                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-1053
                                    ___________

Tomas Tostado,                         *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Missouri.
Ken Carlson, Interim Deputy Field      *
Office Director; Bureau of Immigration *
and Customs Enforcement, Department *
of Homeland Security,                  *
                                       *
            Appellees.                 *
                                 ___________

                              Submitted: February 13, 2007
                                  Filed: April 2, 2007
                                  ___________

Before SMITH, HEANEY,1 and BENTON, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

      Tomas Tostado appeals the district court's denial of his habeas petition. Tostado
argues that his state-law convictions for the unlawful possession of cocaine and
unlawful possession of cannabis are not aggravated felonies for purposes of the



      1
       The Honorable Gerald W. Heaney assumed retirement status August 31, 2006.
This opinion is being filed by the remaining judges of the panel pursuant to 8th Cir.
R. 47E.
Immigration and Naturalization Act ("INA"). Based on the Supreme Court's recent
decision of Lopez v. Gonzales, ___ U.S. ___, 127 S. Ct. 625 (2006), we reverse.



                                    I. Background
       Petitioner Tomas Tostado is a native and citizen of Mexico who entered the
United States on November 29, 1984, as a lawful permanent resident. Tostado has
never become a naturalized citizen. On May 2, 2001, Tostado was convicted in Illinois
state court for the unlawful possession of cocaine, a class 1 felony, and the unlawful
possession of cannabis, a class 4 felony.

       Because of Tostado's convictions, Immigration and Naturalization Service
(INS) special agents in St. Louis, Missouri, arrested him. The INS served Tostado a
notice to appear—a charging document for removal proceedings filed with the
appropriate United States immigration court. The INS filed the charging document
with the immigration court in Chicago for a hearing in St. Louis, which was initially
set for October 23, 2001. The immigration court reset Tostado's hearing on his
application for relief from deportation until October 8, 2002.

       Before Tostado's hearing, the INS filed an additional removal charge against
Tostado, charging him as removable for having committed an aggravated felony based
upon Matter of Yanez, 23 I&N Dec. 390 (BIA 2002). In that case, the Bureau of
Immigration Appeals (BIA) reversed its prior holding that a first-time state felony
drug conviction was not a "drug trafficking crime" within the federal law. Under
Yanez, a state felony drug conviction is properly classified as an aggravated felony
under § 101(a)(43)(b) of the INA, 8 U.S.C. § 1101(a)(43)(B). An alien who is
removable from the United States for committing an aggravated felony may not seek
the relief of cancellation of removal. 8 U.S.C. § 1229b(a)(3).




                                         -2-
       At Tostado's hearing, the immigration judge denied his relief application and
ordered him deported to Mexico. The BIA denied Tostado's appeal. The day before
Tostado's removal, he filed the instant habeas petition. The district court denied his
petition, finding that under Eighth Circuit law and the BIA's decision in Yanez,
Tostado's offense was an "aggravated felony" within the meaning of § 1101(a)(43).2
Tostado appeals, arguing that simple possession of cocaine is not a "drug trafficking
crime," and thus not an "aggravated felony," and that the BIA's application of Yanez
to him was an impermissible retroactive application of a new rule, which violates
precepts of substantive and procedural due process.

                                        II. Analysis
                                     A. Jurisdiction
       We have jurisdiction to review final orders of the district court in habeas corpus
proceedings pursuant to 28 U.S.C. § 2253. In addition, the REAL ID Act of 2005,
Pub.L. No. 109-13, 119 Stat. 231, amends portions of § 242 of the INA, 8 U.S.C. §
1252, and clarifies the scope of judicial review of removal orders. Pursuant to § 106
of the REAL ID Act, a petition for review to the courts of appeal is the exclusive
means of review of an administrative order of removal, deportation, or exclusion. 8
U.S.C. § 1252(a)(5). Under § 106(c) of the REAL ID Act, district courts no longer
have habeas jurisdiction to review final orders of review; instead, any habeas corpus
petition pending in the district court in which an alien challenges a final administrative
order of removal, deportation, or exclusion must be transferred by the district court
to the appropriate court of appeals. "Furthermore, the amendment was intended to be
retroactive, applying to direct review of orders issued before, on or after the date of
the enactment." Lopez v. Gonzales, 417 F.3d 934, 936 (8th Cir. 2005) (citing REAL
ID Act § 106(b)).




      2
       We initially affirmed. Tostado v. Carlson, 437 F.3d 706 (8th Cir. 2006),
vacated and remanded, Tostado v. Carlson, 127 S. Ct. 936 (2007).

                                           -3-
       The REAL ID Act has also added "an additional jurisdictional provision to §
242. The new provision, INA § 242(a)(2)(D), codifies our jurisdiction to review
constitutional claims or questions of law raised in petitions for review of decisions
made by the Attorney General under INA § 240A and other sections." Id. In this case,
Tostado raises a question of law regarding whether his conviction in Illinois meets the
INA definition of an "aggravated felony." Accordingly, we will treat Tostado's appeal
as a petition for review to determine if the BIA's decision and the district court's order
were correct.

      "We review the BIA's legal determination de novo, according substantial
deference to the BIA's interpretation of the statutes and regulations it administers."
Lopez, 417 F.3d at 936. (internal quotations and citations omitted). This court reviews
the "BIA's interpretation of federal criminal statutes de novo without according any
deference." Id.

                              B. Aggravated Felony
      Tostado argues that his Illinois conviction for the unlawful possession of
cocaine and unlawful possession of cannabis was not an aggravated felony for the
purposes of the INA because, while it was a felony under Illinois law, it would not be
considered a felony under federal law.

       Under the INA, the term "aggravated felony" includes a "drug trafficking
crime." Lopez, ___ U.S. ___, 127 S. Ct. at 627–28. In turn, the term "drug trafficking
crime" includes "'any felony punishable under the Controlled Substances Act . . . .'"
Id. at 628. "Under the immigration statutes . . . the Attorney General's discretion to
cancel the removal of a person otherwise deportable does not reach a convict of an
aggravated felony." Id. (citing 8 U.S.C. § 1229(b)(a)(3)).

       In Lopez, the Supreme Court held that "conduct made a felony under state law
but a misdemeanor under the Controlled Substances Act is [not] a 'felony punishable

                                           -4-
under the Controlled Substances Act.'" Id. at 627 (quoting 18 U.S.C. § 924(c)(2)). The
Court explained that "[m]ere possession is not . . . a felony under the federal CSA
. . . although possessing more than what one person would have for himself will
support conviction for the federal felony of possession with intent to distribute . . . ."
Id. at 629.

      Here, neither party disputes that Tostado's state law convictions for unlawful
possession of cocaine and unlawful possession of cannabis would constitute
misdemeanors if prosecuted under the CSA. Therefore, we hold, in accordance with
Lopez, that Tostado's crimes do not constitute "drug trafficking crimes," as they are
not punishable as felonies under the CSA. Thus, Tostado has not been convicted of
an "aggravated felony" and is eligible for cancellation of removal.

                                   III. Conclusion
       Based on the foregoing, we reverse the BIA's order denying Tostado's
application for cancellation of removal and the district court's denial of his habeas
petition, and we remand to the BIA for consideration of Tostado's application for
cancellation of removal.
                        ______________________________




                                           -5-
