United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Argued October 14, 2009

Decided November 4, 2009

      Amended November 5, 2009

Before

JOHN L. COFFEY, Circuit Judge

                   TERENCE T. EVANS, Circuit Judge

                              ANN CLAIRE WILLIAMS, Circuit Judge

No. 08‐4188

KURT GARBUTT,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Attorney General of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A036 991 429

AMENDED ORDER

Kurt Garbutt, a citizen of Belize, was found to be removable after an immigration

judge determined, applying this court’s precedent in Fernandez v. Mukasey, 544 F.3d 862 (7th

Cir. 2008), that his second state conviction for cocaine possession constituted an aggravated

felony.  The IJ further found that the aggravated‐felony conviction rendered Garbutt

ineligible to apply for cancellation of removal.  Garbutt petitions for review and makes two

primary arguments: (1) that Fernandez incorrectly fails to grant Chevron deference to the

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08‐4188 Page 2

BIA’s position that a second or subsequent conviction for possession of a controlled

substance is not an aggravated felony and (2) that, even if deference is not appropriate, we

should overrule Fernandez.

The INA does not permit aliens to apply for cancellation of removal when they are

found to have been “convicted of any aggravated felony.”  8 U.S.C. § 1229b(a)(3).  8 U.S.C.

§ 1101(a)(43)(B) defines “aggravated felony,” in part, as “illicit trafficking in a controlled

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

Section 924(c), in turn, defines a “drug trafficking crime” as “any felony punishable under

the Controlled Substances Act (CSA) (21 U.S.C. 801 et. seq.).”  18 U.S.C. § 924(c).  Courts

have interpreted the penultimate sentence of § 1101(a)(43), which provides that “[t]he term

[aggravated felony] applies to an offense described in this paragraph whether in violation of

state or federal law,” in part to mean that state offenses which correspond to CSA felonies

are aggravated felonies for immigration purposes.  Lopez v. Gonzales, 549 U.S. 47, 60 (2006).

While the CSA treats simple possession of cocaine as a misdemeanor, see 21 U.S.C.

§ 844(a) (setting a maximum term of imprisonment at “not more than 1 year”), the CSA

treats recidivist possession—a conviction for a possession offense after a prior possession

conviction has become final—as a felony, see id. (setting a maximum penalty for recidivist

possession at “not more than 2 years”).

We have held that a second state conviction for simple possession is an aggravated

felony under § 1101(a)(43)(B) because it corresponds to felony possession under the CSA, see

Fernandez, 544 F.3d at 874; United States v. Pacheco‐Diaz, 506 F.3d 545, 550 (7th Cir. 2007),

reh’g denied, 513 F.3d 776, 779 (7th Cir. 2008).  However, though the BIA has stated that it

will apply circuit precedent on the matter, it has also determined that, in the absence of a

controlling circuit precedent, IJs should not treat an alien’s second state simple‐possession

conviction as an aggravated felony unless the conviction contains a finding of recidivism.

See Matter of Carachuri‐Rosendo, 24 I. & N. Dec. 382 (BIA 2007) (en banc) (“Carachuri‐Rosendo

I”).

Garbutt first argues that we should defer to the BIA’s default position—that a second

state simple‐possession offense is not an aggravated felony unless the conviction contains a

specific finding of recidivism.  Garbutt concedes that we owe no deference to the BIA’s

interpretation of § 924(c) because it is a federal criminal statute.  He argues, however, that it

is not § 924(c), but the penultimate sentence of § 1101(a)(43) that acts as the “textual

linchpin” between the definition of aggravated felony and an alien’s state‐possession

conviction.  It is this sentence, Garbutt contends, that codifies Congress’ intent that only

state criminal convictions analogous to drug trafficking crimes are aggravated felonies.
No. 08‐4188 Page 3

Though the penultimate sentence of § 1101(a)(43) makes clear that state crimes can

be aggravated felonies, Garbutt argues that it is nonetheless ambiguous because it doesn’t

make clear what it means for a state criminal provision to be “described in” the provision.

Because the interpretation of the INA is entrusted to the BIA, Garbutt contends, courts

should defer to the BIA’s reasonable interpretations of the “fit” or mode of comparison that

IJs should apply to determine whether an alien’s second state‐possession conviction

corresponds to the CSA felony‐possession provision.  Though we have held three times that

a second state‐possession conviction is a felony under § 1101(a)(43)(B)‐‐twice in Pacheco‐Diaz

and once in Fernandez‐‐Garbutt nonetheless argues that we should defer to the BIA’s

position, see Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)

(stating that stare decisis cannot privilege circuit precedent over an agency interpretation

unless the statutory language unambiguously forecloses that interpretation).

Garbutt’s argument, although not without appeal, is not persuasive.  Courts

interpreting § 1101(a)(43)(B), including the Supreme Court, have reasoned, implicitly or

explicitly, that the interpretation of the fit between state criminal statutes and the CSA is

entrusted to the courts, not the BIA.  See, e.g., Alsol, 548 F.3d at 210 (“when the BIA

interprets state or federal laws . . . we review its interpretation de novo”).  Though the

hypothetical federal felony approach—where a court determines whether a state‐possession

conviction would be a felony under federal law—appears to have originated with the BIA,

see Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990), only the Second Circuit has suggested

that the BIA’s interpretation of the approach may be due deference, see Aguirre v. INS, 79

F.3d 315, 317 (2d Cir. 1996), and that suggestion may be questionable today, see Alsol v.

Mukasey, 548 F.3d 207, 210 (2d Cir. 2008) (“when the BIA interprets state or federal laws . . .

we review its interpretation de novo”).

This court’s Fernandez majority opinion and the Supreme Court’s opinion in Lopez

both implicitly hold, however, that the BIA’s position regarding the mode of comparison

between state criminal convictions and the CSA is owed no deference.  The majority in

Fernandez considered and rejected the interpretation offered by the BIA’s en banc majority in

Carachuri‐Rosendo I—that a second simple state‐possession offense was not an aggravated

felony.  Fernandez, 544 F.3d at 868 (“[w]e fail to see how the Board’s decision . . . affects the

outcome of this case”).  Necessary to the majority’s argument in Fernandez is the

understanding that the BIA’s position regarding mode of comparison is due no deference.

In any event, the Supreme Court’s Lopez opinion forecloses Garbutt’s argument.  In

Lopez, the Supreme Court construed § 1101(a)(43)(B) and § 924(c) to determine a slightly

different issue—whether a state felony conviction that corresponded to a misdemeanor
No. 08‐4188 Page 4

under the CSA was an aggravated felony for the purposes of § 1101(a)(43)(B).  Lopez, 549 U.S.

at 50.  In reaching its decision, the Court considered the meaning of the penultimate

sentence of § 1101(a)(43), which Garbutt claims is ambiguous.  The Court, however, did not

see any ambiguity in the provision.  Rather, it understood the provision to serve two

“perfectly straightforward” purposes: (1) demonstrating that generic crime descriptions

within § 1101(a)(43) were covered by the provision regardless of whether they were state or

federal crimes, and (2) confirming that a state offense whose elements include the elements

of a felony punishable under the CSA is an aggravated felony.  Id. at 57.

Lopez also specifically abrogated the BIA’s interpretive position.  Id. at 51‐52.  The

BIA had adopted the position of the majority of circuits—that a state felony which was a

misdemeanor under the CSA was an aggravated felony under § 1101(a)(43)(B).  Id.  The

Court, however, held the opposite, overruling the BIA and all circuits adopting the same

position.  Id. at 52.  Implicit in this holding is the fundamental understanding that courts

owe no deference to the BIA’s interpretation of the mode of comparison between state

criminal convictions and the CSA in determining whether a state conviction is an

aggravated felony under § 1101(a)(43)(B).  Thus, Garbutt is only partially correct when he

contends that Lopez did not “hold that this is not a Chevron situation.”  While Lopez did not

explicitly speak to deference, its approach unambiguously forecloses Garbutt’s deference

argument.  The Court also implicitly confirmed the BIA’s own position that the fit between

state crimes and federal crimes under § 1101(a)(43)(B) is a complicated question that

involves the interplay of federal and state criminal statutes that is entrusted to the courts.

See Lopez, 549 U.S. at 52 (citing Matter of Yanez‐Garcia , 23 I. & N. Dec. 390, 396‐97 (2002) for

the proposition that “BIA decisions would conform to applicable Circuit law”).

Garbutt also points to Negrete‐Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008), a

case in which we deferred to a BIA interpretation in what he calls “a nearly identical

situation.”  In Negrete‐Rodriguez, we considered whether to defer to the BIA’s interpretation

of 8 U.S.C § 1101(a)(43)(E)(ii), which treats firearm offenses “described in” 18 U.S.C.

§ 922(g)(1) as aggravated felonies for the purposes of the INA.  Negrete‐Rodriguez, 518 F.3d

at 500.  Section 922(g)(1) contains an interstate nexus element, which requires that a firearm

be possessed in or affect interstate commerce, to establish federal jurisdiction over the

firearm offense.  § 922(g)(1).  The alien in Negrete‐Rodriguez had been convicted under a state

statute that did not contain an interstate nexus element.  The court found rational and

reasonable the BIA’s determination that the interstate nexus element was not required for

the state conviction to count as an aggravated felony.  Id. at 503.  Garbutt argues that this

case calls for similar deference to the BIA’s determination of the proper “fit” between the

state statute of conviction and the federal offense under § 924(c).
No. 08‐4188 Page 5

While Negrete‐Rodriguez does use the language of deference, the case upon which it

most heavily relies, United States v. Castillo‐Rivera, 244 F.3d 1020 (9th Cir. 2001), does not.

In Castillo‐Rivera the Ninth Circuit held that interpretation to the contrary—requiring a state

offense of conviction to include a finding of an interstate nexus—would thwart

Congressional intent.  Castillo‐Rivera, 244 F.3d at 1023‐24.  No deference argument was

made or entertained.  The Negrete‐Rodriguez court considered the Ninth Circuit’s reasoning

“persuasive,” Negrete‐Rodriguez, 518 F.3d at 502, and appears to have used the language of

deference only because that was how the litigants framed the issue.

Furthermore, Garbutt may not rely on Negrete‐Rodriguez to urge us to defer to the

BIA’s interpretation.  That case specifically distinguished a case interpreting

§ 1101(a)(43)(B), Gonzales‐Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006), as involving only

“federal criminal law”—a matter entrusted to the courts rather than the BIA.  Negrete‐

Rodriguez, 518 F.3d at 501.  Gonzales‐Gomez, like Lopez, interpreted § 1101(a)(43)(B) to

determine whether a state felony corresponding to a federal misdemeanor was an

aggravated felony.  Gonzales‐Gomez, 441 F.3d at 533‐34.  And, like Lopez, Gonzales‐Gomez

stands for the proposition that the interpretation of this fit is entrusted to the court—that no

deference should be afforded the BIA’s interpretation.  Id.

Garbutt argues that we should reconsider Fernandez.  In support he offers three

arguments:  that Fernandez misreads Lopez and Taylor v. United States, 495 U.S. 575 (1990),

to permit the IJ to consider two records of conviction together; that permitting the IJ to make

recidivism determinations raises fairness concerns; and that the Fernandez approach will

lead to state convictions being analyzed differently from federal ones.

These arguments are not novel; all were addressed and ultimately rejected by the

majority in Fernandez.  544 F.3d at 870‐72, 872‐73, 873‐74.  Generally, principles of stare

decisis require that “considerable weight [be given] to prior decisions of this court unless

and until they have been overruled or undermined by the decisions of a higher court, or

other supervening developments.” Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006)

(citations omitted).  Unless Garbutt can offer a compelling reason to overturn circuit

precedent, he cannot prevail; he has provided no such reason.

Little has transpired since our Fernandez opinion.  While the Second Circuit has

joined the opposite side of the circuit split, see Alsol, 548 F.3d at 217, the Fifth Circuit

recently reaffirmed its supporting position en banc, see Carachuri‐Rosendo v. Holder, 570 F.3d

263, 264 (5th Cir. 2009) (en banc) (“Carachuri‐Rosendo II”).  Furthermore, we unanimously

denied rehearing en banc in Fernandez just last April.
No. 08‐4188 Page 6

We have considered this issue three times—twice in Pacheco‐Diaz and again in

Fernandez—and have found that a second state‐possession offense is an aggravated felony.

Since Garbutt’s deference argument is foreclosed and his alternative arguments have

already been rejected, his petition for review is DENIED.