Jermaine Dias v. Eric H. Holder Jr.

MEMORANDUM

Jermaine Dias petitions for review of the BIA’s dismissal of his appeal of an IJ’s decision. The BIA affirmed the IJ’s finding that Dias was removable under 8 U.S.C. § 1227 (a)(2)(A)(iii), as an alien convicted of an aggravated felony, based on his conviction for criminal sale of marijuana in the fourth degree in violation of New York Penal Law § 221.40.

As the BIA affirmed the order of removal only on the ground that the § 221.40 conviction was a conviction for an aggravated felony, whether that is so is the only issue properly before us. See Gonzales v. Thomas, 547 U.S. 183, 186 , 126 S.Ct. 1613 , 164 L.Ed.2d 358 (2006). Under the categorical approach of Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), which we use to determine whether the crime of conviction qualifies as an generic aggravated felony, Hernandez-Cruz v. Holder, 651 F.3d 1094, 1100-01 (9th Cir.2011), criminal sale of marijuana in the fourth degree does not constitute an aggravated felony. There are two possible routes through which a state drug crime can qualify as a generic drug trafficking felony: The crime can either contain a “trafficking element” because it…