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Rejecting the view of seven sister circuits, the 3rd U.S. Circuit Court of Appeals has ruled that an alien should not be deemed an “aggravated felon” and automatically deported on the basis of a state court felony drug charge unless that crime would also be considered a felony under federal law. Instead, the 3rd Circuit adopted the approach taken by the Board of Immigration Appeals, which has repeatedly held that a state court drug conviction cannot count as an aggravated felony unless it involved trafficking or if it would qualify as a federal felony. In Gerbier v. Holmes, a case of first impression, Chief 3rd Circuit Judge Edward R. Becker said he sided with the BIA — and rejected the views of the 1st, 2nd, 5th, 8th, 9th, 10th and 11th circuits — because immigration law must be uniform. “Under the approach espoused by those courts of appeals, as long as the state drug conviction is a felony under state law, it need only be punishable, either as a misdemeanor or a felony, under federal law in order for the alien to be ineligible for cancellation of removal,” Becker wrote. “As a result, an alien in one state might be ineligible for cancellation of removal even though he committed the same exact crime as an alien in a different state, simply because the two states punish the same crime differently,” Becker wrote. Becker found that such disparate results “are a real possibility.” As an example, he said, a person convicted of a single offense of simple possession of 30 grams or less of marijuana in North Dakota, where the offense is punishable as a felony, would be subject to deportation without the possibility to apply for cancellation of removal, whereas a person convicted of the same offense in Montana, where the crime is only a misdemeanor, would not be subject to deportation. “This cannot be what Congress intended in establishing a ‘uniform’ immigration law,” Becker wrote. The ruling means that David Gerbier — a native of Haiti who has been a lawful U.S. permanent resident since 1984 — now has the opportunity to seek cancellation of his deportation order from the U.S. Attorney General. If the appellate court had not overturned the lower court’s decision that Gerbier is an “aggravated felon” under the Immigration and Naturalization Act, his deportation would have been automatic. Becker found that the primary question in Gerbier’s case was one of first impression for the 3rd Circuit. While other circuits have addressed the question in a sentencing context, Becker found that the 3rd Circuit has never ruled on the question of whether a state felony drug conviction constitutes a “drug trafficking crime” and, therefore, an “aggravated felony” under the INA when that crime would only be punishable as a misdemeanor under federal law. Becker found that Gerbier’s conviction in Delaware state court was for “trafficking in cocaine” even though the factual basis for the plea was mere possession, which the Delaware statute subsumes under “trafficking.” Although a state felony drug conviction always constitutes an “aggravated felony” when there is a trafficking component to the state conviction, Becker found that there was a conflict between the BIA and seven federal circuits over the proper interpretation of � 924(c)(2) as it applies to state convictions when there is no trafficking element. The BIA has interpreted � 924(c)(2) to require that, for deportation purposes, a state drug conviction — whether a felony or a misdemeanor — must either contain a “trafficking” component or be punishable as a felony under federal law in order for it to constitute an “aggravated felony.” But so far, every federal appellate court that has tackled the question has interpreted the same language to require that the state drug conviction need only be a felony under state law and that the state crime be punishable under the federal Controlled Substances Act, either as a felony or a misdemeanor. Becker noted that all of the other appellate decisions were made in the context of interpreting the Sentencing Guidelines, but found that BIA’s approach was the correct one — at least in the context of deportation proceedings. “We recognize that the interpretation of Section 924(c)(2) in the Sentencing Guidelines context serves different purposes, particularly with respect to criminal recidivism, and we reserve for another day the proper interpretation of Section 924(c)(2) in the Sentencing Guidelines context,” Becker wrote. “For deportation purposes, however, we are persuaded by precepts of statutory construction and by the legislative history of Se[ction] 924 that a state felony drug conviction constitutes a ‘drug trafficking crime’ only if it would be punishable as a felony under the federal Controlled Substances Act. We believe that this conclusion properly reflects the policy favoring uniformity in construction of the INA because it subjects aliens to the same treatment regardless of how different states might categorize similar drug crimes,” Becker wrote. Becker was joined by 3rd Circuit Judge Richard L. Nygaard. But visiting Judge Thomas M. Reavley of the 5th Circuit, sitting on the 3rd Circuit by invitation, dissented. Reavley said the wording of the definition of “aggravated felony” seems to “point to any state felony that would be conduct punishable under federal law, rather than necessarily to a crime that would be punishable as a felony under federal law.” He ended the one paragraph dissent by saying: “I might join Chief Judge Becker’s masterful opinion, however, if we were surveying a new route; but too many circuit courts have chosen the other way and I would follow them in the interest of consistency and uniformity of federal law.” Gerbier was represented by attorney Sandra L. Green of York, Pa. Assistant U.S. Attorney Stephen J. Britt argued the case for the government.

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