                           NONPRECEDENTIAL DISPOSITION
                            To be cited only in accordance with
                                     Fed. R. App. P. 32.1




              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                 Argued October 14, 2009
                                Decided November 4, 2009

                                           Before

                            JOHN L. COFFEY, Circuit Judge

                            TERENCE T. EVANS, Circuit Judge

                            ANN CLAIRE WILLIAMS, Circuit Judge

No. 08-4188

KURT GARBUTT,                                   Petition for Review of an Order
     Petitioner,                                of the Board of Immigration Appeals.

       v.                                       No. A036 991 429

ERIC H. HOLDER, JR.,
Attorney General of the United States,
      Respondent.



                                         ORDER

        Kurt Garbutt, a citizen of Belize, was found to be removable after an immigration
judge determined, applying this court’s precedent in Fernandez v. Mukasey, 544 F.3d 862 (7th
Cir. 2008), that his second state conviction for cocaine possession constituted an aggravated
felony. The IJ further found that the aggravated-felony conviction rendered Garbutt
ineligible to apply for cancellation of removal. Garbutt petitions for review and makes two
primary arguments: (1) that Fernandez incorrectly fails to grant Chevron deference to the
No. 08-4188                                                                                Page 2



BIA’s position that a second or subsequent conviction for possession of a controlled
substance is not an aggravated felony and (2) that, even if deference is not appropriate, we
should overrule Fernandez.

        The INA does not permit aliens to apply for cancellation of removal when they are
found to have been “convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). 8 U.S.C.
§ 1101(a)(43)(B) defines “aggravated felony,” in part, as “illicit trafficking in a controlled
substance, . . . including a drug trafficking crime (as defined in section 924(c) of Title 18).”
Section 924(c), in turn, defines a “drug trafficking crime” as “any felony punishable under
the Controlled Substances Act (CSA) (21 U.S.C. 801 et. seq.).” 18 U.S.C. § 924(c). Courts
have interpreted the penultimate sentence of § 1101(a)(43), which provides that “[t]he term
[aggravated felony] applies to an offense described in this paragraph whether in violation
of state or federal law,” in part to mean that state offenses which correspond to CSA
felonies are aggravated felonies for immigration purposes. Lopez v. Gonzales, 549 U.S. 47, 60
(2006).

        While the CSA treats simple possession of cocaine as a misdemeanor, see 21 U.S.C.
§ 844(a) (setting a maximum term of imprisonment at “not more than 1 year”), the CSA
treats recidivist possession—a conviction for a possession offense after a prior possession
conviction has become final—as a felony, see id. (setting a maximum penalty for recidivist
possession at “not more than 2 years”).

        We have held that a second state conviction for simple possession is an aggravated
felony under § 1101(a)(43)(B) because it corresponds to felony possession under the CSA,
see Fernandez, 544 F.3d at 874; United States v. Pacheco-Diaz, 506 F.3d 545, 550 (7th Cir. 2007),
reh’g denied, 513 F.3d 776, 779 (7th Cir. 2008). However, though the BIA has stated that it
will apply circuit precedent on the matter, it has also determined that, in the absence of a
controlling circuit precedent, IJs should not treat an alien’s second state simple-possession
conviction as an aggravated felony unless the conviction contains a finding of recidivism.
See Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007) (en banc) (“Carachuri-Rosendo
I”).

         Garbutt first argues that we should defer to the BIA’s default position—that a
second state simple-possession offense is not an aggravated felony unless the conviction
contains a specific finding of recidivism. Garbutt concedes that we owe no deference to the
BIA’s interpretation of § 924(c) because it is a federal criminal statute. He argues, however,
that it is not § 924(c), but the penultimate sentence of § 1101(a)(43) that acts as the “textual
linchpin” between the definition of aggravated felony and an alien’s state-possession
No. 08-4188                                                                              Page 3



conviction. It is this sentence, Garbutt contends, that codifies Congress’ intent that only
state criminal convictions analogous to drug trafficking crimes are aggravated felonies.

        Though the penultimate sentence of § 1101(a)(43) makes clear that state crimes can
be aggravated felonies, Garbutt argues that it is nonetheless ambiguous because it doesn’t
make clear what it means for a state criminal provision to be “described in” the provision.
Because the interpretation of the INA is entrusted to the BIA, Garbutt contends, courts
should defer to the BIA’s reasonable interpretations of the “fit” or mode of comparison that
IJs should apply to determine whether an alien’s second state-possession conviction
corresponds to the CSA felony-possession provision. Though we have held three times
that a second state-possession conviction is a felony under § 1101(a)(43)(B)--twice in
Pacheco-Diaz and once in Fernandez--Garbutt nonetheless argues that we should defer to the
BIA’s position, see Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982
(2005) (stating that stare decisis cannot privilege circuit precedent over an agency
interpretation unless the statutory language unambiguously forecloses that interpretation).

        Garbutt’s argument, although not without appeal, is not persuasive. Courts
interpreting § 1101(a)(43)(B), including the Supreme Court, have reasoned, implicitly or
explicitly, that the interpretation of the fit between state criminal statutes and the CSA is
entrusted to the courts, not the BIA. See, e.g., Alsol, 548 F.3d at 210 (“when the BIA
interprets state or federal laws . . . we review its interpretation de novo”). Though the
hypothetical federal felony approach—where a court determines whether a state-
possession conviction would be a felony under federal law—appears to have originated
with the BIA, see Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990), only the Second Circuit
has suggested that the BIA’s interpretation of the approach may be due deference, see
Aguirre v. INS, 79 F.3d 315, 317 (2d Cir. 1996), and that suggestion may be questionable
today, see Alsol v. Mukasey, 548 F.3d 207, 210 (2d Cir. 2008) (“when the BIA interprets state
or federal laws . . . we review its interpretation de novo”).

        This court’s Fernandez majority opinion and the Supreme Court’s opinion in Lopez
both implicitly hold, however, that the BIA’s position regarding the mode of comparison
between state criminal convictions and the CSA is owed no deference. The majority in
Fernandez considered and rejected the interpretation offered by the BIA’s en banc majority
in Carachuri-Rosendo I—that a second simple state-possession offense was not an
aggravated felony. Fernandez, 544 F.3d at 868 (“[w]e fail to see how the Board’s decision . . .
affects the outcome of this case”). Necessary to the majority’s argument in Fernandez is the
understanding that the BIA’s position regarding mode of comparison is due no deference.
No. 08-4188                                                                                Page 4



        In any event, the Supreme Court’s Lopez opinion forecloses Garbutt’s argument. In
Lopez, the Supreme Court construed § 1101(a)(43)(B) and § 924(c) to determine a slightly
different issue—whether a state felony conviction that corresponded to a misdemeanor
under the CSA was an aggravated felony for the purposes of § 1101(a)(43)(B). Lopez, 549
U.S.
 at 50. In reaching its decision, the Court considered the meaning of the penultimate
sentence of § 1101(a)(43), which Garbutt claims is ambiguous. The Court, however, did not
see any ambiguity in the provision. Rather, it understood the provision to serve two
“perfectly straightforward” purposes: (1) demonstrating that generic crime descriptions
within § 1101(a)(43) were covered by the provision regardless of whether they were state or
federal crimes, and (2) confirming that a state offense whose elements include the elements
of a felony punishable under the CSA is an aggravated felony. Id. at 57.

        Lopez also specifically abrogated the BIA’s interpretive position. Id. at 51-52. The
BIA had adopted the position of the majority of circuits—that a state felony which was a
misdemeanor under the CSA was an aggravated felony under § 1101(a)(43)(B). Id. The
Court, however, held the opposite, overruling the BIA and all circuits adopting the same
position. Id. at 52. Implicit in this holding is the fundamental understanding that courts
owe no deference to the BIA’s interpretation of the mode of comparison between state
criminal convictions and the CSA in determining whether a state conviction is an
aggravated felony under § 1101(a)(43)(B). Thus, Garbutt is only partially correct when he
contends that Lopez did not “hold that this is not a Chevron situation.” While Lopez did not
explicitly speak to deference, its approach unambiguously forecloses Garbutt’s deference
argument. The Court also implicitly confirmed the BIA’s own position that the fit between
state crimes and federal crimes under § 1101(a)(43)(B) is a complicated question that
involves the interplay of federal and state criminal statutes that is entrusted to the courts.
See Lopez, 549 U.S. at 52 (citing Matter of Yanez-Garcia , 23 I. & N. Dec. 390, 396-97 (2002) for
the proposition that “BIA decisions would conform to applicable Circuit law”).

        Garbutt also points to Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008), a
case in which we deferred to a BIA interpretation in what he calls “a nearly identical
situation.” In Negrete-Rodriguez, we considered whether to defer to the BIA’s interpretation
of 8 U.S.C § 1101(a)(43)(E)(ii), which treats firearm offenses “described in” 18 U.S.C.
§ 922(g)(1) as aggravated felonies for the purposes of the INA. Negrete-Rodriguez, 518 F.3d
at 500. Section 922(g)(1) contains an interstate nexus element, which requires that a firearm
be possessed in or affect interstate commerce, to establish federal jurisdiction over the
firearm offense. § 922(g)(1). The alien in Negrete-Rodriguez had been convicted under a
state statute that did not contain an interstate nexus element. The court found rational and
No. 08-4188                                                                              Page 5



reasonable the BIA’s determination that the interstate nexus element was not required for
the state conviction to count as an aggravated felony. Id. at 503. Garbutt argues that this
case calls for similar deference to the BIA’s determination of the proper “fit” between the
state statute of conviction and the federal offense under § 924(c).

        While Negrete-Rodriguez does use the language of deference, the case upon which it
most heavily relies, United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001), does not.
In Castillo-Rivera the Ninth Circuit held that interpretation to the contrary—requiring a
state offense of conviction to include a finding of an interstate nexus—would thwart
Congressional intent. Castillo-Rivera, 244 F.3d at 1023-24. No deference argument was
made or entertained. The Negrete-Rodriguez court considered the Ninth Circuit’s reasoning
“persuasive,” Negrete-Rodriguez, 518 F.3d at 502, and appears to have used the language of
deference only because that was how the litigants framed the issue.

       Furthermore, Garbutt may not rely on Negrete-Rodriguez to urge us to defer to the
BIA’s interpretation. That case specifically distinguished a case interpreting
§ 1101(a)(43)(B), Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006), as involving only
“federal criminal law”—a matter entrusted to the courts rather than the BIA. Negrete-
Rodriguez, 518 F.3d at 501. Gonzales-Gomez, like Lopez, interpreted § 1101(a)(43)(B) to
determine whether a state felony corresponding to a federal misdemeanor was an
aggravated felony. Gonzales-Gomez, 441 F.3d at 533-34. And, like Lopez, Gonzales-Gomez
stands for the proposition that the interpretation of this fit is entrusted to the court—that
no deference should be afforded the BIA’s interpretation. Id.

       Garbutt acknowledges that overruling our precedent requires en banc review or
circulation to the entire court under C IR. R. 40(e), but in the alternative, we should simply
reconsider Fernandez. In support Garbutt offers three arguments: that Fernandez misreads
Lopez and Taylor to permit the IJ to consider two records of conviction together, that
permitting the IJ to make recidivism determinations raises fairness concerns, and that the
Fernandez approach will lead to state convictions being analyzed differently from federal
ones.

        These arguments are not novel; all were addressed and ultimately rejected by the
majority in Fernandez. 544 F.3d at 870-72, 872-73, 873-74. Generally, principles of stare
decisis require that “considerable weight [be given] to prior decisions of this court unless
and until they have been overruled or undermined by the decisions of a higher court, or
other supervening developments.” Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006)
No. 08-4188                                                                             Page 6



(citations omitted). Unless Garbutt can offer a compelling reason to overturn circuit
precedent, he cannot prevail; he has provided no such reason.

       Little has transpired since our Fernandez opinion. While the Second Circuit has
joined the opposite side of the circuit split, see Alsol, 548 F.3d at 217, the Fifth Circuit
recently reaffirmed its supporting position en banc, see Carachuri-Rosendo v. Holder, 570 F.3d
263, 264 (5th Cir. 2009) (en banc) (“Carachuri-Rosendo II”). Furthermore, we unanimously
denied rehearing en banc in Fernandez just last April.

       We have considered this issue three times—twice in Pacheco-Diaz and again in
Fernandez—and have found that a second state-possession offense is an aggravated felony.
Since Garbutt’s deference argument is foreclosed and his alternative arguments have
already been rejected, his petition for review is DENIED.
