POSSESSION CRIMES AS AGGRAVATED FELONIES

By:  Roman P. Mosqueda, Esq.

            One of  the most perplexing issues in removal/deportation proceedings before the Immigration Court is on possession crimes as aggravated felonies.

            Indeed, possession crimes may only be misdemeanors in state penal law, but may be classified as aggravated felonies under federal immigration or penal statute or case law. 

And there are no reliefs to removal or deportation, other than withholding of removal (or deportation) and relief under the Convention Against Torture, for aggravated felons.

Buying or Receiving

Stolen Property:

            Section 496 of the California Penal Code punishes buying or receiving stolen property, or concealing, selling, withholding or aiding in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, by imprisonment in a state prison (as a felony), or in a county jail for not more than one year (as a misdemeanor).

If the value of the property does not exceed $400, the District Attorney or the Grand Jury may, in the interests of justice, specify in the accusatory pleading (complaint or information) that the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year.

            Section 101(a)(43)(G) of the Immigration and Nationality Act classifies a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment imposed (regardless of suspension thereof) is at least one year (a misdemeanor penalty) as an aggravated felony.

            Thus, a sentence of one-year imprisonment for petit (petty) theft, although a misdemeanor under state law, is an aggravated felony for purposes of aforesaid federal immigration law.

            The Board of Immigration Appeals has ruled, in Matter of Bahta, 22 I&N Dec. 1381, 1390 (BIA 2000),  that the “receipt of stolen property” parenthetical in the aforesaid theft provision of the Act “include(s) the category of offenses involving knowing receipt, possession or retention of property from its rightful owner.”

            Worse, attempted (not total or permanent) possession of stolen property is a theft offense, and may be an aggravated felony. 

Thus, the unlawful taking or driving a vehicle in violation of Section 10851 of the California Vehicle Code, punishable by imprisonment in the state prison or in a county jail for not more than one year, may be an aggravated felony, if the term of imprisonment imposed by the judge is at least one year (even though suspended).

Simple Drug Possession:

            One of the Author’s clients was convicted of possession of narcotic control substance under Section 11350(a) of the California Health and Safety Code, charged as a felony, and sentenced on January 10, 2000, with 120 days of imprisonment less credit for time in custody and good time/work time, and placed in three-year formal probation (a misdemeanor punishment)

            Under Section 101(a)(43)(B) of the Act, illicit trafficking in a controlled substance as defined in Section 102 of the Controlled Substances Act (21 USC §802), including a drug trafficking crime as defined in 18 USC §924(c), is classified as an aggravated felony.

            A two prong test is used to determine whether a drug offense may qualify as an “aggravated felony” under the Act: (1) if it is punishable under the federal Controlled Substance Act, and (2) if it is a felony.  United States v. Robles-Rodriguez, 281 F. 3d 900, 903 (9^th Cir. 2002).

            The Controlled Substance Act (21 USC §801 et. seq.) punishes possession of a controlled substance in 21 USC §844(a). Thus, it is not necessary that the offense has a trafficking (selling) component to be an aggravated felony.

            But the offense must be a felony, punishable by more than one year’s imprisonment under applicable state or federal or foreign country law.

            Under federal law, possession of an unspecified type and quantity of a controlled substance is punishable by up to one year in prison. 21 USC §844(a).  Thus, simple possession, which is not punishable by more than one year’s imprisonment under applicable federal law, is not an aggravated felony.

            But possession of a controlled substance, that is punishable by more than one year’s imprisonment under applicable state law, is classified as an aggravated felony.

            Section 11350 of the California Health and Safety Code punishes possession of any controlled substance specified therein with imprisonment in the state prison (a felony punishment), or in the county jail for not more than one year (a misdemeanor punishment).

            Under Section 17(a) of the California Penal Code, a felony is a crime which is punishable with death or by imprisonment in the state prison.  Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.

            And every offense punishable by imprisonment in any of the state prison is for 16 months, or two or three years therein. 

But under Section 17(b)(1) of the same Penal Code,  when a crime is punishable, in the discretion of the Court, by imprisonment in the state prison or by fine or by imprisonment in the county jail, it is a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison.

            Thus, simple drug possession may or may not be an aggravated felony under California law, depending on whether it is charged as a felony or misdemeanor; and whether the judgment imposed is imprisonment in the state prison or in the county jail.

            It is the Author’s position presented to Los Angeles Immigration Judge Romig on June 25, 2004, that his lawful permanent resident client charged with felony possession of narcotic control substance, but sentenced to 120 days in county jail, is not an aggravated felon.

Transportation of Counterfeited Securities:

            Another client of the Author was convicted of transportation of counterfeited securities under 18 USC §2314, and sentenced to imprisonment of 51 months, supervised release for three years and no restitution.

            His conviction for a felony involving fraud or deceit becomes an aggravated felony, if the loss to the victim or victims exceeds $10,000, under Section 101(a)(43)(M)(i) of the Act.  But there was no loss to the victim in the mere transportation of counterfeited securities.  No restitution to the victim was ordered by  the Federal District Court Judge.

            But it is the position of the Los Angeles District Counsel for the Department of Homeland Security that possession of counterfeited securities constitutes an attempt to defraud, and therefore an aggravated felony under Section 101(a)(43)(U) of the Act, classifying an attempt or conspiracy to commit an offense as an aggravated felony.

            The District Counsel relies on In Re Onyido, Int. Dec. 3379 (BIA March 4, 1999).  But the Second Circuit has disregarded Onyido in Sui v. INS, 250 F.3d 105, 110 (2d Cir. 2001), and ruled that an “attempt” requires the intent to commit a crime and a substantial step towards its commission.

            It found further that while Sui could have most likely been convicted of an attempt, he was not; and that it was not the proper role of a reviewing court to examine the facts of the underlying conviction, a matter appropriate only for a criminal jury.

            The Author cited Sui in his Brief filed on June 8, 2004, with Los Angeles Immigration Judge G. Vahid-Tehrani that his client convicted of transportation of counterfeited securities is not an aggravated felon because he did not commit an attempt to defraud.

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        (The Author, Roman P. Mosqueda, has personally defended numerous alien-respondents in deportation/removal proceedings in Immigration Courts in California, Arizona, Texas, Illinois and New York, and before the Board of Immigration Appeals and the Ninth Circuit Court of Appeals)