Immigration Law

CA2 on 'Small Amount' of Marijuana: Hylton v. Sessions

Hylton v. Sessions - "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."

[Hats off to 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!]