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BIA Rules on Municipal Ordinances and Drug Trafficking Aggravated Felonies

By Sarah Bronstein

In a recent decision by the Board of Immigration Appeals, the court revisited the issue of what constitutes a conviction for immigration purposes.  The court also looked at the circumstances under which a conviction relating to possession of a controlled substance can trigger the drug trafficking aggravated felony ground of deportability.   Matter of Cuellar-Gomez, 25 I&N Dec. 850 (BIA 2012).

The court addressed three main  issues in this case:  1) whether the respondent had a conviction for immigration purposes where the matter was handled in a municipal court; 2) whether the municipal ordinance under which the respondent was convicted was a “law or regulation of a State…relating to a controlled substance”; and  3) whether the Respondent’s conviction for possession of marijuana after a prior municipal court conviction constituted a drug trafficking aggravated felony because of its relation to the Federal recidivist possession felony. 

Convictions Under Municipal Ordinances

In Cuellar-Gomez, the BIA held that a finding of guilt made by a municipal court is a conviction under the Immigration and Nationality Act where the proceedings were “genuine criminal proceedings.”  Id. at 852.  The BIA found that the procedures in place in the municipal court system in Kansas are such that the proceedings meet this standard.  The factors the BIA considered in reaching this conclusion were that:  municipal court judges in Kansas may order the incarceration of defendants; municipal court convictions are used when calculating a defendant’s criminal history; and there is a right to appointed counsel in Kansas municipal court proceedings where the defendant may face incarceration.  Id. at 853.  The respondent argued that because the municipal courts do not afford the right to a jury trial, the proceedings were not “genuine criminal proceedings.”  The BIA found, however, that because Kansas has a two tiered system for municipal ordinance violations in which the defendant has the opportunity for a de novo review of a municipal court finding of guilt by a State district court before a jury, the municipal court proceedings meet the court’s criminal proceedings standard.  Id. at 854.

Controlled Substance Violation

INA §237(a)(2)(B)(i) states that a non-citizen is deportable if he or she is “convicted of a violation of…any law or regulation of a State…relating to a controlled substance.”  The BIA found in Cuellar-Gomez that a violation of a municipal ordinance constitutes a violation of a” law or regulation of a State.” The BIA concluded that “a municipal ordinance that supplements or complements the laws passed by the State Legislature is still a ‘law…of a State’ because it is ultimately an expression of State sovereignty.”  Id. at 857.   The BIA held that because Mr. Cuellar-Gomez had two possession convictions, including the municipal ordinance violation, he was deportable under the controlled substance ground of deportability.

Drug Trafficking Aggravated Felony

The BIA also considered whether the respondent was deportable under a second ground of deportability:  the drug trafficking ground of deportability found at INA §101(a)(43)(B).  Drug trafficking crimes are defined in the United States Code as any felony punishable under the Controlled Substances Act (CSA).  With a few narrow exceptions, simple possession offenses are not punishable as felonies under the CSA.  One of these exceptions is that the CSA punishes simple possession after a prior conviction for any drug related offense as a felony.  This concept is generally referred to as “recidivist possession.”  The U.S. Supreme Court has found that in order for a second simple possession offense to trigger the drug trafficking aggravated felony ground, it must be charged, prosecuted and “enhanced” as a recidivist simple possession offense.  Id. at 861 citing Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). 

In reviewing the respondent’s second drug possession conviction, the court found that the respondent’s state criminal prosecution met the requirements of the CSA for charging a possession offense under the recidivist provision.  The requirements set forth by the CSA are that the defendant must be served in advance with “enhancement information” specifying the prior conviction to be relied upon and the defendant must be afforded the right to challenge the validity of the prior conviction.  In the state proceedings, the respondent was provided with pretrial notice that the State was seeking a recidivist enhancement, the prior conviction was clearly identified and he had the opportunity to challenge the conviction being relied upon.  Id. at 863.

In addition, the court addressed the respondent’s argument that the first municipal conviction could not form the basis for a recidivism charge under the CSA because the CSA requires that a prior conviction be for an offense “chargeable under the law of any State.”  The court reiterated its position that a municipal ordinance violation is a conviction for an offense within the meaning of the CSA.  Id. at 864.  The court therefore found that the respondent’s second conviction triggered the drug trafficking aggravated felony ground of deportability.