                                                                           FILED
                             NOT FOR PUBLICATION                            SEP 23 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JERMAINE R DIAS, Germaine Dias,                  No. 08-73051
Jermaine Ricardo Dias, Jermaine R. Diaz,
                                                 Agency No. A074-882-099
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                      Argued and Submitted September 2, 2011
                             San Francisco, California

Before: BERZON and BYBEE, Circuit Judges, and WHELAN, Senior District

Judge.**

       Jermaine Dias petitions for review of the BIA’s dismissal of his appeal of an

IJ’s decision. The BIA affirmed the IJ’s finding that Dias was removable under 8

           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Thomas J. Whelan, Senior District Judge for the U.S.
District Court for the District of Southern California, San Diego, sitting by
designation.
U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony, based

on his conviction for criminal sale of marijuana in the fourth degree in violation of

New York Penal Law § 221.40.1

      As the BIA affirmed the order of removal only on the ground that the §

221.40 conviction was a conviction for an aggravated felony, whether that is so is

the only issue properly before us. See Gonzales v. Thomas, 547 U.S. 183, 186

(2006). Under the categorical approach of Taylor v. United States, 495 U.S. 575

(1990), which we use to determine whether the crime of conviction qualifies as an

generic aggravated felony, Hernandez-Cruz v. Holder, ---F.3d---, No. 08-73805,

2011 WL 2652461, at *4 (9th Cir. 2011), criminal sale of marijuana in the fourth

degree does not constitute an aggravated felony. There are two possible routes

through which a state drug crime can qualify as a generic drug trafficking felony:

The crime can either contain a “trafficking element” because it involves “some sort

of commercial dealing,” Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008)

(quoting Lopez v. Gonzalez, 549 U.S. 46, 53 (2006) (internal quotation marks




      1
        The BIA declined to reach the IJ’s additional holding that Dias’s
conviction for rape in the third degree, in violation of New York Penal Law §
130.25, also constituted an aggravated felony. Because “[o]ur review is limited to
the BIA’s decision,” Toro Romero v. Ashcroft, 382 F.3d 930, 934 (9th Cir. 2004),
we do not address this issue either. See INS v. Ventura, 537 U.S. 12, 16 (2002).

                                          2
omitted)), or entail conduct that “would be punishable as a felony under federal

drug laws,” id.

      Conduct that violates § 221.40 does not necessarily involve “some sort of

commercial dealing,” id., because a person can violate the statute by simply giving

away marijuana without consideration. See N.Y. Penal Law § 221.40; id. §

220.00(1); People v. Starling, 650 N.E.2d 387, 390 (N.Y. 1995). A conviction

under § 221.40 does not, therefore, categorically contain a “trafficking element,”

Rendon, 520 F.3d at 974 (quoting Salvejo-Fernandez v. Gonzalez, 455 F.3d 1063,

1066 (9th Cir. 2006)) (internal quotation marks omitted).

      Nor is conduct that violates § 221.40 necessarily punishable as a felony

under the federal drug laws. An individual could be convicted under the statute for

giving away as few as two marijuana cigarettes or a quantity of marijuana barely

exceeding two grams. See N.Y. Penal Law §§ 221.40, 221.35. Under federal law,

such conduct would be punishable as a misdemeanor rather than as a felony. See

21 U.S.C. §§ 841(b)(4), 844(a); Lopez, 549 U.S. at 53. Accordingly, a conviction

under § 221.40 is not a “categorical match,” Hernandez-Cruz v. Holder, 2011 WL

2652461, at *4 (9th Cir. 2011), for generic drug trafficking under either of the

routes established in Rendon.




                                          3
      We GRANT Dias’s petition for review and REMAND to the BIA to: (1)

apply the modified categorical approach to determine whether Dias’s § 221.40

conviction qualifies as an aggravated felony, thus rendering him removable under

8 U.S.C. § 1227(a)(2)(A)(iii); (2) determine whether Dias is removable on any

other ground; or (3) if necessary (e.g., if Dias’s § 221.40 conviction turns out not to

qualify as an aggravated felony), conduct both inquiries.




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