in Matter of Guzman-Gonzalez, File No. A43 746 142 (BIA Mar. 19,
2008), that “[i]n order for a second misdemeanor drug possession conviction to qualify as an
aggravated felony in the Sixth Circuit[,] . . . controlling precedent only requires that the conviction
occur after a first such conviction becomes final.” This causes considerable uncertainty as to what
result the BIA would reach if Rashid’s case were remanded to it for an opportunity to apply its
recent Carachuri-Rosendo approach to our Palacios-Suarez decision.
       Moreover, although this case presents an issue that will impact both immigration law and
criminal-sentencing law, this court has previously addressed the overlap between the two in this very
context and “decline[d] to adopt separate interpretations of the same phrase for the immigration and
sentencing cases.” Palacios-Suarez, 418 F.3d at 697. Given that Carachuri-Rosendo dictates
deference to circuit precedent, and given the BIA’s apparent uncertainty about the existence of such
precedent in this circuit, Rashid’s case presents us with the opportunity to explicitly define our
approach to the treatment of multiple state drug-possession offenses as a potential aggravated felony
under the INA. We therefore deny the government’s request for a remand and turn to the merits of
Rashid’s argument.
D.     The merits of Rashid’s argument
        Over the years, two approaches developed for the treatment of state misdemeanor drug
offenses in the immigration context. Some courts applied the so-called “state felony” or
“Guidelines” approach that originated in the context of cases arising under the federal Sentencing
Guidelines. This approach treated a state drug-possession conviction as an aggravated felony if the
underlying conduct was punishable under the CSA and the conviction was classified as a felony
under either federal or state law. See, e.g., United States v. Hernandez-Avalos, 251 F.3d 505, 508-10
(5th Cir. 2001).
         The more prevalent approach was the so-called “hypothetical federal felony” rule applied
by this court in Palacios-Suarez, 418 F.3d at 695. Under this approach, the phrase “any felony
punishable under the CSA” is read “to mean any conviction punishable as a felony under the CSA.”
Id. (internal quotation marks omitted) (emphasis in original). “Thus, a state felony drug possession
conviction (not involving any element of drug trafficking) that would only be punishable as a federal
misdemeanor would not constitute an aggravated felony under § 1101(a)(43)(B).” Id. (internal
quotation marks omitted).
        The Supreme Court, in Lopez v. Gonzales, 127 S. Ct. 625 (2006), resolved this conflict by
explicitly holding that “a state offense constitutes a ‘felony punishable under the Controlled
Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Id. at
633. At issue in Lopez was whether “conduct made a felony under state law but a misdemeanor
under the Controlled Substances Act” could nonetheless qualify as an aggravated felony under the
INA. Id. at 627. The Lopez Court rejected that possibility and embraced the hypothetical federal-
felony approach. We must therefore apply the hypothetical federal-felony approach, previously
No. 06-4270                 Rashid v. Mukasey                                                   Page 5


adopted by this court in Palacios-Suarez, to determine under what circumstances a state drug-
possession conviction is a drug-trafficking crime under the CSA.
        The immigrant in Palacios-Suarez had two state drug-possession convictions, just as Rashid
does. This court explained that “[b]ecause neither of the state convictions involved a trafficking
element, our sole inquiry under § 1101(a)(43)(B) is to determine whether the two state convictions
could be considered felonies punishable under the CSA.” 418 F.3d at 700. Palacios-Suarez’s
convictions each carried a maximum prison term of one year. Id. “Thus, under the analogous
provision of the CSA, Palacios-Suarez’s offenses would each be classified only as misdemeanors,
and therefore could not be considered ‘drug trafficking crimes’ under § 924(c)(2) nor ‘aggravated
felonies’ under § 1101(a)(43)(B).” Id.
        The court went on to note that “[f]ederal law does provide . . . that if the person ‘commits
such offense after . . . a prior conviction for any drug, narcotic, or chemical offense chargeable under
the law of any State, has become final, he shall be sentenced to a term of imprisonment for . . . not
more than 2 years.’” Id. (quoting 21 U.S.C. § 844(a)). In other words, under the recidivist provision
of § 844(a), “drug possession could be a federal felony.” Id. Palacios-Suarez was not subject to the
sentencing enhancement for recidivism, however, because “[i]n order to be eligible for the enhanced
punishment, the defendant’s second offense must occur after the prior drug conviction has become
final,” and his had not. Id.
          In the present case, the BIA concluded that Palacios-Suarez stands for the proposition that
if a first state drug-possession conviction has become final before the commission of a second such
offense, the two convictions together qualify as recidivist possession and thus as an aggravated
felony. But this determination places too much weight on the dicta from Palacios-Suarez. The
court in Palacios-Suarez simply noted that “under [the] recidivist provision, drug possession could
be a federal felony.” Id. (emphasis added). Although this statement is undoubtedly true, the court
in Palacios-Suarez had no occasion to address the full range of circumstances under which drug
possession becomes a federal felony, the issue that is presently before us. Because
Palacios-Suarez’s second conviction did not even potentially qualify as recidivist possession, he was
found not to have committed a drug-trafficking crime.
        Moreover, at least two circuits have adopted Rashid’s position and concluded that multiple
state drug-possession convictions do not automatically qualify as federal recidivist possession. One
is the Third Circuit, which in Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001), held that, in order
to qualify as an aggravated felony, “there must be a judicial determination beyond a reasonable
doubt of every element of a felony or a constitutionally valid plea that encompasses each of those
elements.” Id. at 137. Steele dealt with a situation identical to the present case, in which an
immigrant had been convicted of multiple misdemeanor state drug-possession offenses. The district
court determined that Steele had committed the aggravated felony of federal recidivist possession,
but the Third Circuit reversed because “the aggravated felony disability under the Act applies only
if there has been a conviction of a felony.” Id. at 138. Because Steele’s convictions were all
misdemeanors, he had not committed an aggravated felony.
        The First Circuit is the other circuit to reach a similar result. In Berhe v. Gonzales, 464 F.3d
74 (1st Cir. 2006), it reversed the BIA’s finding that an immigrant had committed an aggravated
felony under federal law on the basis of two state drug-possession convictions. The court in Berhe
explained that because both of the state offenses were misdemeanors, “we must look to the record
of conviction of the alleged aggravated felony to determine whether the government met its burden
of proving that Berhe had a prior conviction for a drug offense.” Id. at 86. Because the record of
the second conviction contained no reference to the first conviction, the court concluded “that Berhe
was charged and convicted of the misdemeanor crime (under both Massachusetts and federal law)
No. 06-4270                 Rashid v. Mukasey                                                      Page 6


of simple possession of a controlled substance punishable by no more than one year in prison,” and
therefore had not committed an aggravated felony. Id.
        But both of the above cases predate the Supreme Court’s decision in Lopez v. Gonzales, 127
S. Ct. 625 (2006), as do a number of cases that reach the opposite conclusion. See Smith v.
Gonzales, 468 F.3d 272, 276-77 (5th Cir. 2006) (concluding that two state drug-possession
convictions did not qualify as an aggravated felony only because the first conviction was not final
prior to the commission of the second offense); United States v. Simpson, 319 F.3d 81, 85 (2d Cir.
2002) (concluding that misdemeanors under state law, including “distribution of marijuana,
possession with intent to distribute marijuana, and simple possession of marijuana after a prior
conviction for any controlled substance offense, were all punishable as felonies under the CSA”).
Simpson is easily distinguishable from the present case, however, because in addition to the simple
possession offenses, there were at least two misdemeanor convictions that clearly qualified as
hypothetical federal felonies—the distribution of marijuana and possession with the intent to
distribute marijuana.
        The Seventh Circuit and the Fifth Circuit are the only two circuits that have addressed the
recidivist issue post-Lopez even though both courts reached this issue in the context of a criminal
sentencing appeal rather than in a removal proceeding. In United States v. Pacheco-Diaz, 506 F.3d
545 (7th Cir. 2007), the Seventh Circuit concluded that the recidivist enhancement applied to an
immigrant who had been convicted of two state drug-possession misdemeanors. Based on the
possibility that Pacheco-Diaz would have faced a recidivist enhancement had he been charged in
federal court, the Seventh Circuit concluded that he had committed an aggravated felony for
sentencing purposes. Id. at 550. The court explicitly relied on a footnote from Lopez, which
explained as follows:
       Congress did counterintuitively define some possession offenses as “illicit
       trafficking.” Those state possession crimes that correspond to felony violations of
       one of the three statutes enumerated in § 924(c)(2), such as possession of cocaine
       base and 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), regardless of whether these federal possession felonies or their state
       counterparts constitute “illicit trafficking in a controlled substance” or “drug
       trafficking” as those terms are used in ordinary speech. But this coerced inclusion
       of a few possession offenses in the definition of “illicit trafficking” does not call for
       reading the statute to cover others for which there is no clear statutory command to
       override ordinary meaning.
Lopez, 127 S. Ct. at 630 n.6. According to the Seventh Circuit, “[t]he Court thus acknowledged that,
although it seemed counterintuitive to classify recidivist possession as ‘illicit trafficking,’ Congress
had clearly done so.” Pacheco-Diaz, 506 F.3d at 548.
       Similarly, the Fifth Circuit in United States v. Cepeda-Rios, ___ F.3d ___, No. 07-50731,
2008 WL 2266996 (5th Cir. June 4, 2008), concluded that its pre-Lopez precedent holding that a
“second conviction for simple possession qualifies as an aggravated felony under the sentencing
guidelines” survived Lopez. Id. at *2. Relying on the same footnote from Lopez quoted by the
Seventh Circuit, the court held that “a state crime is to be deemed a felony if it would have been
prosecuted as such under federal law.” Id.
        The ultimate problem with the conclusions of the Seventh Circuit in Pacheco-Diaz, the Fifth
Circuit in Cepeda-Rios, and the IJ and the BIA in the present case is that, as Rashid aptly explains,
they “added a hypothetical to a hypothetical.” The first and only hypothetical that should be
considered under the “hypothetical federal felony approach” is whether the crime that an individual
No. 06-4270                  Rashid v. Mukasey                                                   Page 7


was actually convicted of would be a felony under federal law. See Steele, 236 F.3d at 138
(explaining that “the aggravated felony disability under the [INA] applies only if there has been a
conviction of a felony”). But by looking to facts not at issue in the crime of conviction in order to
determine whether an individual could have been charged with a federal felony, our sister circuits,
the IJ, and the BIA have considered an impermissible second hypothetical. We conclude that
inclusion of the word “hypothetical” in the “hypothetical federal felony” approach does not provide
the government with free reign to make ex-post determinations of what federal crimes an individual
could hypothetically have been charged with where, as here, a prior drug-possession conviction was
not at issue in the prosecution of the subsequent drug-possession offense.
        Footnote six from Lopez does not change this analysis. Although both the Seventh Circuit
and Fifth Circuit relied on the footnote to conclude that a second state misdemeanor drug offense
qualifies as an aggravated felony, the footnote does not inexorably dictate such a conclusion. At the
heart of Lopez is the need to create uniformity between offenses that might be treated as felonies
under state law but would qualify as only misdemeanors under federal law. 127 S. Ct. at 627 (“The
question raised is whether conduct made a felony under state law but a misdemeanor under the
Controlled Substances Act is a ‘felony punishable under the Controlled Substances Act.’”). In fact,
the context of footnote six indicates that the Lopez Court was concerned with the generally
counterintuitive conclusion (based on the ordinary meaning of language) that not all drug-trafficking
crimes actually involve an element of trafficking. The Lopez Court explained that relying on state-
law definitions of felonies “would often turn simple possession into trafficking, just what the English
language tells us not to expect.” Lopez, 127 S. Ct. at 630.
          Immediately preceding the footnote, the Court explained that “Congress can define an
aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us
so . . . .” Id. By way of example of how Congress “tell[s] us so,” the Court explained in footnote
six that recidivist possession is included within the definition of drug-trafficking crimes, despite how
that “term[] is used in ordinary speech.” Id. at n.6. Footnote six indicates that “[t]hose state
possession crimes that correspond to felony violations . . . , such as . . . recidivist possession, . . .
clearly fall within the definitions” of an aggravated felony. Id.
        But Lopez does not compel the conclusion that two state misdemeanor drug-possession
convictions automatically qualify as the aggravated felony of recidivist possession under federal law
(provided, of course, that the second offense occurs after the first conviction has become final).
Instead, as the BIA recognizes, the more appropriate reading of the Lopez Court’s passing reference
to recidivist possession as a drug-trafficking crime 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.’” Matter of Carachuri-Rosendo, 24 I. & N. Dec.
382, 390 (BIA 2007).
        Another aspect of Lopez provides strong support for Rashid’s argument. In rejecting the
government’s argument in Lopez that a state felony (but a federal misdemeanor) can qualify as an
aggravated felony under federal law, the Court addressed the fact that in some states the line
between misdemeanor possession and felony possession is drawn based on the quantity of drugs
possessed. Lopez, 127 S. Ct. at 633. Under federal law, however, all possession is generally treated
as a misdemeanor, but possession of large quantities can potentially be prosecuted as the felony of
possession with intent to distribute. Id. “Thus, an alien convicted by a State of possessing large
quantities of drugs would escape the aggravated felony designation simply for want of a federal
felony defined as possessing a substantial amount.” Id. Under the BIA’s determination in Rashid’s
case, however, such an alien could have been charged with possession with intent to distribute and
thus deemed to have committed an aggravated felony. What is telling about this aspect of Lopez is
the emphasis on the need for a high degree of similarity between the elements of a state crime of
conviction and a corresponding federal felony. As the Lopez Court noted, “Congress knows that any
No. 06-4270                 Rashid v. Mukasey                                                   Page 8


resort to state law will implicate some disuniformity in state misdemeanor-felony classifications.”
id.
        There are also compelling due process concerns that weigh in Rashid’s favor. Specifically,
21 U.S.C. § 851 lists requirements that must be met before an individual’s sentence may be
increased on the basis of prior convictions, including the filing of information with the trial court
related to the prior convictions and notice to the defendant of the proposed increased punishment.
A defendant must also be given the opportunity to challenge the validity of a prior conviction.
These due process requirements are also applicable to recidivism charges brought under state law.
Oyler v. Boles, 368 U.S. 448, 452 (1962) (explaining that “a defendant must receive reasonable
notice and an opportunity to be heard relative to the recidivist charge”).
        We have explained that “[t]he government’s failure to notify [a defendant] that an enhanced
penalty would be imposed if he had prior felony convictions . . . affected [his] substantial rights.
Such errors are not harmless, and cannot be overlooked.” United States v. Williams, 899 F.2d 1526,
1531 (6th Cir. 1990). As amici curiae Criminal Defense Attorneys of Michigan and the New York
State Defenders Association explain, “many misdemeanor or lesser convictions involve indigent
defendants whose convictions are processed under questionable circumstances and may be found
invalid if challenged.”
       The Third Circuit acknowledged these problems in Steele v. Blackman, 236 F.3d 130 (3d Cir.
2001), explaining that
       [t]he problem with the District Court’s approach is not that it treated the status of
       being a “one time loser” as an element of the hypothetical federal felony. Rather, the
       problem is that Steele’s “one time loser” status was never litigated as a part of a
       criminal proceeding. That status was not an element of the crime charged in the
       second misdemeanor proceeding against him. As a result, the record evidences no
       judicial determination that that status existed at the relevant time. For all that the
       record before the immigration judge reveals, the initial conviction may have been
       constitutionally impaired.
Id. at 137-38. Thus, although the Seventh Circuit and Fifth Circuit both repeat the Supreme Court’s
statement that recidivist possession counterintuitively qualifies as a drug-trafficking crime, a second
state drug-possession offense does not automatically qualify as recidivism under the hypothetical
federal-felony approach. A conviction for misdemeanor drug possession, such as Rashid’s second
conviction in this case, is simply a conviction for the charged offense unless there is explicit
reference to a prior misdemeanor drug-possession conviction as an element of the subsequent
offense. The conviction of a prior drug-possession offense, in other words, is necessary but not
sufficient in and of itself to render someone a recidivist.
        Adopting Rashid’s argument is consistent with the “categorical approach” that this court
generally uses to determine if an offense constitutes an aggravated felony. Under the categorical
approach, first articulated by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990),
a sentencing court may “look only to the fact of conviction and the statutory definition of the prior
offense” in deciding whether to apply a sentencing enhancement based on prior convictions. Id. at
602. The categorical approach has been refined over the years, and this court recently explained that
“[u]nder the categorical approach, it is not only impermissible, but pointless, for the court to look
through to the defendant’s actual criminal conduct.” United States v. Montanez, 442 F.3d 485, 489
(6th Cir. 2006) (internal quotation marks omitted). Based on that approach, Rashid cannot be found
to have committed an aggravated felony unless his second conviction required a finding of a prior
conviction.
No. 06-4270                 Rashid v. Mukasey                                                   Page 9


        We recognize that not all states punish recidivism in the same way, that some states lack
recidivism provisions altogether, and that no state prosecutes recidivism in exactly the same manner
as set forth in 21 U.S.C. § 844(a). These concerns, however, do not change our conclusion in the
present case. As the BIA has explained, “[i]t is not necessary . . . for the structure of the underlying
State law to be comparable to the structure of the CSA.” Carachuri-Rosendo, 24 I. & N. Dec. at 391
(emphasis in original). Provided that an individual has been convicted under a state’s recidivism
statute and that the elements of that offense include a prior drug-possession conviction that has
become final at the time of the commission of the second offense, then that individual, under the
categorical approach, has committed an aggravated felony under § 844(a).
         In the present case, however, Rashid’s second drug-possession conviction made no reference
to his first such conviction. He was therefore not convicted of a recidivist offense under state law.
For the reasons set forth above, this means that he has not committed an aggravated felony under
the INA. We conclude that the BIA erred in ruling to the contrary, thus necessitating a remand for
further proceedings.
E.      Rashid’s request to be returned to the United States
        Finally, Rashid has requested that, if he prevails on appeal, the government be required to
fund his return to the United States so that he can apply for cancellation of removal. But his only
citation in support of this argument is to Califano v. Yamasaki, 442 U.S. 682, 705 (1979), which
addressed the power of federal courts to issue injunctions. He also makes a general plea under the
broad scope of equitable relief generally available to courts in order to “fully accomplish justice.”
        In response, the government indicated in a footnote to its brief that, should we decide that
further administrative proceedings are required (a point it now explicitly argues in favor of), “there
is no basis for assuming that the Government would not return [Rashid] to the United States, if
necessary to conduct those proceedings.” Based on the government’s apparent concession that it
will return Rashid to the United States for the proceedings that we now require, any dispute
regarding this issue can be resolved by the BIA.
                                        III. CONCLUSION
    For all of the reasons set forth above, we REVERSE the judgment of the BIA and
REMAND the case for further proceedings consistent with this opinion.
