Written by attorney Nicklaus James Misiti

Is a NY conviction for criminal sale of marijuana in the 4th degree an aggravated felony?

The question of whether a conviction under NY Penal Law §221.40 is an aggravated felony and as such precludes an application for Cancellation of Removal, was decided by the Second Circuit in Martinez v. Mukasey, 551 F.3d 113 (2nd Cir 2008). See also Thomas v. US Attorney General, No 08-4706 (October 23, 2010, 3rd Cir.) In Martinez, the Respondent was convicted twice for the same conviction at issue here, that being criminal sale of marihuana in the fourth degree, a misdemeanor, in violation of N.Y. Penal Law § 221.40. In Martinez, the issue was whether despite these convictions the Respondent was eligible to apply for Cancellation of Removal or whether he was ineligible as an aggravated felon. In Martinez, the Court held that §221.40 is not an aggravated felony and the burden is not on the Respondent convicted of such a crime to show that he is not an aggravated felon.

In their analysis the Second Circuit acknowledged that NYPL §221.40 is a broad statute, that covers “any form of transfer of a controlled substance," whether or not the transfer was for money. In fact the term “sell" as defined by the statute means, means not only to sell but also to “exchange, give or dispose of to another." NY Penal Law § 220.00(1). Merely giving or disposing of marijuana is not the equivalent of a federal drug felony. Steele v. Blackman, 236 F.3d 130 (3rd Cir. 2001). Likewise, since under the statute NYPL §221.40 could have been for any form of transfer of as little of two grams of marihuana, the minimum conduct of which Respondent may have been convicted is of “a different type more akin to simple possession than to provisions intended to cover traffickers." Martinez, citing Outen, 286 F.3d at 637. As the categorical approach requires, this court must “look no further than to the fact that [Respondent’s] conviction could have been for precisely the sort of nonremunerative transfer of small quantities of marihuana that is only a federal misdemeanor under 21 U.S.C. § 841(b)(4).

Further, in Martinez, the Second Circuit displaces any notion that the burden is on the Respondent to show that his conviction under NYPL §221.40 is not an aggravated felony by stating that Respondent is not required to prove, “how little marijuana he had or the nature of the transfer, so long as his conviction could have been based on a nonremunerative transfer of a small amount of marihuana."

Moreover, it is well established that in applying for Cancellation of Removal the applicant must show eligibility and as such cannot be an aggravated felon. Regarding any potential argument that because a Respondent is convicted under NYPL § 221.40 he has not met this burden in showing he is eligible for Cancellation of Removal, the Second Circuit stated.

“The Government makes one additional and rather startling argument. It contends that under 8 U.S.C. § 1228(c)(4), [Respondent] bears the burden of proving that he is eligible for Cancellation relief, he has to show not only that he has not committed an aggravated felony, but also that the particular conduct which led to his conviction in state court would not qualify as a federal felony. This argument flies in the face of the categorical approach insofar as it requires any alien seeking cancellation of removal to prove the facts of his crime to the BIA. Although an alien must show that he has not been convicted of an aggravated felony, he can do so merely by showing that he has not been convicted of such a crime. And, as we have discussed supra, under the categorical approach, a showing that the minimum conduct for which he was convicted was not an aggravated felony suffices to do this."

The Second Circuit goes on to hold that, “the BIA erred by placing the burden on [Respondent] to show that his conviction was the equivalent of a federal misdemeanor. We further hold that his conviction for a violation of NY Penal Law § 221.40 establishes nothing more than a crime punishable [as a Federal misdemeanor]."

Thus, under Martinez in the Second Circuit and Thomas in the Third, a conviction under NYPL § 221.40 is not an aggravated felony and he is eligible to proceed with his application for Cancellation of Removal.

Nicklaus Misiti is Chief Attorney and C.E.O. of Misiti Global, PLLC. Please feel free to contact Atty Nicklaus Misiti with any questions or for a free consultation regarding your immigration matter. He can be reached at 212 537 4407 or you can fill out the form on his website

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