Manuel Joaquin Oliveira Ferreira v. John Ashcroft, Attorney General

Manuel Oliveira is a permanent resident alien who was ordered removed to Portugal after his 1998 conviction in California state court for possession of methamphetamine. In a petition for a writ of habeas corpus, he argued that the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) erred in concluding that he was an aggravated felon, because his conviction was a “wobbler” offense that the state court had sentenced as a misdemeanor. The district court denied his petition, ruling that Oliveira’s conviction constituted an aggravated felony because it was a controlled substance offense that was punishable by more than one year’s imprisonment under state law. We reverse. Oliveira’s offense of conviction is not an aggravated felony because it would not be punishable as a felony under federal drug laws and does not contain a trafficking element.

FACTUAL AND PROCEDURAL BACKGROUND

Oliveira is a native and citizen of Portugal who was admitted to the United States in 1966, at age eleven, as a lawful permanent resident alien. Both of his children are United States citizens, and his parents and siblings are either United States citizens or permanent resident aliens. The…