                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-2538
ISMAEL YANEZ-GARCIA,
                                                      Petitioner,
                              v.

JOHN D. ASHCROFT, Attorney General
of the United States,
                                                     Respondent.
                        ____________
No. 02-2666
NIR MASOK,
                                                      Petitioner,
                              v.

JOHN D. ASHCROFT, Attorney General
of the United States,
                                                     Respondent.
                        ____________
                On Petitions for Review of Orders
              of the Board of Immigration Appeals.
                 Nos. A91 334 042 & A38 686 189
                        ____________
  ARGUED OCTOBER 1, 2003—DECIDED NOVEMBER 2, 2004
                    ____________
2                                Nos. 02-2538 & No. 02-2666

    Before KANNE, ROVNER, and EVANS, Circuit Judges.
  ROVNER, Circuit Judge. Ismael Yanez-Garcia and Nir
Masok are permanent resident aliens, each of whom has
pleaded guilty in Illinois state court to possession of cocaine.
The Board of Immigration Appeals concluded that this of-
fense qualified as a drug trafficking crime, and therefore as
an aggravated felony, rendering Yanez and Masok ineligible
for cancellation of removal. Each of them filed a petition for
review, asking us to overturn the BIA’s conclusion that a
single possession offense can qualify as a drug trafficking
crime. This calls for us to address the meaning of “drug
trafficking crime,” which is defined as “any felony punish-
able under” federal drug laws. Specifically, we are asked to
decide whether the term applies to drug crimes that are
felonies under state law but only misdemeanors under fed-
eral law. However, the jurisdiction-stripping provisions of
the Immigration and Nationality Act make it impossible for
us to do so on direct review. We must therefore transfer this
case to the district court for consideration as a petition for
habeas corpus.
   Under the Immigration and Nationality Act (“INA”), an
alien who has been convicted of violating any law relating
to a controlled substance offense is deportable. 8 U.S.C.
§ 1227(a)(2)(B). If that alien is a permanent resident (and
meets certain other criteria) he may ask the Attorney
General for discretionary cancellation of removal. 8 U.S.C.
§ 1229b(a). This remedy is unavailable, however, if the alien
has been convicted of an aggravated felony. 8 U.S.C.
§ 1229b(a)(3). An alien with an aggravated felony conviction
also may not return to the United States for at least twenty
years, 8 U.S.C. § 1182(a)(9)(A)(i), and faces heightened
penalties if he does return, 8 U.S.C. § 1326(b)(2). The
definition of aggravated felony includes a “drug trafficking
crime,” 8 U.S.C. § 1101(a)(43)(B), which in turn includes
“any felony punishable under the Controlled Substances Act
[‘CSA’],” 18 U.S.C. § 924(c)(2).
Nos. 02-2538 & No. 02-2666                                    3

  Under the CSA, a first-time simple possession offense is
(with irrelevant exceptions) punishable by a maximum of one
year in prison, and is considered a misdemeanor. 21 U.S.C.
§ 844(a). In contrast, a second possession offense can carry
a maximum sentence of two years, and is considered a
felony. Id.
   State laws, of course, classify drug offenses differently. In
Illinois, possession of less than 15 grams of cocaine (the
offense to which Yanez and Masok each pleaded guilty) is
considered a Class 4 felony. 720 ILCS 570/402(c). So the
question arises: if a state-law drug felony would only be a
misdemeanor under federal law, is it considered a “felony
punishable under” the Controlled Substances Act—and
therefore a “drug trafficking offense”—for purposes of
immigration law?
   Until recently, the Board of Immigration Appeals held that
it was not. Under its “hypothetical federal felony” rule, a
drug offense had to be punishable as a felony under federal
law in order to be considered a drug trafficking offense
under the INA. See In re L-G-, 21 I. & N. Dec. 89, 102 (BIA
1995); Gerbier v. Holmes, 280 F.3d 297, 312 (3d Cir. 2002)
(split panel) (endorsing the “hypothetical federal felony”
test); Aguirre v. INS, 79 F.3d 315, 317-18 (2d Cir. 1996)
(adopting the BIA’s test in the interest of uniformity, but
noting that “the statutory point is fairly debatable”).
  This was the rule in force at the time of Yanez’s removal
hearing. Although Yanez had two Illinois convictions for co-
caine possession, which he conceded subjected him to removal,
he wished to apply for cancellation. But the Immigration
Judge concluded that because a second possession convic-
tion is punishable as a felony under federal law, Yanez’s
second conviction qualified as an aggravated felony. The IJ
therefore found him ineligible for cancellation of removal.
  Yanez disputed this conclusion before the BIA. He pointed
out that his first conviction resulted in probation, which
4                               Nos. 02-2538 & No. 02-2666

was revoked only when he pleaded guilty to his second
offense. He argued that there was thus no “prior final con-
viction” at the time of his second conviction, so the latter
would not qualify as a federal felony. He still conceded re-
movability, but argued that he should be allowed to apply
for cancellation of removal.
  The BIA did not decide whether Yanez’s first conviction
was “final.” Instead, it took the occasion to reevaluate its
longstanding “hypothetical federal felony” rule. It noted that
some circuit courts had disagreed with that rule, although
in the separate context of illegal reentry after removal. In
that context, those circuits had concluded that “any felony
punishable under” the Controlled Substances Act included
any state-law felony punishable under the Act, even if it
would only be a misdemeanor under federal law. See, e.g.,
United States v. Hernandez-Avalos, 251 F.3d 505, 509 (5th
Cir. 2001); United States v. Ibarra-Galindo, 206 F.3d 1337,
1341 (9th Cir. 2000). Considering itself unable to sustain a
different interpretation in those circuits, even for purposes
of removal, the BIA decided to abandon its blanket use of
the “hypothetical federal felony” test and to defer to the
interpretation of “drug trafficking crime” given by each
regional circuit. See Matter of Yanez, 23 I. & N. Dec. 390
(BIA 2002).
  Because the Seventh Circuit has not yet decided whether
“drug trafficking crimes” include state felonies punishable
only as misdemeanors under federal law, the BIA decided
Yanez’s case using the majority circuit rule—that a state-
law drug felony is a “drug trafficking crime”—and found
that each of Yanez’s possession convictions was therefore an
aggravated felony, making him ineligible for discretionary
relief.
  On the basis of its holding in Matter of Yanez, the BIA
proceeded to decide a number of cases involving aliens con-
victed of state-felony drug crimes, including the case of pe-
Nos. 02-2538 & No. 02-2666                                     5

titioner Nir Masok. Like Yanez, Masok had pleaded guilty
in Illinois to simple possession of cocaine. Removal proceed-
ings were instituted, at which Masok conceded removability
and attempted to seek cancellation of removal. This was
foreclosed by the IJ’s determination that Masok’s Illinois
conviction was punishable under federal law as a felony, due
to an earlier conviction under Georgia law for possession of
marijuana. When Masok disputed this conclusion on appeal,
the BIA resolved the case by finding, under Yanez, that
Masok’s Illinois conviction alone rendered him an aggra-
vated felon and ineligible for cancellation.
  We are now asked to decide whether we agree with this
“state-law felony” test, or whether we instead endorse the
older “hypothetical federal felony” test. But there is a
threshold problem: it is not clear that we have jurisdiction
over the case. The INA provides that “no court shall have
jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed a
criminal offense covered in section 1227(a)(2)(A)(iii) [or] (B)”—
that is, an aggravated felony or a controlled substance
offense (whether state or federal). 8 U.S.C. § 1252(a)(2)(C).
The first of these is not a problem: until we decide the ques-
tion at hand, we do not know whether Yanez or Masok has
in fact committed an aggravated felony. See Flores-Leon v.
INS, 272 F.3d 433, 437 (7th Cir. 2001). But we do know that
each has committed a state-law drug crime—in fact, that is
the premise of the question we need to decide. And those
controlled substance offenses, whether or not aggravated
felonies, appear to deprive us of jurisdiction.
  There is something paradoxical about this: in order to
present the question of whether a state-law drug felony is
necessarily a “drug trafficking crime,” an alien must con-
cede that he has been convicted of a controlled substance
offense, which takes the case out of our jurisdiction. We
therefore have no way, it seems, to resolve this question on
direct review. And yet, as we said in LaGuerre v. Reno, 164
6                               Nos. 02-2538 & No. 02-2666

F.3d 1035, 1041 (7th Cir. 1998), “[i]t seems unlikely that
Congress would have wanted the [BIA] to have the final
word on so pure and fundamental a question of law” as the
meaning of “drug trafficking crime.”
  Is there some other way for us to reach the question? Af-
ter the Supreme Court’s decisions in INS v. St. Cyr, 533 U.S.
289 (2001) and Calcano-Martinez v. INS, 533 U.S. 348 (2001),
we know that habeas review remains available under 28
U.S.C. § 2241, even though Congress has eliminated direct
judicial review. It was through such a petition, in fact, that
the Third Circuit has been able to address this question. See
Gerbier v. Holmes, 280 F.3d at 312 (adopting the “hypo-
thetical federal felony” test instead of the “state-law felony”
test). Similarly, the Fifth Circuit in Flores-Garza v. INS, 328
F.3d 797 (5th Cir. 2003), dismissed a petition for direct
review of the question, but held that the district court had
jurisdiction to review it through a § 2241 petition.
   More recently, the Ninth Circuit has addressed the “drug
trafficking crime” question on direct review, treating it as
an anterior jurisdictional question that it has authority to
resolve. See Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905,
918 (9th Cir. 2004) (agreeing with the Second and Third
Circuits in adopting the “hypothetical federal felony” test in
the immigration context). The court also found, however,
that the petitioner’s controlled substance offense deprived
it of jurisdiction to review his individual case. It therefore
invoked 28 U.S.C. § 1631 to transfer the case to the district
court as if it had been filed as a petition for habeas corpus.
See id. at 919.
  We appreciate the economy of the Ninth Circuit’s approach
in deciding the “drug-trafficking crime” question directly
without a detour through the district court. But although
that question is indeed jurisdictional, and we have jurisdic-
tion to determine our jurisdiction, the fact that Yanez and
Masok have committed controlled substance offenses
Nos. 02-2538 & No. 02-2666                                     7

independently deprives us of jurisdiction over their cases,
effectively mooting the drug-trafficking question. We there-
fore do not see how we can assume jurisdiction to decide that
question on this petition for review. That does not mean
that we will never be able to decide the question, but only
that it must first be addressed by the district court, which
we agree has jurisdiction under § 2241.
  Finding it in the interest of justice, we will therefore trans-
fer these two cases to the district court under 28 U.S.C.
§ 1631 for consideration as petitions for habeas corpus. The
parties shall confer and submit a joint statement within 10
days identifying the appropriate district to which these
cases should be transferred.


A true Copy:
       Teste:

                          ________________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                    USCA-02-C-0072—11-2-04
