F I LED

United States Court of Appeals

Tenth Circuit

December 27, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUAN DE DIOS

GONZALEZ-GONZALEZ,

Petitioner - Appellee,

v.

SCOTT WEBER, U.S. Bureau of

Immigration and Customs Enforcement

(BICE), Denver, Colorado,

Respondent - Appellant.

No. 04-1181

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 03-RB-678 (MJW))

Jonathan F. Cohn, Deputy Assistant Attorney General (Peter D. Keisler, Assistant

Attorney General, Civil Division, David M. McConnell, Deputy Director, and Dimple

Gupta, Counsel to the Assistant Attorney General, Civil Division on the briefs), U. S.

Department of Justice, Washington, D.C., for Respondent - Appellant.

Jim Salvator, Lafayette, Colorado, for Petitioner - Appellee.

Before BRISCOE, HOLLOWAY and MURPHY, Circuit Judges.

HOLLOWAY, Circuit Judge.
The BICE is the successor to the Immigration and Naturalization Service (INS). 1

Because much of the history of this case occurred before the creation of the BICE and the

Department of Homeland Security, for convenience we will refer in this opinion to the

INS when discussing that history.

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The issue presented in this matter was very recently decided by the Supreme Court

in Lopez v. Gonzales, 2006 WL 3487031 (S.Ct. Dec. 5, 2006), making it unnecessary for

us to delve deeply into the issue and the confusion it had previously created. Because of

changes in jurisdiction and procedure that have also intervened, the form of our

disposition is nevertheless unfamiliar. Absent those statutory developments, our

disposition would have been to affirm the district court’s grant of Mr. Gonzalez’ petition

for habeas corpus relief. Under the current law, we instead convert this proceeding to a

petition for review of the underlying administrative order and grant that petition, holding

that the agency must grant Mr. Gonzalez the relief ordered by the district court.

I

The Bureau of Immigration and Customs Enforcement of the Department of

Homeland Security (BICE) appealed from the district court’s grant of a petition for 1

habeas corpus relief brought by Mr. Gonzalez. The district court had jurisdiction under

the governing law at the time because Gonzalez is an alien under order of removal who

raised constitutional challenges that could not be considered in direct review of the

agency’s order of removal. While this appeal was pending, Congress passed the REAL

ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 302 (codified in various sections of

Title 8, U.S.C. (May 11, 2005)), under which challenges such as this are properly brought
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as petitions for review in the court of appeals rather than as habeas corpus petitions under

28 U.S.C. § 2241 in the district court. See Hem v. Maurer, 458 F.3d 1185, 1188 n.3 (10th

Cir. 2006); Vargas v. Department of Homeland Security, 451 F.3d 1105, 1107 (10th Cir.

2006). Moreover, this significant jurisdictional change is not limited to petitions brought

after its effective date; therefore we convert this pending appeal into a petition for review. 

See Schmitt v. Maurer, 451 F.3d 1092, 1093 (10th Cir. 2006). We conclude that this

reasoning applies equally to this matter, in which it is the government that initiated the

appeal from the district court’s order, as to the conversion of an appeal from an alien, as

in Schmitt.

The conversion of this pending matter from an appeal of a district court’s final

order to a petition for review does not change our standard of review, which is de novo. 

See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005), cert. denied, 126 S.Ct

1362 (2006).

II

Petitioner Gonzalez entered the country illegally in 1978. In 1986 he was granted

temporary lawful residence through a special amnesty program for undocumented

agricultural workers. In 1990 he was granted lawful permanent residence. He and his

wife have four children who are United States citizens. In 1996 he was arrested and

charged in state court with possession of cocaine with intent to distribute. As a result of a

plea bargain reached in 1997, Gonzalez was sentenced to probation only. Shortly after

sentencing in that case, the INS commenced removal proceedings. Petitioner was ordered
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removed to Mexico in 1998, and he appealed to the Bureau of Immigration Appeals

(BIA) from that order.

The INS had charged that Gonzalez was removable as an alien convicted of a

crime “relating to a controlled substance” under 8 U.S.C. § 1227(a)(2)(B)(i), and as an

alien convicted of an “aggravated felony” (a term which will be discussed infra) under 8

U.S.C. § 1227(a)(2)(A)(iii). There is an important difference in the two bases for

removal, because an alien removable only for a controlled substance violation may apply

for relief in the form of cancellation of the removal order, but one convicted of an

aggravated felony cannot. 8 U.S.C. § 1229b(a). The original order by an Administrative

Law Judge had held Petitioner removable on the ground that his prior state court

conviction had been for an aggravated felony.

While his administrative appeal was pending, Gonzalez went back to the state

court and moved to withdraw his guilty plea. He alleged that the plea had not been

knowingly entered because his lawyer had failed to advise him of the consequences of the

conviction on his immigration status and cited Colorado authority that this is part of

counsel’s duty. He also alleged that the state trial court had failed in its responsibilities

because the judge had also failed to advise him of the collateral consequences of his plea.

The motion to withdraw the guilty plea was resolved by a new plea agreement

providing that the previous counts would be dismissed, and that Gonzalez would plead

guilty to a newly filed charge of simple possession. Gonzalez believed (not entirely

without reason) that simple possession was not an “aggravated felony” for purposes of the
That ruling came in a decision applying the United States Sentencing Guidelines, 2

not in an immigration matter. The divergence that once existed in some circuits on the

issue, depending on whether the issue arose in an immigration context or under the

Guidelines, now seems untenable. See Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004).

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immigration laws and so he would become eligible to apply for cancellation of removal. 

But the issue was, until its recent resolution by the Supreme Court in Lopez v. Gonzales,

the cause of much confusion in the courts and the BIA.

The new state court conviction was entered in May 1999. Gonzalez then filed in

the pending BIA proceeding a motion to remand to the ALJ because he was no longer

deportable for an aggravated felony. However, the BIA did not act on this motion for

three years.

Gonzalez’ successful effort in state court to withdraw his plea to possession with

intent to distribute and to have his conviction reduced to one for simple possession was

motivated by the fact that the BIA had, at least since 1995, taken the position that simple

possession crimes were not aggravated felonies for purposes of a determination under 8

U.S.C § 1229b(a) of eligibility to apply for cancellation of removal. See In re L.G., 21 I.

& N. Dec. 89 (BIA 1995). In 1999, the BIA re-affirmed that view, see In re K-V-D, 22 I.

& N. Dec. 1163 (BIA 1999) (en banc), in spite of the fact that several circuits, including

this one, had ruled that a drug possession crime which is a felony under state law, even

when it would have been only a misdemeanor under federal law, is an aggravated felony,

see United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir. 1996).2

Then, in 2002, with petitioner’s appeal and motion to remand still pending before
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the BIA, that body in another case reversed its precedent and decided that state felony

convictions for simple possession were to be treated as aggravated felonies (except in

those circuits that had held to the contrary). In re Yanez-Garcia, 23 I. & N. Dec. 390

(BIA 2002). Soon after that, and in apparent conflict with that decision, the BIA finally

granted petitioner’s motion to remand. Petitioner’s victory was short lived, however, as

the agency moved for reconsideration, and in 2003 the BIA withdrew its prior order and

dismissed petitioner’s appeal.

Gonzalez then filed his habeas petition in the district court. The district judge

granted the petition, finding that the BIA had violated petitioner’s due process rights by

retroactively applying to his conviction its 2002 decision that the simple possession

conviction was an aggravated felony. The judge’s opinion relied mainly on INS v. St.

Cyr, 533 U.S. 289 (2001). The relief ordered was that Gonzalez be permitted to apply for

cancellation of removal and that his conviction not be treated as an aggravated felony. 

The government moved for reconsideration, which was denied. The government then

brought this appeal which, as noted, we have converted to a petition for review.

III

The series of cross-definitions which had to be traversed in resolving the question

of statutory construction underlying this matter led many courts, including this court, to

conclude that a state court conviction for a drug offense which would have been only a

misdemeanor under federal criminal law could also, in a different context, constitute an

aggravated felony under federal law. This certainly seemed on its face to be an anomaly;
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after all, in ordinary legal usage the terms “misdemeanor,” “felony,” and “aggravated

felony” describe a progression of increasing severity of offenses. Nevertheless, Congress

could, no doubt, define terms in different contexts in ways that lead to an incongruity like

this. The question was not whether Congress could do so, but whether it had in fact done

so. That question now has a definitive answer that controls this appeal. 

Under the Immigration and Nationality Act, as amended, the term “aggravated

felony” includes, inter alia, “a drug trafficking crime (as defined in section 924(c) of Title

18).” 8 U.S.C. § 1101(a)(43)(B). Under the cross-referenced provision, 18 U.S.C. §

924(c)(2), a “drug trafficking crime” is defined as “any felony punishable under the

Controlled Substances Act . . . .” This phrase, “punishable under the Controlled

Substances Act,” had been given two competing interpretations in the federal courts. We

need not trace the outlines of this debate here. Several courts have done so previously,

and the most complete discussion is probably that in United States v. Palacios-Suarez,

418 F.3d 692, 695-97 (6th Cir. 2005).

The debate has now been resolved. “[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 WL 3487031 (S.Ct., Dec. 5,

2006). The Lopez decision controls here. We have held that cases interpreting statutes

are “fully retroactive because they do not change the law, but rather explain what the law

has always meant.” United States v. Rivera-Nevarez, 418 F.3d 1104, 1107 (10th Cir.

2005). More generally, the Supreme Court has held that:
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When this Court applies a rule of federal law to the parties before it, that

rule is the controlling interpretation of federal law and must be given full

retroactive effect in all cases still open on direct review and as to all events,

regardless of whether such events predate or postdate our announcement of

the rule.

Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993). See also Olcott v.

Delaware Flood Co., 76 F.3d 1538, 1547 (10th Cir. 1996).

We believe that Harper and Olcott make it clear beyond doubt that we must apply

the Court’s Lopez decision in this matter. We are mindful that our holding contradicts our

holdings in United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir. 1996), and

several cases that had followed it. We conclude that Lopez has clearly overruled that line

of cases, notwithstanding that the issue in those cases arose under the sentencing

guidelines. “[W]e must interpret the statute consistently, whether we encounter its

application in a criminal or noncriminal context . . . .” Leocal v. Ashcroft, 543 U.S. 1, 11

n.8 (2004). The Court in Lopez made it clear that its holding was not limited to the

immigration context, we conclude. In addressing and rejecting an argument made by the

government in Lopez, the Court said that the reading of the statute the government was

proposing would make federal law in “alien removal,” and “the law of sentencing for

illegal entry into the country, [under] USSG § 2L1.2, dependent on varying state criminal

classifications” in contravention of Congressional intent. Lopez, 2006 WL 3487031 at

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IV

For the reasons given, we conclude that the petition for review must be granted. 
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Mr. Gonzalez must be permitted to apply for cancellation of removal, and his state court

conviction must not be treated as an aggravated felony.

IT IS SO ORDERED.

Appellant’s unopposed motion supplement the record is granted.