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Filed January 2, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 00-3116

GARY STEELE
Appellant

v.

J. SCOTT BLACKMAN, INS, District Director for
Philadelphia District

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civil Action No. 99-cv-01256)
District Judge: Honorable Thomas I. Vanaskie,
Chief Judge

Argued September 11, 2000

BEFORE: McKEE, RENDELL and STAPLETON,
Circuit Judges

(Opinion Filed: January 2, 2001)

       Sandra L. Greene (Argued)
       140 Roosevelt Avenue, Suite 202
       York, PA 17404
       Attorney for Appellant.

       J. Justin Blewitt
       Office of U.S. Attorney
       235 North Washington Avenue
       William J. Nealon Federal Building
       Scranton, PA 18501
        and
       Alison Marie Igoe (Argued)
       John D. Williams
       Terri J. Scadron
       U.S. Department of Justice
       Office of Immigration Litigation
       P.O. Box 878
       Ben Franklin Station
       Washington, D.C. 20044
        Attorneys for Appellee

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Gary Steele is a former resident immigrant who has been
denied admission into the United States under 8 U.S.C.
SS 1182(a)(2)(A)(i)(II) and (a)(2)(C). The District Court found
that Steele is not entitled to apply for any waiver of
inadmissibility because he is an "aggravated felon."
Instrumental to this conclusion was the District Court's
determination that one of Steele's prior state misdemeanor
convictions constituted a conviction of an aggravated felony
under 8 U.S.C. S 1101(a)(43)(B). We will reverse.

I.

Gary Steele is a citizen of Grenada who has been a lawful
permanent resident of the United States since 1981. He has
resided in New York state and has worked there as an
electrician and musician. Steele has two daughters, four
sisters, and three brothers, all of whom are United States
citizens.

The "rap sheet" submitted to the immigration judge as
evidence of Steele's criminal record r eflects that Steele has

                                2.

three New York state misdemeanor convictions.1 Steele's rap
sheet indicates that in 1991, he was arrested for "Criminal
Sale of Marihuana," a class A misdemeanor under New
York's Penal Law S 221.40. We note that Penal Law S 220.40
defines "sale" to include "giv[ing] or dispos[ing] of to
another" so that one may be convicted of "criminal sale"
without evidence of a sale as commonly understood. Steele
pled guilty to this offense and was sentenced to probation
for three years. In 1993, Steele was again arr ested for the
same crime. Again, he pled guilty and paid a fine of five
hundred dollars. In 1994, Steele was arr ested for the
"Criminal Possession of Marihuana," a class A
misdemeanor under New York Penal Law S 221.05. Steele
pled guilty and was sentenced to community service. Steele
served no time in jail for any of these offenses.

On February 12, 1998, Steele traveled to Grenada to
attend the funeral of his mother. He r emained in Grenada
for one week and then returned to the United States. Upon
arrival, Steele was questioned by an Immigration and
Naturalization Service ("INS") officer who asked if Steele was
a Rastafarian2 and if he used marijuana. Steele denied
_________________________________________________________________
1. Steele, in a sworn statement, readily admitted the existence of these
convictions to the immigration authorities. His statement provides no
information about those convictions or the pr oceedings leading up to
them beyond that reflected on the "rap sheet."

2. Steele indeed is a Rastafarian, and this may explain his consecutive
drug offenses. (A. 54.) Rastafarianism is a r eligion which proclaims the
divinity of Haile Selassie, former Emper or of Ethiopia, and anticipates
the eventual redemption of its adherents from the "Babylon" of white
oppression.

       [Rastafarianism] is a religion whichfirst took root in Jamaica in the
       nineteenth century and has since gained adher ents in the United
       States. See Mircea Eliade, Encyclopedia of Religion 96-97 (1989). It
       is among the 1,558 religious groups sufficiently stable and
       distinctive to be identified as one of the existing religions in this
       country. See J. Gordon Melton, Encyclopedia of American Religions
       870-71 (1991). Standard descriptions of the r eligion emphasize the
       use of marijuana in cultic ceremonies designed to bring the believer
       closer to the divinity and to enhance unity among believers.
       Functionally, marijuana - known as ganja in the language of the
       religion - operates as a sacrament with the power to raise the
       partakers above the mundane and to enhance their spiritual unity.

                                3.

currently using marijuana but admitted that he was
arrested three times for marijuana-r elated misdemeanors.
Following the interview, the INS took Steele into custody
and served him with a formal charging document.

Steele was charged with inadmissibility into the United
States under both 8 U.S.C. S 1182(a)(2)(A)(i)(II), which
makes inadmissible any alien who has been convicted of "a
violation of . . . any law . . . of a State . . . r elating to a
controlled substance," and 8 U.S.C. S 1182(a)(2)(C), which
makes inadmissible any alien who "has been an illicit
trafficker in any controlled substance." At a hearing held on
April 16, 1998, an immigration judge sustained the charges
against Steele and ordered Steele r emoved to Grenada. The
immigration judge also concluded that because Steele had
committed an aggravated felony, he was barred by statute
from any discretionary relief fr om inadmissibility, despite
the fact that all of Steele's convictions constituted
misdemeanors under New York state law.

Steele appealed to the Board of Immigration Appeals
("BIA"), asserting that he had not committed an aggravated
felony and had a right to apply for a waiver and r elief from
deportation under 8 U.S.C. S 1182(c), 8 U.S.C.S 1182(h),
and 8 U.S.C. S 1229b(a). Over a year later , on May 7, 1999,
Steele's appeal was dismissed by the BIA. The BIA affirmed
the judgment of the immigration judge that Steele was
inadmissible and barred from any discr etionary relief
because he had committed an aggravated felony as defined
in 8 U.S.C. S 1101(a)(43).

On July 6, 1999, Steele filed a petition for habeas corpus
with the United States District Court for the Middle District
of Pennsylvania. Steele argued, inter alia, that the BIA erred
in determining that his misdemeanor drug convictions
amounted to an "aggravated felony." The District Court
determined that Steele failed to establish any legal error.
_________________________________________________________________
United States v. Bayer, 84 F.3d 1549, 1556 (9th Cir. 1996). Steele has
not claimed, nor has any court recognized, a legal right of Rastafarians
to use marijuana as a part of their religious observance. See id. at 1556-
59; McBride v. Shawnee County, 71 F. Supp. 2d1098, 1100 (D. Kan.
1999).

                                4.

Steele filed a timely notice of appeal to this Court and
was then deported to Grenada, pursuant to 8 C.F .R.
S 241.33 (2000) (authorizing the execution of a deportation
order once it becomes final).

II.

The District Court correctly concluded that it had
jurisdiction under 28 U.S.C. S 2241, despite the judicial
review limiting provisions of the Anti-T errorism and
Effective Death Penalty Act ("AEDPA"), Pub L. No. 104-132,
110 Stat. 1214, and the Illegal Immigration Refor m and
Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-
208, 110 Stat. 3009 (collectively "the 1996 Amendments").
We held in Sandoval v. Reno, 166 F .3d 225 (3d Cir. 1999),
that the 1996 Amendments did not foreclose district courts
from hearing petitions for habeas corpus following removal
orders where the petitioner has been convicted of an
aggravated felony. See Sandoval, 166 F .3d at 235 ("ADEPA
S 440(a) and IIRIRA S 309(c)(4)(G) ar e most reasonably
understood as foreclosing judicial review under the APA,
and not as relating to habeas jurisdiction under 28 U.S.C.
S 2241."). We based our decision in Sandoval on a line of
Supreme Court precedent extending back to Ex parte
McCardle, 74 U.S. 506 (1868), concluding that these cases
"establish the propositions that courts should not lightly
presume that a congressional enactment containing general
language effects a repeal of a jurisdictional statute and,
consequently, that only a plain statement of congr essional
intent to remove a particular statutory grant of jurisdiction
will suffice." Sandoval, 166 F.3d at 232.

Steele's removal was administered under the permanent
provisions of IIRIRA, which differ in some respects from the
transitional provisions analyzed in Sandoval. Section 1252
of Title 8 of the United States Code, as amended by IIRIRA,
might be construed to divest district courts of jurisdiction
to hear habeas corpus petitions where a petitioner has been
convicted of an aggravated felony offense. See 8 U.S.C.
S 1252(a)(1), (a)(2)(C), (b)(9). We r ecently considered this
possibility, however, and, in accordance with our reasoning
in Sandoval, determined that IIRIRA's permanent
provisions do not preclude district courts from exercising

                                5.

their jurisdiction to hear petitions for habeas corpus
following removal orders where the petitioner has been
convicted of an aggravated felony. Liang v. INS , 206 F.3d
308 (3d Cir. 2000). The District Court pr operly exercised
jurisdiction in accordance with our decision in Liang.

We possess appellate jurisdiction over the District Court's
denial of Steele's habeas corpus petition pursuant to 28
U.S.C. SS 1291 and 2253. We review de novo the District
Court's denial of habeas corpus relief and its interpretation
of the applicable statutes. See Anker Ener gy Corp. v.
Consol. Coal Co., 177 F.3d 161, 169 (3d Cir. 1999);
DeSousa v. Reno, 190 F.3d 175, 180 (3d Cir. 1999); Yang v.
Maugans, 68 F.3d 1540, 1546 (3d Cir . 1995). We review the
BIA's interpretation of the statutes which it administers
under a more deferential standard. On review, if a statute
administered by the INS is ambiguous, and the BIA has
provided a reasonable interpretation of its language, we
must simply ask whether the BIA's construction is a
permissible one. See Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).
Where the language of a statute is clear , however, the text
of the statute is the end of the matter. See Good Samaritan
Hosp. v. Shalala, 508 U.S. 402, 409 (1993).

III.

Before turning to the principal and dispositive issue in
this appeal, we must address a threshold issue concerning
the relevant sections of the Immigration Act. Steele seeks
relief from removal under 8 U.S.C.S 1182(c), 8 U.S.C.
S 1182(h), and 8 U.S.C. S 1229b(a). W e conclude that relief
under 8 U.S.C. S 1182(c) and 8 U.S.C. S 1182(h) is clearly
foreclosed. Only relief under 8 U.S.C.S 1229b(a) is
available.

Section 1182(c) of Title 8 provides that waivers of
inadmissibility might be granted to certain immigrants who
traveled abroad for brief periods of time. Section 1182(c)
was repealed by section 309(c) of IIRIRA, ef fective April 1,
1997, but by its terms is still applicable to certain removal
proceedings initiated before its ef fective date. IIRIRA
S 309(a). Because Steele's removal was initiated after April

                                6.

1, 1997, section 1182(c) is not an available avenue of relief
for Steele.

Steele argues that section 1182(c) must r emain available
in his case because its unavailability would constitute a
retroactive application of the per manent provisions of
IIRIRA to a conviction that preceded the Act and this result
was not intended by Congress. We find Steele's argument
foreclosed by our opinion in DeSousa v. Reno, 190 F.3d 175
(3d Cir. 1999). In DeSousa, the petitioner was a citizen of
Portugal who had been a lawful permanent r esident of the
United States since 1969. The petitioner had served four
and one-half years in prison on an aggravated assault
charge. DeSousa claimed that IIRIRA's amendments
restricting eligibility for section 1182(c) waivers should not
be construed to apply "retroactively" to his case, since his
convictions pre-dated IIRIRA. We disagr eed, finding it likely
that Congress had intended the amended version of section
1182(c) to apply to convictions preceding the amendment.
Id. at 186. Because the issue was not "absolutely clear,"
however, we proceeded to analyze whether the removal of
relief was retroactive in any sense. We concluded, in
accordance with our earlier opinion in Scheidemann v. INS,
83 F.3d 1517 (3d Cir. 1996), that because the statute
related only to the discretion of the Attorney General to
grant a future waiver, its eligibility r estriction had only
prospective impact. Id. at 187.

Steele suggests that because his case involved the
permanent, rather than the transitional pr ovisions of
IIRIRA, he faces a complete removal of waiver rather than
an eligibility restriction. Steele argues that this makes his
claim of retroactivity more plausible. We disagree. The
transitional and permanent provisions of IIRIRA were both
passed as part of the 1996 Amendments, and wer e
motivated by the same Congressional concer ns. Steele's
proffered distinction between the eligibility restrictions
under the transitional provisions and the complete repeal
under the permanent provisions is a distinction without a
difference; in either case, the availability of relief under
section 1182(c) is categorically foreclosed. 3
_________________________________________________________________

3. We acknowledge that this holding, though mandated by DeSousa, is
inconsistent with our sister Court's holding in Tasios v. Reno, 204 F.3d
544, 550-552 (4th Cir. 2000) (holding that the repeal of the 1182(c)
waiver under the permanent provisions of IIRIRA has retroactive effects).

                                7.

Relief under section 1182(h) is also foreclosed in Steele's
case. Under 8 U.S.C. S 1182(h) the Attor ney General may
waive the inadmissibility under 8 U.S.C. S 1182(a)(2)(A)(i)(II)
of an alien convicted of a controlled substance offense if
that alien's inadmissibility relates to a single offense of
simple possession of 30 grams or less of marijuana. Here,
Steele has admitted to committing more than one offense
for which he could be found inadmissible under 8 U.S.C.
S 1182(a)(2)(A)(i)(II). Thus, a waiver under section 1182(h) is
unavailable.

Of the three forms of relief sought by Steele, only 8
U.S.C. S 1229b(a) remains viable. That section provides that
the Attorney General "may cancel removal in the case of an
alien who is inadmissible or deportable from the United
States if the alien-- (1) has been an alien lawfully admitted
for permanent residence for not less than 5 years, (2) has
resided in the United States continuously for 7 years after
having been admitted in any status, and (3) has not been
convicted of any aggravated felony." Steele has met the first
two criteria required to make him eligible for waiver under
8 U.S.C. S 1229b(a), and insists that he has met the third
because he has not been convicted of an aggravated felony.
We will now proceed to examine this claim.4
_________________________________________________________________

4. Steele is no longer in federal custody, yet he seeks to appeal the denial
of his petition for a writ of habeas corpus. Although neither party argues
that Steele's appeal is moot, we are required to raise issues of standing
sua sponte if such issues exist. See FOCUS v. Allegheny County Court of
Common Pleas, 75 F.3d 834, 838 (3d Cir . 1996). A section 2241
petitioner must be incarcerated at the time his petition is filed. Though
continued custody is normally a requir ement for habeas corpus
jurisdiction thereafter, there ar e exceptions to this rule. Where a petition
for a writ of habeas corpus is filed and subsequently the petitioner is
released from custody, habeas corpus jurisdiction may be sustained
where serious collateral consequences flow fr om the conviction. See
Sibron v. New York, 392 U.S. 40, 55-56 (1968); United States v. Romero-
Vilca, 850 F.2d 177, 179 (3d Cir . 1988) (finding the possibility of
deportation to be a serious collateral consequence of a conviction).

Though the Supreme Court has disapproved of broad presumption of
collateral consequences without specific findings of injury-in-fact, see
Spencer v. Kemna, 523 U.S. 1, 7-17 (1998), we conclude that Steele has
alleged facts sufficient to show a continuing injury and serious collateral

                                8.

IV.

Section 1101(a)(43) of Title 8 defines the term
"aggravated felony" as used in the Immigration Act. It
provides that an aggravated felony is any "illicit trafficking
in a controlled substance (as defined in section 802 of Title
21), including a drug trafficking crime (as defined in section
924(c) of Title 18)." 8 U.S.C. S 1101(a)(43)(B).

Despite the "including" connector, the BIA has
interpreted this definition as encompassing two categories
of felony offenses: those involving "illicit trafficking" in a
controlled substance and those involving "drug trafficking
crime[s]" as defined in S 924(c). An offense falls within the
scope of the first category if 1) the offense constitutes a
felony under the law of the convicting sover eign and 2) the
offense involves "the unlawful trading or dealing of any
controlled substance. . . ." See Matter of Davis, 20 I. & N.
Dec. 536, 541 (BIA 1992). Essential to the concept of
_________________________________________________________________

consequences. Erroneous conviction of an aggravated felony will have
several continuing and serious legal consequences for Steele, including
serving as a permanent bar preventing his return to the United States to
visit his family. See 8 U.S.C. S 1182(a)(9)(A) (Supp. II 1996) (imposing a
permanent bar on admissibility for aggravated felons). A determination
that Steele's conviction did not constitute an aggravated felony would
alleviate many of these collateral effects. See generally Bruce Robert
Marley, Exiling the New Felons: The Consequences of the Retroactive
Application of Aggravated Felony Convictions to Lawful Permanent
Residents, 35 San Diego L. Rev. 855 (1998).

Our conclusion here finds support in the decisions of other courts. See
Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000) (presuming
collateral consequences from a determination of inadmissibility); Chavez
v. United States INS, 55 F. Supp. 2d 555, 556-57 (W.D. La. 1999) (finding
collateral consequences following deportation as a matter of law). Cf.
Ramirez v. INS, 86 F. Supp. 2d 301, 303-04 (S.D.N.Y. 1999) (finding that
the appeal of a deported pro se petitioner who could not be contacted
was moot). See generally Gerald L. Newman, Symposium: Jurisdiction
and the Rule of Law after the 1996 Immigration Act , 113 Harv. L. Rev.
1963, 1996-97 (2000) ("[E]xecution of a r emoval order will not ordinarily
moot the case in the Article III sense. For example, extinguishment of a
permanent resident's entitlement to live in the United States normally
results in continuing injury. More generally, the entry of a removal order
creates inadmissibility barriers to futur e visits.")

                                9.

"trading or dealing" is activity of a "business or merchant
nature," thus excluding simple possession or transfer
without consideration. Id.

Section 924(c)(2) of Title 18 defines "drug trafficking
crime" as meaning "any felony punishable under the
Controlled Substance Act[,] . . . the Controlled Substance
Import and Export Act[s] . . . or the Maritime Drug Law
Enforcement Act. . . ." Accordingly, the BIA finds within the
second category of aggravated felony convictions any federal
conviction for a violation of one of the specified statutes
that is a felony conviction under federal law, i.e., a
conviction for an offense punishable by imprisonment for
over one year. See 18 U.S.C. S 3559. More relevant for
present purposes, the BIA understands this second
category to encompass convictions for state of fenses,
however characterized by the state, if those of fenses would
be "punishable" under one of the three specified federal
statutes if federally prosecuted, so long as the hypothetical
federal conviction would be a felony under federal law, i.e.,
would be punishable by a term of imprisonment of over one
year.

This hypothetical federal conviction approach"require[s]
a comparison between the elements of the [state] drug
offense and [the elements of] a federal drug provision
referenced in 18 U.S.C. S 924(c)(2).. . ." Matter of Davis at
544. Since the basis for the incapacities under the
Immigration Act is "convict[ion] of an aggravated felony," 8
U.S.C. S 1229b(a), the Board looks to what the convicting
court must necessarily have found to support the
conviction and not to other conduct in which the defendant
may have engaged in connection with the offense. Thus
where, as here, the Service is relying on a state
misdemeanor conviction, the requirements of this second
category of "aggravated felony convictions" ar e "satisfied
[only] by proving a conviction that includes all the elements
of [a felony] offense for which an alien`could be convicted
and punished' under the cited federal laws." Matter of
Barrett at 174. Accordingly, the pr oposed "analogy between
state statutes and offenses under the cited federal statutes
will . . . be a matter of law." Id. at 177.

                                10.

V.

We find the BIA's interpretation of the statute
troublesome in a number of respects,5 and we specifically
_________________________________________________________________

5. Prior to 1990, 8 U.S.C. S 1101(a)(43) defined the term "aggravated
felony" in relevant part as "any drug trafficking crime as defined in
section 924(c)(2) of title 18, United States Code." Under this prior
language, 18 U.S.C. S 924(c)(2) clearly pr ovided the only source for the
definition of "drug trafficking crime."

Section 924(c)(2) of Title 18, which has r emained unchanged during
the relevant period, provides a sentence enhancement in federal
prosecutions for defendants who have used or carried a firearm during
or in relation to the drug trafficking crime that is the subject of the
prosecution. It is in this context that S 924(c)(2) defines "drug trafficking
crime" as "any felony punishable under" the three specified statutes.
Thus, if one literally substituted the text of S 924(c)(2) for the text "any
drug trafficking crime (as defined in section 924(c)(2)" in S 1101(a)(43)),
no state offenses were included in the concept of "aggravated felony."

In 1990, Congress decided that this portion ofS 1101(a)(43) should be
changed to make clear that state drug trafficking offenses would be
included. It did so by expanding the definition to encompass "any illicit
trafficking in any controlled substance .. . , including any drug
trafficking crime as defined in section 924(c) of title 18 . . ." and by
expressly stating that the "term [aggravated felony] applies to offenses
described in [paragraph 43] whether in violation of Federal or State law.
. . ." 8 U.S.C. S 1101(a)(43) (1992).

The text of the statute as amended, literally r ead, creates a single
category: state or federal offenses involving"illicit trafficking" (i.e., the
marketing of drugs). Felony violation of the thr ee designated federal
statutes are a subset of this single category. Under this literal reading of
the statute, "aggravated felony" does not include state or federal offenses
that do not involve the marketing of drugs.

Moreover, in fashioning its hypothetical federal felony approach, the
BIA reads the phrase "felony punishable under" as found in S 924(c)(2)
to mean "offense punishable as a felony under." It is only by so reading
the statute that the BIA is able to find state misdemeanor convictions to
be convictions of aggravated felonies. This r eading is inconsistent with
the reading of a number of Courts of Appeals in what seems to us an
analogous setting. In several cases involving sentencing enhancements,
Courts of Appeals have looked to state law classifications in order to
determine if a given offense constitutes a felony under S 924(c). See
United States v. Ibarra-Galindo, 206 F.3d 1337, 1339-40 (9th Cir. 2000)

                                11.

reserve decision on the validity of its hypothetical felony
approach. We may assume its validity for present purposes
because we conclude that application of that appr oach to
the facts of this case does not support the Service's
position.

One cannot suffer the disabilities associated with having
been convicted of an aggravated felony unless one has been
convicted of a felony. This, of course, means that there
must be a judicial determination beyond a r easonable
doubt of every element of a felony or a constitutionally valid
plea that encompasses each of those elements. As we have
explained, it is the BIA's understanding that these
determinations do not have to come in a pr oceeding on a
felony indictment if they are sufficient to satisfy the
elements of a hypothetical felony offense under the
Controlled Substances Act, i.e., an offense punishable
under that act by imprisonment for more than one year.

The fact that this hypothetical offense appr oach imposes
such grave consequences on factual determinations made,
or pleas entered, in misdemeanor proceedings is one of its
more troubling aspects. Misdemeanor char ges are
frequently not addressed by a defendant with the same care
and caution as a felony indictment with its mor e serious,
immediate consequences. This concern counsels, at a
minimum, that we insist on sufficient formality in the
misdemeanor proceeding to assure that each and every
element of the hypothetical federal felony is focused on and
specifically addressed in that proceeding.

All of the state criminal proceedings against Steele were
misdemeanor proceedings. Moreover, none of those
proceedings involved findings or a plea satisfying the
elements of an offense under the Contr olled Substances Act
punishable by imprisonment for more than a year . As the
District Court correctly determined, the elements of the
_________________________________________________________________

(collecting cases). This is plainly inconsistent with the BIA's current
jurisprudence in the deportation context, whichfinds state law
consequences irrelevant. See In re K-V-D-, Int. Dec. 3422, 1999 WL
1186808 (BIA 1999) (en banc) (Filppu, Board Member, dissenting)
(criticizing the BIA's current interpretation for this reason).

                                12.

misdemeanor offense of "Criminal Sale of Marijuana" are
met if the defendant has distributed 30 grams or less of
marijuana without remuneration. Looking to federal law,
the District Court also correctly concluded that
"distributing a small amount of marijuana for no
remuneration" is treated as simple possession under 21
U.S.C. S 844 and is punishable by a maximum term of one
year. See 21 U.S.C. S 841(b)(4). Based on these two
conclusions, the hypothetical felony approach should have
led the District Court to hold that Steele has not been
convicted of an aggravated felony within the meaning of the
Act.

The District Court reached its contrary conclusion only
by relying on a fact that was not focused on and specifically
addressed in any of the state proceedings. It reasoned as
follows:

       [Section 844 provides that] any person who violates
       this subsection may be sentenced to a term of
       imprisonment of not more than 1 year, and shall be
       fined a minimum of $1,000, or both, except that if he
       commits such offense after a prior conviction  under this
       title or title III, or a prior conviction for any drug,
       narcotic, or chemical offense char geable under the law
       of any State, has become final, he shall be sentenced
       to a term of imprisonment for not less than 15 days
       but not more than 2 years. . . .

The District Court thus concluded that Steele's second
misdemeanor conviction was for an offense punishable as a
felony under the Controlled Substances Act.

As the above observations of the District Court make
clear, the distribution of 30 grams or less of marijuana
without remuneration is not inherently a felony under
federal law. If a United States Attorney wants a felony
conviction, he or she must file an information under 21
U.S.C. S 851 alleging, and subsequently pr ove, that the
defendant has been previously convicted of a drug offense
at the time of the offense being prosecuted. While the
status of being "a one time loser" is not technically an
element of the offense proscribed byS 844, we agree with
the District Court that it can be treated as such. Since

                                13.

distribution of marijuana without remuneration is not
inherently a felony, it seems to us that the only alternative
to so regarding it consistent with the rule of lenity would be
to treat any S 844 offense in this context as a misdemeanor.

The problem with the District Court's appr oach is not
that it treated the status of being a "one time loser" as an
element of the hypothetical federal felony. Rather , the
problem is that Steele's "one time loser" status was never
litigated as a part of a criminal proceeding. That status was
not an element of the crime charged in the second
misdemeanor proceeding against him. As a r esult, the
record evidences no judicial deter mination that that status
existed at the relevant time. For all that the record before
the immigration judge reveals, the initial conviction may
have been constitutionally impaired. Even assuming that
Steele was prudent enough to insist on counsel in the
second misdemeanor proceeding and even assuming
counsel was perspicacious enough to focus on the potential
immigration consequences, the record simply does not
demonstrate that the prior conviction was at issue.

The Service understandably stresses that Steele admitted
to the immigration judge that there wer e three outstanding
state misdemeanor convictions. It suggests that on this
basis the immigration judge was entitled to conclude that
Steele was a "one time loser" when he committed his
second offense. Congress, however , has not left it up to the
immigration judge to determine whether Steele committed a
felony. As we stated at the outset of this portion of our
analysis, the aggravated felony disability under the Act
applies only if there has been a conviction  of a felony. It is
one thing to accept, as we do arguendo, that the conviction
may be of a hypothetical felony conviction; it would be
entirely another simply to ignore the r equirement that there
be a conviction.

VI.

Because we conclude that Steele has not been convicted
of an aggravated felony, hypothetical or otherwise, we will
reverse the judgment of the District Court and remand with
instructions to return this matter to the agency so that

                                14.

Steele may submit an application for cancellation of
removal in accordance with 8 U.S.C. S 1229b(a).

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                15.



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