9th Circuit Overturns BIA Finding That State Conviction For Simple Drug Possession Is "Aggravated Felony"

IMMIGRATION LAW & POLICY

Removal Issues
Concerning Criminal Convictions

9th Circuit withdraws opinion in Cazarez-Gutierrez v. Ashcroft
Immigrants' Rights Update, Vol. 18, No. 3, May 2004

A panel of the U.S. Court of Appeals for the Ninth Circuit has withdrawn the opinion it issued in Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. Jan. 26, 2004). In the prior opinion, the court found that the Board of Immigration Appeals erred in finding that a state conviction for simple drug possession constitutes an “aggravated felony” for immigration purposes. On that basis, the court granted the petition for review and remanded the case to the BIA to adjudicate the petitioner’s application for cancellation of removal (see “9th Circuit Overturns BIA Finding That State Conviction for Simple Drug Possession Is ‘Aggravated Felony,’” IMMIGRANTS’ RIGHTS UPDATE, Feb. 17, 2004, p. 6).

After that opinion issued, the court ordered supplemental briefing on whether the court is divested of jurisdiction over the petition for review by section 242(a)(2)(C) of the Immigration and Nationality Act. Section 242(a)(2)(C) bars appellate jurisdiction over petitions for review filed by immigrants who are removable for having committed certain criminal offenses, including not only aggravated felonies, but also any controlled substance offense. The court also requested that the supplemental briefs address whether the petition for review can be construed as a habeas petition and remanded to federal district court. Subsequently, the court issued an order withdrawing the prior opinion and directing that the supplemental briefing proceed as previously ordered.

Cazarez-Gutierrez v. Ashcroft, No. 02-72978 (9th Cir., order of Apr. 26, 2004).