Roman-Suaste v. Holder

A conviction for the possession of marijuana for sale, violating California Health & Safety Code § 11359, is a categorical aggravated felony and thus constitutes illicit trafficking of a controlled substance, and is an aggravated felony under Federal Law constituting a sufficient crime for removal from the United States.

Roberto Roman-Suaste was charged with being a removable alien in the United States due to his conviction for the possession of marijuana for sale under California Health & Safety Code (“CHSC”) § 11359. The Board of Immigration Appeals (“BIA”) held that the conviction is categorically an aggravated felony and therefore suffices for a crime sufficient for removal from the United States. Roman-Suaste contends that the crime under California law is not a categorical match with the similar federal law because “possession for sale” does not necessarily imply trafficking, and that aiding and abetting in California is broader than aiding and abetting under federal law. On appeal, the Ninth Circuit noted that a court will typically apply a categorical approach when determining whether the state statute defining the crime of conviction categorically fits within the “generic” federal definition of a corresponding aggravated felony. The panel was not swayed by Roman-Suaste’s arguments asking that they ignore the explicit definition of the federal “drug trafficking crime”. The panel noted that the federal offense’s mens rea requirement corresponds perfectly with California’s “possession with intent to distribute” offense. Additionally, the model aiding and abetting jury instruction in California does not materially differ from the jury instruction under federal law approved for use in the corresponding circuit. The panel held that the convictions for the possession of marijuana for sale under CHSC §11359, categorically qualifies as an aggravated felony under federal law. The BIA therefore did not err in concluding that Roman-Suaste was removable and ineligible for all forms of discretionary relief as an aggravated felon. PETITION FOR REVIEW DENIED.