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                In re Jharfvan Jose THOMAS, Respondent
                               File 44 134 844 - Miami

                             Decided December 13, 2007

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


  The respondent’s 2003 Florida offense involving the simple possession of marijuana does
not qualify as an “aggravated felony” by virtue of its correspondence to the Federal felony
of “recidivist possession,” even though it was committed after a prior “conviction” for a
“drug, narcotic, or chemical offense” became “final” within the meaning of 

(a) (2000), because the respondent’s conviction for that 2003 offense did not arise from
a State proceeding in which his status as a recidivist drug offender was either admitted or
determined by a judge or jury. Matter of Carachuri-Rosendo, 

 (BIA 2007),
followed.

FOR RESPONDENT: Jose Debs-Elias, Esquire, Jacksonville, Florida

FOR THE DEPARTMENT OF HOMELAND SECURITY:                            Michael A. Mansfield,
Assistant Chief Counsel

BEFORE: Board Panel: OSUNA, Acting Chairman; and FILPPU, Board Member.
Concurring and Dissenting Opinion: PAULEY, Board Member.

FILPPU, Board Member:


  The respondent appeals from an Immigration Judge’s September 5, 2007,
decision pretermitting his application for cancellation of removal under
section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)
(2000), and ordering him removed from the United States as an alien convicted
of an aggravated felony and a controlled substance violation under sections
237(a)(2)(A)(iii) and (B)(i) of the Act, 

(a)(2)(A)(iii) and
(B)(i) (2000), respectively. The Department of Homeland Security (“DHS”)
opposes the appeal. The appeal will be sustained in part and the record will be
remanded to the Immigration Judge for further proceedings.

                                 I. BACKGROUND
  The respondent is a native and citizen of Jamaica and a lawful permanent
resident of the United States. On July 8, 2002, the respondent pled guilty in

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the Circuit Court for Duval County, Florida, to possessing cocaine in violation
of section 893.13(6)(a) of the Florida Statutes. Upon entry of the respondent’s
plea, the sentencing judge withheld adjudication of his guilt and placed him on
probation for 60 days. On August 28, 2003, the respondent appeared once
again before the Duval County Circuit Court and entered a plea of
nolo contendere to a charge that he possessed less than 20 grams of marijuana
in violation of section 893.13(6)(b) of the Florida Statutes, based on an offense
committed that same day. The trial court adjudged him guilty of that offense
and ordered him to pay fines.
  On the basis of the aforementioned convictions, the Immigration Judge
determined that the respondent was deportable as charged and ineligible for
cancellation of removal because he failed to demonstrate that he “has not been
convicted of any aggravated felony,” as required by section 240A(a)(3) of the
Act. Specifically, the Immigration Judge determined that the respondent’s
2003 conviction for marijuana possession was an “aggravated felony”
conviction under section 101(a)(43)(B) of the Act, 

(a)(43)(B)
(2000), because it was predicated on an offense that was committed after his
prior “conviction” for cocaine possession had become final, thereby qualifying
it as a State-law counterpart to the Federal felony offense of “recidivist
possession” defined at 

(a) (2000).
  On appeal, the respondent challenges the Immigration Judge’s determination
that he stands convicted of an aggravated felony.1 In particular, the respondent
invokes our precedent decision in Matter of Manrique, 

 (BIA
1995), and argues that his 2002 conviction does not constitute a valid factual
predicate for an aggravated felony determination because it was expunged
pursuant to a State rehabilitative procedure akin to that prescribed by the
Federal First Offender Act. The DHS opposes the appeal and urges us to
affirm the Immigration Judge’s decision without separate opinion.

                                     II. ISSUE
  The issue on appeal is whether the respondent’s 2003 Florida offense of
marijuana possession qualifies as an “aggravated felony” by virtue of its
correspondence to the Federal felony offense of “recidivist possession.”

                                 III. ANALYSIS
  Section 101(a)(43) of the Act defines the term “aggravated felony” to include
a “drug trafficking crime” under 

(c) (2000), “whether in

1
   The respondent’s motion to accept his late-filed brief is granted in the exercise of
discretion.

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violation of Federal or State law.” In turn, 

(c)(2) defines “drug
trafficking crime” to mean “any felony punishable under the Controlled
Substances Act (

 et seq.).” The United States Supreme Court
recently interpreted this statutory language and held that “a state offense
constitutes a ‘felony punishable under the Controlled Substances Act’ only if
it proscribes conduct punishable as a felony under that federal law.” Lopez
v. Gonzales, 

 (2006). Thus, for a State drug offense to
qualify as a “drug trafficking crime” and, by extension, an “aggravated
felony,” it must correspond to an offense that carries a maximum term of
imprisonment exceeding 1 year under the Controlled Substances Act (“CSA”).

 at 631 & n.7.
  The respondent entered pleas on two separate occasions to State-law offenses
involving the simple possession of controlled substances. Although simple
possession offenses typically proscribe conduct punishable as a Federal
misdemeanor, the Supreme Court acknowledged in Lopez v. 

that “[t]hose state possession crimes that correspond to felony violations of
[the CSA], such as . . . recidivist possession, clearly fall within the [aggravated
felony definition].” 

 at 630 n.6 (emphasis added) (citation omitted). The
Federal offense of “recidivist possession” is defined, in pertinent part, at

(a):
      It shall be unlawful for any person knowingly or intentionally to possess a controlled
      substance . . . . Any person who . . . commits such offense after . . . a prior conviction
      for any drug, narcotic, or chemical offense chargeable under the law of any State, has
      become final, shall be sentenced to a term of imprisonment for . . . not more than
      2 years . . . .

  The respondent’s 2003 Florida marijuana possession offense arguably
possesses many characteristics of a Federal “recidivist possession” felony.
Like 

(a), Florida law requires proof beyond a reasonable doubt
that possession of a controlled substance was “knowing,” Garcia v. State,

 (Fla. 2005), and both the CSA and Florida law define
the concept of “possession” to encompass both actual and constructive
possession. Compare United States v. Cooper, 

 (11th Cir.
2000), with Lester v. State, 

 (Fla. Dist. Ct. App.
2005). Moreover, in July 2002 the respondent was sentenced to probation
after entering a guilty plea to a charge of cocaine possession, a “drug, narcotic
or chemical offense” under 

(c).2 And the respondent’s

2
  A “drug, narcotic or chemical offense” includes “any offense which proscribes the
possession . . . [of] any substance the possession of which is prohibited under this
subchapter.” 

(c). Cocaine, the substance at issue in the respondent’s 2002
                                                                                (continued...)

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subsequent marijuana possession offense was committed in August 2003, long
after the July 2002 judgment imposing probation became “final” by virtue of
the expiration of the 30-day appeal period prescribed by Florida’s Rules of
Appellate Procedure. Fla. R. App. P. Rule 9.140(b)(3); see also United States
v. Brazel, 

 (11th Cir. 1997) (holding that a prior
conviction is “final” for purposes of the CSA’s recidivism provisions when all
avenues of direct appellate attack have been exhausted (citing United States
v. Lippner, 

 (11th Cir. 1982))).3
  Finally, although the trial court withheld adjudication of the respondent’s
guilt in connection with his 2002 cocaine possession offense and placed him
on probation, the United States Court of Appeals for the Eleventh Circuit–in
whose jurisdiction this proceeding arises–holds that a plea to a felony drug
charge under Florida law constitutes a valid prior “conviction” for purposes of
the CSA’s recidivism provisions, even if the trial court withheld adjudication
of guilt. United States v. Mejias, 

 (11th Cir. 1995). The
Immigration Judge determined that the respondent’s 2002 conviction had
never been set aside, but the respondent claims on appeal that the conviction
was, in fact, expunged upon his successful completion of probation.4 We are
unaware of any controlling Eleventh Circuit precedent on the question whether
a conviction that has been expunged for rehabilitative purposes qualifies as a
valid prior conviction under the CSA. However, every other Federal court of
appeals to have addressed the question has concluded that a withheld or
deferred adjudication remains a valid prior conviction under the CSA’s


(...continued)
prosecution, is such a “substance the possession of which is prohibited under [

(a)].” See 

, Schedule II(a)(4) (2000) (listing “cocaine” as a “Schedule
II” controlled substance).
3
  Under Florida law, a criminal judgment imposing probation is appealable, whether or not
the sentencing court withheld adjudication of guilt. Fla. R. App. P. Rule 9.140(b)(1)(C).
4
   The respondent contends that the 2002 conviction has therefore been vitiated for
immigration purposes pursuant to Matter of Manrique, supra. It is well settled, however,
that Matter of Manrique, supra, was superseded by Congress’s enactment of a statutory
definition for the term “conviction,” set forth at section 101(a)(48)(A) of the Act.
Resendiz-Alcaraz v. U.S. Att’y Gen., 

 (11th Cir. 2004); Matter of
Salazar, 

 (BIA 2002). Thus, even if expunged, the respondent’s 2002
conviction constitutes a valid factual predicate for the section 237(a)(2)(B)(i) charge in its
own right. With respect to the aggravated felony determination, moreover, the relevant
question is not whether the respondent’s 2002 conviction is effective for immigration
purposes, but rather whether it constitutes a valid prior conviction under the CSA’s
recidivism provisions, such that it transforms his subsequent marijuana possession offense
into the counterpart of a Federal felony.


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recidivism provisions even if the underlying prosecution or conviction was
expunged pursuant to a State’s rehabilitative procedures. See United States
v. Norbury, 

 (9th Cir. 2007); United States v. Miller,

 (6th Cir. 2006); United States v. Graham, 

 (7th Cir. 2003); United States v. Cisneros, 

 (5th
Cir. 1997); United States v. Meraz, 

, 184-85 & n.2 (3d Cir.
1993).5 These circuit court decisions are consistent with, and to a large extent
derived from, the Supreme Court’s decision in Dickerson v. New Banner
Institute, Inc., 

 (1983), in which the Court held that Federal
firearms disabilities applied with respect to any person who pled guilty to a
State offense punishable by imprisonment for more than 1 year, even if the
record of the State criminal proceeding was subsequently expunged following
a successfully served term of probation. 

 (holding that “expunction
under state law does not alter the historical fact of the conviction, . . . does not
alter the legality of the previous conviction[,] and does not signify that the
defendant was innocent of the crime to which he pleaded guilty”).6 Thus, even
if we assume for purposes of appeal that the respondent’s 2002 cocaine
possession conviction was expunged as he contends, it does not appear that
such an expunction would preclude the conviction from qualifying as a
valid prior conviction under the CSA.
  The foregoing facts appear to reflect that the respondent could have sustained
a “recidivist possession” conviction had he been prosecuted federally.
Nevertheless, we conclude that he has not been convicted of an
aggravated felony because his 2003 marijuana possession offense did not


5
  We emphasize that a conviction that is dismissed or expunged for rehabilitative purposes
is fundamentally different from one that has been vacated on the merits. A conviction that
has been reversed on direct appeal, or vacated based on a determination of trial error or
actual innocence, cannot be used as a factual predicate for a recidivist enhancement under
the CSA because such a vacatur affects the “underlying lawfulness” of the original judgment.
United States v. 

; see also United States v. Cousins, 

 (10th Cir.) (holding that a State drug conviction was entered in violation of the
defendant’s Sixth Amendment right to counsel and therefore could not be used as a basis for
a recidivist enhancement under the CSA), cert. denied, 

 (2006).
6
   The particular Federal statutes construed by the Dickerson Court were later amended to
exclude expunged convictions and to provide that the existence of a prior “conviction”
depended on State rather than Federal law. See Firearms Owners Protection Act, 

(5), 

, 449-50 (1986) (amending 

(a)(20)).
However, the Federal courts of appeals–including the Eleventh Circuit–continue to apply the
rationale of Dickerson in the CSA context. See United States v. Smith, 

(11th Cir. 1996) (per curiam); United States v. 

; see also United
States v. 

; United States v. 

.


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proscribe conduct punishable as a felony under the CSA. In Matter of
Carachuri-Rosendo, 

 (BIA 2007), we held that
whether a State drug offense constitutes an “aggravated felony” by virtue of
its correspondence to the Federal felony of “recidivist possession” is a criminal
law question that must be determined in accordance with the decisional
authority of the Supreme Court and the relevant Federal circuit court of
appeals, where such authority exists. We also indicated, however, that in
removal proceedings arising in circuits that have not yet had occasion to
announce any binding precedent on the “recidivist possession” issue, we
would not treat an alien’s State conviction for simple possession of a
controlled substance as an aggravated felony on the basis of recidivism unless
the alien’s status as a recidivist drug offender was either admitted by the alien
or determined by a judge or jury in connection with his prosecution for that
simple possession offense. 

. The present appeal is controlled
by Matter of Carachuri-Rosendo, supra.
  The Eleventh Circuit has not yet issued any precedent decision with respect
to the “recidivist possession” issue, and therefore we must resolve the question
independently, keeping in mind that our resolution is provisional and not
entitled to deference by the Eleventh Circuit. As noted previously, Matter of
Carachuri-Rosendo, supra, at 391, 394, provides that a State simple
possession offense will not be considered an aggravated felony on the basis of
recidivism, even if committed after a prior conviction for a “drug, narcotic or
chemical offense” has become final, absent proof that the conviction alleged
to be an aggravated felony resulted from a State proceeding in which the
respondent’s status as a recidivist drug offender was either admitted or
determined by a court or jury. The administrative record in the present case
contains a transcript of the respondent’s trial and sentencing for his August
2003 marijuana possession offense, and this transcript contains no indicia that
the trial judge subjected the respondent to increased punishment based on a
determination that he was a recidivist drug offender. Indeed, the record does
not reflect that the trial judge was even aware of the respondent’s earlier
conviction for cocaine possession when he imposed sentence for the
subsequent marijuana possession offense. And in any event, it is not clear that
Florida law provides any recidivist enhancement mechanism for such simple
possession offenses. See Coleman v. State, 

 (Fla. Dist. Ct.
App. 2006) (holding that section 775.084(1)(a)(3) of the Florida Statutes
precludes habitual felony offender sentencing on the basis of drug possession
offenses (citing Virgil v. State, 

 (Fla. Dist. Ct. App.
2004))). Thus, because the respondent’s marijuana possession conviction did
not result from a State proceeding in which his status as a recidivist drug
offender was either admitted or determined by a judge or jury, Matter of
Carachuri-Rosendo, supra, dictates that it does not qualify as a conviction for


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a “drug trafficking crime” under 

(c)(2) or an “aggravated
felony” under section 101(a)(43)(B) of the Act, absent controlling precedent
to the contrary.

                             IV. CONCLUSION
  The Eleventh Circuit has not yet had occasion to decide whether, or under
what circumstances, a State simple possession offense qualifies as an
aggravated felony by virtue of its correspondence to the Federal felony offense
of “recidivist possession,” as recognized by the Supreme Court in Lopez
v. 

 at 630 n.6. Accordingly, applying our precedent in Matter
of Carachuri-Rosendo, supra, we conclude that the respondent’s 2003 Florida
offense of simple possession of marijuana does not correspond to “recidivist
possession,” despite the fact that the underlying offense was committed after
a prior conviction for a “drug, narcotic, or chemical offense” had become final,
because the record does not reflect that the 2003 conviction arose from a State
proceeding in which the respondent’s status as a recidivist drug offender was
either admitted or determined by a judge or jury. Therefore, the respondent
has not been convicted of an “aggravated felony” that would support either the
charge of deportability under section 237(a)(2)(A)(iii) of the Act or the bar to
eligibility for cancellation of removal set forth at section 240A(a)(3). The
respondent remains deportable under section 237(a)(2)(B)(i) of the Act, but it
appears that he may now be statutorily eligible for cancellation of removal.
Accordingly, the record will be remanded to the Immigration Judge for further
proceedings.
  ORDER: The appeal is sustained in part and the record is remanded to the
Immigration Judge for further proceedings consistent with the foregoing
opinion and for the entry of a new decision.

CONCURRING AND DISSENTING OPINION: Roger A. Pauley, Board
Member

  I concur in the majority’s able discussion showing that the respondent’s 2002
criminal proceeding for cocaine possession in which his guilt was withheld
constitutes a “conviction” for purposes of the Controlled Substances Act’s
recidivism provisions (as well as under the Immigration and Nationality Act).
However, I respectfully dissent from the majority’s holding that,
notwithstanding the respondent’s two convictions for drug possession offenses
in Florida State courts, the latter of which was committed after the first
conviction became final, the Immigration Judge erred in finding that the
second conviction was for an aggravated felony. The Immigration Judge
properly determined under Lopez v. Gonzales, 

 (2006), that the

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respondent’s second offense qualifies as an aggravated felony because it could
have been prosecuted as a Federal felony under 

(a) (2000),
assuming the Federal prosecutor elected to charge the respondent as a
recidivist under the procedures found at 

 (2000). See Matter
of Carachuri-Rosendo, 

 (BIA 2007) (Pauley,
concurring); see also United States v. Pacheco-Diaz, 

 (7th Cir.
2007) (treating a criminal defendant’s second conviction for marijuana
possession as an aggravated felony conviction for sentence enhancement
purposes because he would have been eligible for a recidivist enhancement
under § 844(a) had he been prosecuted federally).
  The majority’s decision is hardly surprising as it was presaged in Matter of
Carachuri-Rosendo, supra. Nevertheless, its decision is incorrect. The
majority concedes that the respondent has two valid convictions for drug
possession offenses that meet the timing and finality requirements for felony
treatment set forth in 

(a). It also concedes that it “is not clear
that Florida law provides any recidivist enhancement mechanism” for simple
possession drug offenses. Matter of Thomas, 

, 421 (BIA
2007). Its holding that, nonetheless, the respondent’s second conviction fails
to qualify as an aggravated felony conviction under section 101(a)(43)(B) of
the Immigration and Nationality Act, 

(a)(43)(B) (2000), solely
because he was not charged as a recidivist under State law constitutes a
policy-driven conclusion that is not supported by either the statutes at issue or
the Supreme Court’s interpretation of them in Lopez v. 

While I am sympathetic to the policy concerns that appear to have contributed
to the majority’s conclusion, such concerns are not relevant to our task, and I
cannot therefore subscribe to the majority’s creative engineering that “invents”
a statute not of Congress’s making, but of its own.




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