Antoine L. Hylton, a/k/a Antoine Hylton Petitioner,
v.
Jefferson B. Sessions III, United States Attorney General, Respondent.
Argued: June 27, 2018
Antoine
Hylton, a Jamaican national, petitions for review of the
order of the Board of Immigration Appeals, which found him
ineligible for cancellation of removal because his prior
state conviction for sale of marijuana in the third degree
constituted an aggravated felony under the Immigration and
Nationality Act. The single issue on appeal is whether the
minimum offense conduct under Hylton's statute of
conviction, New York Penal Law ("NYPL") §
221.45, is necessarily punishable as a federal felony by the
Controlled Substances Act. Because NYPL § 221.45
explicitly extends to the distribution of less than an ounce
of marijuana without remuneration, it is punishable as a
federal misdemeanor. Hylton's crime of conviction is
therefore not categorically an aggravated felony. We GRANT
the petition, VACATE the opinion of the BIA, and REMAND for
further consideration consistent with this opinion.
Gerardo Romo, Kyle Barron, Washington Square Legal Services,
Inc., New York, NY (Nancy Morawetz, Washington Square Legal
Services, Inc., New York, NY; Su Yon Yi, Queens Law
Associates, Public Defenders, Forest Hills, NY, on the
brief), for Petitioner.
Alexander J. Lutz, Trial Attorney, Office of Immigration
Litigation, for Chad A. Readler, Acting Assistant Attorney
General (Anthony C. Payne, Assistant Director, Office of
Immigration Litigation, on the brief), Washington, D.C., for
Respondent.
Before: Jacobs, Raggi, and Hall, Circuit Judges
DENNIS
JACOBS, CIRCUIT JUDGE.
Antoine
Hylton, a Jamaican national, petitions for review of the May
9, 2017 order of the Board of Immigration Appeals
("BIA"), which found him ineligible for
cancellation of removal because his prior state conviction
for sale of marijuana in the third degree constituted an
aggravated felony under the Immigration and Nationality Act
("INA"). The single issue on appeal is whether the
minimum offense conduct under Hylton's statute of
conviction, New York Penal Law ("NYPL") §
221.45, is necessarily punishable as a federal felony by the
Controlled Substances Act ("CSA"). See Martinez
v. Mukasey, 551 F.3d 113, 118-19 (2d Cir. 2008).
"If
a noncitizen's conviction for a marijuana distribution
offense fails to establish that the offense involved either
remuneration or more than a small amount of marijuana,"
the offense is punishable as a federal misdemeanor.
Moncrieffe v. Holder, 569 U.S. 184, 206 (2013)
(referencing 21 U.S.C. § 841(b)(4), which states that
notwithstanding federal law making trafficking in any
quantity of marijuana a felony, "distributing a small
amount of mari[j]uana for no remuneration shall be
treated" as a misdemeanor). The CSA does not define
"a small amount." We now hold that an ounce, or
roughly 30 grams (28.35 in point of fact), is a "small
amount" of marijuana within the meaning of 21 U.S.C.
§ 841(b)(4). Our ruling is in keeping with the decisions
of our sister circuits, the commentary of the BIA, the
structure of the relevant federal statutes, and the principle
of personal use. Because NYPL § 221.45 explicitly
extends to the distribution of less than an ounce of
marijuana without remuneration, it is punishable as a federal
misdemeanor. See Moncrieffe, 569 U.S. at 206;
Castro Rodriguez, 25 I. & N. Dec. 698, 703
(2012). The BIA decision rested on the observation that there
was no "realistic probability" that New York would
apply NYPL § 221.45 to conduct outside the generic
federal felony. That was error because the state statute on
its face punishes conduct classified as a federal
misdemeanor.
Hylton's
crime of conviction is therefore not categorically an
aggravated felony. Hylton is removable, but not precluded
from equitable relief at the discretion of the immigration
judge ("IJ"). The IJ weighed equities and granted
cancellation of removal, a ruling that the BIA did not reach,
having found ineligibility for that relief. We
GRANT the petition, VACATE
the opinion of the BIA, and REMAND for the
BIA to review the IJ's grant of cancellation of removal.
I
Antoine
Hylton was admitted to the United States as a lawful
permanent resident in 1989. He is married to a U.S. Citizen
and has two U.S. citizen brothers, a U.S. citizen mother, and
three U.S. citizen-children whom he supports. In 2011, Hylton
was convicted of criminal possession of marijuana in the
third degree and criminal sale of marijuana in the third
degree. See NYPL §§ 221.20, 221.45. He was
detained by the Department of Homeland Security
("DHS") in 2013 and charged as removable for having
been convicted of an aggravated felony drug trafficking
offense. See 8 U.S.C. § 1227(a)(2)(A)(iii).
When
Hylton appeared before the IJ, he conceded removability, but
challenged the aggravated felony charge in order to become
eligible for cancellation of removal. The IJ ruled as a
matter of law that Hylton was not an aggravated felon and
made factual findings that Hylton was entitled to relief from
deportation. Specifically, the IJ conducted an analysis under
the categorical approach, concluded that the minimum conduct
criminalized under NYPL § 221.45 includes the
non-remunerative transfer of 30 grams or less of marijuana,
and ruled accordingly that this conduct fell outside the
class of aggravated felony that constitutes "illicit
trafficking in a controlled substance." 8 U.S.C. §
1101(a)(43)(B). The IJ then weighed the discretionary factors
to determine whether Hylton warranted equitable relief. In
view of Hylton's lengthy residence and significant family
ties, the IJ concluded that the "positives outweigh[ed]
the negatives" and granted cancellation of removal. CAR
121.
The
Government appealed to the BIA. Reviewing the IJ's
aggravated felony ruling de novo, the BIA held that
Hylton's conviction "does not fall within the
misdemeanor exception contained at 21 U.S.C. §
841(b)(4)" and is therefore an aggravated felony. CAR 5.
Instead of conducting an analysis under the categorical
approach, the BIA reasoned that "there is not a
realistic probability that New York would apply NYPL §
221.45 to conduct that falls outside the generic definition
of a felony under the CSA." Id. at 6. Because
the BIA ordered Hylton removed as an aggravated felon, it did
not reach the IJ's grant of cancellation of removal.
Hylton
timely petitioned this Court for review. This Court's
limited jurisdiction over Hylton's petition of the BIA
order is to review "constitutional claims or questions
of law." 8 U.S.C. § 1252(a)(2)(D). "Whether a
conviction qualifies as an aggravated felony is a question of
law, which we review ...