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Appellate Law: Appellate Law and Practice
CA1: no cancellation of removal for possession of small amounts of pot
By S. COTUS
Julce v. Mukasey, No. 07-2362 (6/20/08). The First lays out the issue like so:
The petitioner raises a new question for this court involving the interplay between the immigration law's definition of aggravated felons, who are ineligible for cancellation of removal, and the federal criminal statutory exception in 21 U.S.C. § 841(b)(4) for reducing certain felony marijuana offenses from felonies to misdemeanor status.
I put more stuff down below.
This petitioner was convicted of possession with intent to distribute a Class D substance (in his case, marijuana) under Massachusetts law. See Mass. Gen. Laws ch. 94C, § 32C(a) The IJ held that under Berhe v. Gonzales, 464 F.3d 74, 84-85 (1st Cir. 2006) (our coverage here), ?a conviction under Mass. Gen. Laws ch. 94C, § 32C(a) qualifies as an ?aggravated felony? for purposes of the INA.? Therefore, he couldn?t seek cancellation of removal.
The First begins by saying that it is splitting with the Third. The First resolves this issue by looking at the ?hypothetical federal felony? (i.e. an analogous federal statute), in this case, 21 U.S.C. § 841(a)(1), is an aggravated felony. But it also rejects the argument that ?because the state marijuana statute encompasses conduct that would not be punishable as a felony under the CSA, but would instead be treated as a misdemeanor under the CSA.? But, the First says that because the federal statute allows people to prove that they were just possessing small amounts pot for fun (but not profit), the burden is really on the defendant (to show that) and so the federal felony crime is really the same, rather than a separate federal misdemenor. In other words, ? Julce's argument is that because there is at least the theoretical possibility that he pled guilty to conduct that would fall within the scope of § 841(b)(4), and the government's evidence did not exclude this possibility, his conviction under Mass. Gen. Laws ch. 94C, § 32C(a) cannot be considered an aggravated felony.?
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