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Joseph Alexander James v. Eric H. Holder

October 19, 2012

JOSEPH ALEXANDER JAMES, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, RESPONDENT.



The opinion of the court was delivered by: Boudin, Circuit Judge.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before Boudin, Selya and Dyk,*fn1 Circuit Judges.

Joseph Alexander James, a native and citizen of Jamaica, was admitted to the United States on a visitor visa in January 1976; his status was adjusted to that of lawful permanent resident in July of the following year. In June 1997, he was arrested in West Hartford, Connecticut, and charged under state statutes related to the possession and sale of drugs. James moved to suppress evidence against him, and the proceedings ultimately reached the Connecticut Supreme Court. State v. James, 802 A.2d 820 (Conn. 2002).

On October 29, 2003, by agreement with the state, James entered a conditional plea of nolo contendere to two counts: one charged a violation of Conn. Gen. Stat. Ann. § 21a-277(b) (West 2003), a broad drug offenses statute covering inter alia the manufacture, distribution, possession with intent to sell, and sale of specified controlled substances including marijuana; the other charged criminal attempt to possess with intent to sell, id. § 53a-49 (defining conditions for attempt charges).

Pursuant to his plea, James was sentenced to 42 months in jail. Thereafter, he pursued on appeal a Miranda waiver issue which his plea agreement had reserved. The appeal failed, State v. James, 887 A.2d 923, 929 (Conn. App. Ct. 2006), and in November 2010, the Department of Homeland Security began removal proceedings against James, charging that he had been convicted of illicit trafficking in a controlled substance, which is an aggravated felony under the Immigration and Nationality Act ("INA"), and that he had been convicted of violating a state law relating to a controlled substance.*fn2

On January 28, 2011, James, represented by counsel, filed a responsive pleading seeking to terminate the removal proceedings or, in the alternative, to cancel removal pursuant to INA § 240A(a), 8 U.S.C. § 1229b(a). Section 240A(a) allows the Attorney General to cancel removal in the case of a non-citizen who (1) has been lawfully admitted as a permanent resident for at least five years, (2) has resided in the United States continuously for seven years after admission, and (3) has never been convicted of an aggravated felony. INA § 240A(a), 8 U.S.C. § 1229b(a).

Regardless of the ground for removal, a non-citizen seeking discretionary cancellation must submit an application (on a form known as Form EOIR-42), see 8 C.F.R. § 1240.20 (2012), and "[i]f an application . . . is not filed within the time set by the Immigration Judge, the opportunity to file that application . . . shall be deemed waived." 8 C.F.R. § 1003.31(c). James never submitted a Form EOIR-42, and does not contest the government's assertion that he has let the deadline pass.

On March 22, 2011, in advance of the individual calendar hearing, the immigration judge issued a written decision denying James' motion to terminate and indicating that James was removable both on the ground that he had been convicted of illicit trafficking--an aggravated felony--and also of an offense under a state law relating to a controlled substance. The IJ reaffirmed this decision at the April 6 individual calendar hearing, where he ordered James to be removed to Jamaica.

James sought review from the Board of Immigration Appeals ("BIA"); his brief to that body again made no mention of any application for cancellation. On August 15, 2011, the BIA issued a two-page written decision in which it affirmed the immigration judge's findings of removability on both grounds and dismissed James' appeal. James then sought review, albeit in the wrong circuit, and after transfer to this court the challenge to the BIA's order is now before us.

A conviction for "illicit trafficking in a controlled substance" is an aggravated felony warranting removal and precluding cancellation. See note 1, above. The Connecticut drug statute under which James was convicted, section 21a-277(b), states, in relevant part, that:

Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned .

Conn. Gen. Stat. Ann. § 21a-277(b).

Any controlled substance within the meaning of INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), is also automatically a controlled substance under the Connecticut statute. Conn. Gen. Stat. Ann. § 21a-243(g); cf. 18 U.S.C. § 924(c)(2); 21 U.S.C. § 812. Although the state can choose to make other drugs subject to its statute, see Conn. Gen. Stat. Ann. § 21a-243(c), James does not argue that it has in fact done so, cf. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007), nor have we found any evidence that it has done so.

The more difficult issue is whether James' conviction under section 21a-277(b) was for an offense that would also comprise "trafficking"--which is true of some but not necessarily all of the subordinate offenses listed in the Connecticut statute. The INA (through a series of cross-references) defines "illicit trafficking" to include the manufacture, distribution and dispensing of a controlled substance, as well as possession with intent to do any of these; INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), cf. 18 U.S.C. § 924(c)(2); 21 ...


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