FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABDEL DAAS, aka Abdel Razzaq 

Mohammad Daas, No. 06-71898 Petitioner,

Agency No.

v.  A075-109-703

ERIC H. HOLDER Jr., Attorney OPINION General,

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

July 13, 2010—San Francisco, California

Filed August 24, 2010

Before: William A. Fletcher and Milan D. Smith,

Circuit Judges, and James Dale Todd, Senior District Judge.*

Opinion by Judge Milan D. Smith, Jr.

*The Honorable James Dale Todd, Senior United States District Judge

for the Western District of Tennessee, sitting by designation. 

12769
COUNSEL

David J. Cohen, Cohen & Paik LLP, San Francisco, California, for petitioner Abdel Daas.

Peter D. Keisler, Assistant Attorney General, M. Jocelyln

Lopez Wright, Assistant Director, Kristin Edison (on the

brief), Office of Immigration Litigation, United States Justice

Department, Civil Division, for respondent Eric H. Holder Jr.,

Attorney General of the United States. 

DAAS v. HOLDER 12771
OPINION

M. SMITH, Circuit Judge:

Abdel Daas petitions for review of a decision of the Board

of Immigration Appeals (BIA or Board) finding him ineligible

for cancellation of removal on the ground that Daas was convicted of an “aggravated felony” within the meaning of the

Immigration and Nationality Act (INA), 8 U.S.C.

§ 1101(a)(43)(B). We hold that Daas’s conviction for distributing listed chemicals—ephedrine and pseudoephedrine—

with reasonable cause to believe they would be used to manufacture methamphetamine, see 21 U.S.C. § 841(c)(2), qualifies as a “drug trafficking crime” and thus constitutes an

“aggravated felony.” We therefore dismiss the petition for

review.

FACTUAL AND PROCEDURAL BACKGROUND

Daas is a Jordanian citizen who became a lawful permanent

resident in June 1996. On October 23, 1998, Daas was convicted under then 21 U.S.C. § 841(d)(2) (now codified at 21

U.S.C. § 841(c)(2)), a Controlled Substances Act (CSA)

offense proscribing anyone from “possess[ing] or distribut[-

ing] a listed chemical knowing, or having reasonable cause to

believe, that the listed chemical will be used to manufacture

a controlled substance.” Daas was supplying large quantities

of over-the-counter decongestants, Mini-Thins and Pseudo

Thins, which contained the “listed chemicals” ephedrine and

pseudoephedrine. Ephedrine and pseudoephedrine are precursor chemicals used to manufacture methamphetamine, a “controlled substance.” See United States v. Daas, 198 F.3d 1167,

1171 (9th Cir. 1999). Following his conviction, the district

court sentenced Daas to 97 months in prison. Id. at 1173.1

1We remanded for resentencing so that the district court could consider

Dass’s request for a downward departure. Daas was subsequently sentenced to 63 months and served 56. 

12772 DAAS v. HOLDER
On November 15, 2002, Daas was charged with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) on the ground

that his conviction amounted to an aggravated felony under 8

U.S.C. § 1101(a)(43)(B). After the immigration judge (IJ)

pretermitted Daas’s applications for asylum and withholding

of removal, the Board affirmed, holding that Daas was ineligible for relief because he was convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3) (limiting the Attorney

General’s authority to cancel removal of an otherwise deportable alien if the alien has been “convicted of an[ ] aggravated

felony”). The Board reasoned that 8 U.S.C. § 1101(a)(43)(B)

includes within its definition of aggravated felony “a drug

trafficking crime (as defined in 18 U.S.C. § 924(c)).” Relying

on our decision in Cazarez-Gutierrez v. Ashcroft, 382 F.3d

905 (9th Cir. 2004), the Board held that “[a] drug trafficking

crime means any felony punishable under the Controlled Substances Act [CSA].” Therefore, [Daas’s] conviction under 21

U.S.C. § 841(c)(2), for which he was sentenced to 63 months

in prison, is an aggravated felony under section 101(a)(43)(B)

of the [INA] because it is punishable under the [CSA] and it

is a felony.” Daas filed a timely petition for review.

JURISDICTION AND STANDARD OF REVIEW

While we generally have jurisdiction under 8 U.S.C. § 1252

to review final removal orders issued by the BIA, we are

without jurisdiction to review a removal order against an alien

removable for having committed an aggravated felony. See 8

U.S.C. § 1252(a)(2)(C). Nevertheless, we retain jurisdiction to

determine our jurisdiction; that is, we have jurisdiction to

determine whether an offense is an aggravated felony under

the INA. See Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217

(9th Cir. 2010). We review the issue de novo.2Id.

2The Attorney General insists that we owe deference to the one-judge,

non-precedential, unpublished BIA order in this case holding that 21

U.S.C. § 841(c)(2) is an “aggravated felony” under 8 U.S.C.

§ 1101(a)(43)(B). Our precedent tells us otherwise. See Estrada-Espinoza

v. Mukasey, 546 F.3d 1147, 1157 (9th Cir. 2008) (“A single-judge, unpublished, non-precedential BIA decision does not satisfy the standards established for Chevron deference by the Supreme Court in United States v.

Mead Corp.” (citation omitted)). 

DAAS v. HOLDER 12773
DISCUSSION

[1] “Any alien who is convicted of an aggravated felony at

any time after admission is deportable.” 8 U.S.C.

§ 1227(a)(2)(A)(iii). An “aggravated felony” is defined, in

relevant part, as “illicit trafficking in a controlled substance

(as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8

U.S.C. § 1101(a)(43)(B). Section 924(c)(2), defines “drug

trafficking crime” as “any felony punishable under [1] the

Controlled Substances Act (21 U.S.C. 801 et seq.), [2] the

Controlled Substances Import and Export Act (21 U.S.C. 951

et seq.), or [3] chapter 705 of title 46.”

3

[2] As noted above, the BIA concluded that 21 U.S.C.

§ 841(c)(2) is an aggravated felony because it is a felony punishable under the CSA. Daas argues that the BIA misread the

statute. Daas concedes, as he must, that his conviction “is

unquestionably a ‘drug trafficking’ offense under the CSA.”

Indeed, there is no dispute that 21 U.S.C. § 841(c)(2) is a felony under the CSA. See 21 U.S.C. § 841(c)(2) (listing imprisonment of not more than twenty years for violation of

§ 841(c)(2)). Cf. Lopez v. Gonzales, 549 U.S. 47, 60 (2006)

(“[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.”). 

[3] However, according to Daas, not every felony conviction under the CSA is an aggravated felony. Rather, only felonies under the CSA that “involve[ ] a controlled substance”

qualify as aggravated felonies. And, according to Daas, “it is

undisputed that Mr. Daas was convicted of an offense that did

not involve a controlled substance.” Daas argues that his con3Despite the reference in 8 U.S.C. § 1101(a)(43)(B) to section 924(c) of

Title 18, we have recognized that section 924(c)(2) “provides the definition of ‘drug trafficking crime’ for all of subsection (c).” Lopez-Jacuinde,

600 F.3d at 1218. 

12774 DAAS v. HOLDER
viction involves a List I chemical, not a controlled substance.

See 21 U.S.C. § 802(34) (listing ephedrine and pseudoephedrine as List I chemicals, defined as “a chemical that is used

in manufacturing a controlled substance in violation of this

subchapter and is important to the manufacture of the controlled substances”). In other words, Daas maintains that a

“drug trafficking crime” must meet two requirements to be

considered an “aggravated felony”: it must be a federal felony

under one of the three acts specified in 18 U.S.C. § 924(c)(2),

and it must constitute illicit trafficking in a controlled substance.

[4] Daas’s argument is foreclosed by our decisions in

Lopez-Jacuinde, 600 F.3d at 1217, and Rendon v. Mukasey,

520 F.3d 967, 974 (9th Cir. 2008). There, we recognized that

section 1101(a)(43)(B) “has given rise to two possible routes

for a state drug felony to qualify as an aggravated felony.”

Rendon, 520 F.3d at 974 (citing In re Davis, 20 I. & N. Dec.

536, 541-43 (BIA 1992)); see also Lopez-Jacuinde, 600 F.3d

at 1217 (noting that section 1101(a)(43)(B) “provid[es] two

analytic routes” for determining when a state drug felony is

an aggravated felony). First, the offense is an “aggravated felony” under the “illicit trafficking in a controlled substance”

prong if the crime contains a trafficking element. LopezJacuinde, 600 F.3d at 1217. Second, the offense is an “aggravated felony” under the “including a drug trafficking crime

(as defined in section 924(c) of Title 18)” prong if it would

be punishable under one of the three federal drug laws listed

in 18 U.S.C. § 924(c)(2). Lopez-Jacuinde, 600 F.3d at 1217.

These two routes are independent. See id. (noting that only the

“drug trafficking crime” route was at issue in that case).

[5] Therefore, to the extent Daas argues that the phrase

“including a drug trafficking crime” only applies to drug trafficking crimes for controlled substances (as opposed to listed

chemicals), our case law is to the contrary. It makes clear that

the two phrases provide independent definitions of “aggraDAAS v. HOLDER 12775
vated felony,” and that either definition will suffice. See id.;

Rendon, 520 F.3d at 974.

[6] As the BIA held, and Daas concedes, 21 U.S.C.

§ 841(c)(2) is a felony punishable under one of the three federal drug laws listed in section 924(c)(2)—the CSA. It therefore constitutes a “drug trafficking crime” and is an

aggravated felony, regardless of whether ephedrine and pseudoephedrine are “controlled substances.”

4

PETITION FOR REVIEW DISMISSED.

4

Indeed, the Supreme Court has noted that a few crimes do not fit neatly

into the definitions of “illicit trafficking in a controlled substance” or

“drug trafficking,” yet “clearly fall within the definitions used by Congress” in § 1101(a)(43)(B). See Lopez, 549 U.S. at 55 n.6 (noting that certain possession offenses such as possession of cocaine base and recidivist

possession under 21 U.S.C. § 844(a) constitute aggravated felonies,

despite the fact that possession offenses are not ordinarily considered “illicit trafficking,” because these crimes fall under the statutes enumerated

in § 924(c)(2)). 

12776 DAAS v. HOLDER