Berhe v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-1870

AMBESSA HAGOS BERHE,

Petitioner,

v.

ALBERTO R. GONZALES, United States Attorney General,

Respondent.

No. 05-2239

HERMAN HENRY,

Petitioner,

v.

ALBERTO R. GONZALES, United States Attorney General,

Respondent.

ON PETITIONS FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Lipez, and Howard, Circuit Judges.

William W. Fick, with whom Foley Hoag LLP was on brief, for
petitioner Berhe.
Jeremiah Friedman, with whom Ilana Greenstein, Harvey Kaplan,
Maureen O'Sullivan and Kaplan, O'Sullivan & Friedman, LLP, were on
brief, for petitioner Henry.
 William E. Graves, Jr. and Graves & Doyle, on brief for
Committee for Public Counsel Services, National Immigration Project
of the National Lawyers Guild and Immigrant Defense Project of the
New York State Defenders Association, amici curiae in support of
petitioner in No. 05-2239.
John J. Andre, Senior Litigation Counsel, United States
Department of Justice, Office of Immigration Litigation, with whom
Peter D. Keisler, Assistant Attorney General, Civil Division,
Michael P. Lindeman, Assistant Director, and Ethan B. Kanter,
Senior Litigation Counsel, Office of Immigration Litigation, were
on brief in No. 05-1870, and with whom Peter D. Keisler, Assistant
Attorney General, Civil Division, Linda S. Wernery, Assistant
Director and William Minick, Attorney, Office of Immigration
Litigation, were on brief in No. 05-2239, for respondent.

September 26, 2006
 HOWARD, Circuit Judge. Herman Henry and Ambessa Hagos

Berhe1 each petition for review of Board of Immigration Appeals'

decisions ordering their removal. We have written a single opinion

dealing with those separate petitions because they both question

whether a state misdemeanor drug offense can constitute an

"aggravated felony" for the purposes of the Immigration and

Nationality Act (INA). See 8 U.S.C. § 1101(a)(43). Petitioners

face removal from the United States on the basis of their

respective state misdemeanor convictions for possession of a

controlled substance. The Board denied their applications for

discretionary relief from removal on account of their aggravated

felony convictions. The petitioners argue, inter alia, that their

respective state convictions should not be considered "aggravated

felonies" because Massachusetts, the convicting authority in both

cases, classified the crimes as misdemeanors.

We reject the petitioners' contentions that we may only

look to state law in such cases and reaffirm that a state

misdemeanor drug offense can amount to an "aggravated felony" if

that offense would have been a felony had it been charged under the

federal drug laws. Because Henry's offense -- possession with

intent to distribute -- would have been a felony had it been

1
Although we have indicated this petitioner's name consistent with
the administrative record, his brief states that his proper name is
"Ambessa Berhe Hagos." Whichever is correct, we shall refer to him
in this opinion simply as "Berhe."

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charged under federal law, we deny his petition. The record of

Berhe's state conviction, however, reveals that he was convicted

merely for simple possession, a misdemeanor under federal law. For

that reason, among others, we vacate the Board's order and remand

Berhe's case for further proceedings.

We begin our discussion by outlining the relevant

procedural and factual background of the respective petitions.

I.

A. Henry's petition

Henry is a Jamaican national who was admitted to the

United States as a permanent resident in 1984. In 2001, he pleaded

guilty in Massachusetts state court to possession of marijuana with

intent to distribute in violation of Mass. Gen. Laws ch. 94C, §

32C(a), a misdemeanor under Massachusetts law. Two years later,

Henry traveled abroad and was denied re-admission upon his return

to the United States. The Department of Homeland Security

(DHS)charged Henry with being removable because of his 2001 drug

conviction. See INA § 212(a)(2)(A)(i)(II), 8 U.S.C. §

1182(a)(2)(A)(i)(II) (declaring inadmissible "any alien convicted

of" violating a law "relating to a controlled substance"); INA §

212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C)(i) (declaring inadmissible

any alien "the Attorney General knows or has reason to believe . .

. is or has been an illicit trafficker in any controlled

substance").

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 At a hearing before an immigration judge, Henry admitted

the factual allegations charged by DHS and conceded removability on

the ground that he had violated a law relating to controlled

substances. He denied, however, that he was removable as an

"illicit trafficker" in controlled substances. He also filed an

application for cancellation of removal, arguing that his removal

would result in exceptional hardship to his family living in the

United States, who were all either citizens or lawful permanent

residents. See INA § 240A(a), 8 U.S.C. § 1229b(a)(3). The

immigration judge found Henry removable as charged. Although the

judge deemed Henry eligible for cancellation of removal, she denied

Henry's application as a matter of discretion. Both Henry and DHS

appealed to the Board.

DHS challenged the immigration judge's legal conclusion

that Henry was eligible for cancellation of removal. According to

DHS, Henry was ineligible for such relief because he had been

convicted of an "aggravated felony." See id. (providing the

Attorney General with discretion to cancel the removal of any alien

who "has not been convicted of any aggravated felony"); id. §

1101(a)(43)(B) (defining "aggravated felony").

The Board sustained DHS's appeal. It observed that,

under this court's precedent, a state drug offense qualifies as an

"aggravated felony" if it is punishable under one of the federal

drug enforcement statutes, including the Controlled Substances Act

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(CSA), and is a felony. See Amaral v. INS, 977 F.2d 33, 35 (1st

Cir. 1992). The Board found that possession of marijuana with

intent to distribute is punishable under the CSA by a maximum of

five years' imprisonment, see 21 U.S.C. § 841(a)(1), (b)(1)(D), and

would be classified as a felony under federal law, see 18 U.S.C. §

3559(a) (any offense punishable by more than one year in prison is

a felony). Because Henry's Massachusetts offense would have been

punishable as a felony under federal law, the Board concluded that

it was an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(B). The

Board therefore found Henry ineligible for cancellation of removal

and ordered him removed to Jamaica.

B. Berhe's petition

Berhe was born in 1978 in a city in Ethopia, which is now

a part of Eritrea. His birth mother gave him up for adoption

during the Ethiopian civil war and his adoptive parents thereafter

took him to Sudan. Four years later, in 1987, he and his adoptive

parents were admitted to the United States as refugees. In 1988,

Berhe's status was adjusted to lawful permanent resident. Since

his admission to the United States, Berhe has never returned to

Eritrea. Nor has he had any contact with any surviving family

members there.

In 1996, Berhe was convicted in a Massachusetts municipal

court for simple possession of crack cocaine under Mass. Gen. Laws

ch. 94C, § 34, and for assault and battery of a police officer, and

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was sentenced to six months' probation. In 2003, he pleaded guilty

to simple possession of crack cocaine in Massachusetts state

district court, and received a six-month suspended sentence. In

prosecuting the 2003 offense, the Commonwealth of Massachusetts did

not charge Berhe with a prior conviction because it did not seek a

recidivism-based sentence enhancement. See Mass. Gen. Laws ch.

278, § 11A (providing that if the government seeks enhanced

penalties because of a prior conviction, the defendant "shall be

entitled to a trial by jury of the issue of conviction of a prior

offense"). Both the 1996 conviction and the 2003 conviction were

misdemeanors under Massachusetts law. See Mass. Gen. Laws ch. 274,

§ 1 ("A crime punishable by death or imprisonment in the state

prison is a felony. All other crimes are misdemeanors.").

In 2004, DHS initiated removal proceedings against Berhe,

charging that he was removable because of his 2003 conviction for

simple possession of crack cocaine. See INA § 237(a)(2)(B)(i), 8

U.S.C. § 1227(a)(2)(B)(i) (providing that any alien convicted of

violating a law "relating to a controlled substance . . . is

deportable"). Berhe conceded removability, but submitted

applications seeking cancellation of removal, asylum, withholding

of removal, and relief under the Convention Against Torture (CAT).

Berhe's asylum application asserted that he would be persecuted on

account of his religion were he returned to Eritrea.

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 DHS subsequently filed a supplemental charge of

removability contending that Berhe's 2003 conviction was for an

"aggravated felony," see id. § 1227(a)(2)(A)(iii) ("Any alien who

is convicted of an aggravated felony . . . is deportable."). DHS

argued that because Berhe had a prior drug conviction, his 2003

misdemeanor simple possession conviction was an "aggravated felony"

under the INA. See id. § 1101(a)(43)(B). As a result, DHS argued,

Berhe was statutorily ineligible for the discretionary relief of

asylum or cancellation of removal. See id. §§ 1158(b)(2)(A)(ii),

1158(b)(2)(B)(i), 1229b(a)(3). DHS also argued that an aggravated

felony is presumptively a "particularly serious crime," which

rendered Berhe ineligible for withholding of removal. See id. §

1231(b)(3)(B)(ii).

Following a hearing, an immigration judge found Berhe

removable on the basis of the original controlled substance charge,

but not on the aggravated felony charge. The judge concluded that,

because Berhe's 2003 conviction was classified by Massachusetts law

as a misdemeanor, it could not be considered an aggravated felony.

The judge therefore evaluated Berhe's claims for relief and granted

him asylum, withholding of removal, and cancellation of removal,

but denied relief under the CAT. DHS appealed to the Board and

Berhe filed a cross-appeal from the denial of his CAT claim.

The Board sustained DHS's appeal. The Board stated that

it would apply the First Circuit's approach for determining whether

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the state conviction is an aggravated felony. The Board found that

Berhe's 2003 offense was punishable under federal law as a felony

because his prior drug possession offense converted his subsequent

possession conviction into a felony. Because Berhe had been

convicted of an aggravated felony, the Board found him ineligible

for asylum or cancellation of removal and therefore did not reach

the merits of those claims. The Board also reversed the

immigration judge's grant of withholding of removal on the ground

that Berhe had not shown "a clear probability of persecution on

account of any protected ground," and dismissed Berhe's cross-

appeal as untimely. The Board ordered Berhe removed to Eritrea.

II.

Henry and Berhe separately challenge the Board's

interpretation of "aggravated felony." They contend that the Board

erred by treating their state misdemeanor convictions as aggravated

felonies under the INA. Berhe additionally challenges the Board's

merits-based determination overturning the immigration judge's

decision granting him withholding of removal and contends that the

Board's refusal to consider his CAT claim as untimely was erroneous

as a matter of law. We begin with their common challenge to the

definition of "aggravated felony."

A. Aggravated Felony

Because this issue concerns the interpretation of

statutory provisions, viz., 8 U.S.C. § 1101(a)(43) and 18 U.S.C. §

-9-
924(c)(2), our review is de novo. Enwonwu v. Gonazales, 438 F.3d

22, 34-35 & n.12 (1st Cir. 2006). Although we ordinarily accord

deference to the Board's reasonable interpretation of a silent or

ambiguous provision of the INA, and the Board's choice of

methodology for resolving a given issue arising under the INA may

be regarded as an interpretation, we do not accord such deference

in an "aggravated felony" case because, as we describe below, see

infra at 13, the BIA has taken a passive stance with regard to the

interpretation of 8 U.S.C. § 1101(a)(43). Conteh v. Gonzales, No.

05-1282, --- F.3d ---, 2006 WL 2406942, at *4 n.3 (1st Cir. 2006).

The INA establishes a comprehensive list of offenses that

qualify as aggravated felonies. See 8 U.S.C. § 1101(a)(43)

(providing 21 subcategories of aggravated felony offenses, many of

which cross-reference to other U.S. Code provisions). Included in

this list is "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). . . . whether in

violation of State or Federal law." Id. § 1101(a)(43)(B) (emphasis

added). "Drug trafficking crime," in turn, means "any felony

punishable under the Controlled Substances Act (21 U.S.C. 801 et

seq.), the Controlled Substances Import and Export Act (21 U.S.C.

951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.

App. 1901 et seq.)." 18 U.S.C. § 924(c)(2) (emphasis added).

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 The Board has interpreted § 1101(a)(43)(B) to provide two

paths for arriving at an aggravated felony finding. The first

route is based on the "illicit trafficking in a controlled

substance" language, and is not relevant to these cases. See

Gerbier v. Holmes, 280 F.3d 297, 313 (3d Cir. 2002) (noting that

under the "illicit trafficking route" the state offense "must be a

felony under the law of the convicting sovereign" and "must contain

a trafficking element"). The second route is premised on the

language "drug trafficking crime" as defined in 18 U.S.C. §

924(c)(2). The Board concluded in Matter of Davis, 20 I&N Dec. 536

(BIA 1992), that in terms of the "drug trafficking crime" route,

any state drug offense, whether classified as a felony or

misdemeanor in that state, is an aggravated felony if the same

conduct would have been punishable as a felony if charged under one

of the three federal statutes enumerated in § 924(c)(2). Id. at

543; see also Gerbier, 280 F.3d at 306. This methodology is

sometimes referred to as the "hypothetical federal felony"

approach. See Gerbier, 280 F.3d at 306.

The Board later clarified that the term "any felony" in

§ 924(c)(2) refers to the definition of felony in 18 U.S.C. §

3559(a), which provides catchall classifications for crimes

codified in Title 18. In re L-G-, 21 I&N Dec. 89, 94 (BIA 1995);

18 U.S.C. § 3559(a) (classifying any offense that is not

specifically classified in the substantive section defining the

-11-
offense). Under that provision, a "felony" is any offense where

the maximum term of imprisonment authorized is more than one year.

18 U.S.C. § 3559(a). Thus, the Board ruled that a state drug

offense could constitute an aggravated felony, in terms of the

"drug trafficking crime" route, only if it is punishable by more

than one year of imprisonment under one of the three federal drug

statutes enumerated in § 924(c)(2). In re L-G-, 21 I&N Dec. at 96.

In other words, under the Board's strict "hypothetical federal

felony" approach, the phrase "drug trafficking crime" meant any

conviction punishable by more than one year of imprisonment under

one of the federal drug laws.

This approach has received mixed reviews from the circuit

courts. In the civil immigration context, several circuits have

adopted the Board's hypothetical federal felony approach. E.g.,

Gonzales-Gomes v. Achim, 441 F.3d 532, 534-36 (7th Cir. 2006);

United States v. Palacios-Suarez, 418 F.3d 692, 698-700 (6th Cir.

2005); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912-18 (9th

Cir. 2004); Gerbier, 280 F.3d at 308-12; Aguirre v. INS, 79 F.3d

315, 317-18 (2d Cir. 1996). Under this approach, the underlying

state classification of the offense is irrelevant. The circuits

that have adopted this approach emphasize that focusing solely on

federal law properly accounts for the need to apply the nation's

immigration laws uniformly, and that an approach that allows the

vagaries of state law to influence the determination would defeat

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this purpose. See, e.g., Achim, 441 F.3d at 535; Gerbier, 280 F.3d

at 311-12.

At least two circuits have taken a more flexible

approach. These circuits hold that a state conviction constitutes

an "aggravated felony" if it (1) is punishable under one of the

federal drug enforcement statutes, and (2) is a hypothetical

federal felony or is a felony under the law of the convicting

state. E.g., Lopez v. Gonzales, 417 F.3d 934, 936-37 (8th Cir.

2005), cert. granted, 126 S. Ct. 1651 (2006); United States v.

Hernandez-Avalos, 251 F.3d 505, 507-08 (5th Cir. 2001). This "dual

approach" derives from circuit decisions interpreting the meaning

of "aggravated felony" in the criminal sentencing context.2

In light of the split in circuit authority, the Board

retreated from strictly applying the hypothetical federal felony

2
The United States Sentencing Guidelines provide a sentence
enhancement for aliens who, after having been previously deported
following a conviction for an "aggravated felony," unlawfully
return to or remain in the United States. See U.S.S.G. §
2L1.2(b)(1)(C) (2005). The Guidelines in turn define an
"aggravated felony" by reference to the definition in the INA. See
id. § 2L1.2 cmt. n.3 (2005). The majority of circuits that have
confronted the "aggravated felony" question in this context have
utilized the dual approach, finding that a felony drug conviction
under state law can amount to a "drug trafficking crime" regardless
of how the crime would be classified under analogous federal law.
See, e.g., United States v. Sanchez-Villalobos, 412 F.3d 572, 574
(5th Cir. 2005); United States v. Ramirez, 344 F.3d 247, 251, 253-
54 (2d Cir. 2003); United States v. Wilson, 316 F.3d 506, 512-13
(4th Cir. 2003); United States v. Ibarra-Galindo, 206 F.3d 1337,
1339-40 (9th Cir. 2000); United States v. Briones-Mata, 116 F.3d
308, 309 (8th Cir. 1997). But see Palacios-Suarez, 418 F.3d at 697
-700 (adopting the hypothetical federal felony approach for both
immigration and sentencing cases).

-13-
approach in all cases, in favor of applying the approach of the

circuit in which the case before it originated. See In re Yanez-

Garcia, 23 I&N Dec. 390, 396-98 (BIA 2002). In those circuits that

have not definitively ruled on the issue, the Board follows the

position taken by the majority of the circuits in criminal

sentencing cases--the dual approach. Id.

In the present cases, the Board interpreted our precedent

as applying the dual approach. Accordingly, the Board found that

the petitioners' state drug offenses would constitute "drug

trafficking crimes" if they were (1) punishable under one of the

three statutes enumerated in § 924(c)(2), and (2) punishable as a

felony under either federal or state law. See Amaral v. INS, 977

F.2d 33, 36-37 (1st Cir. 1992) (finding that petitioner had been

convicted of an aggravated felony because his state drug offense

would be a felony under federal law); United States v. Restrepo-

Aguilar, 74 F.3d 361, 364-67 (1st Cir. 1996) (finding that the

defendant was an aggravated felon because his state offense was a

felony under state law and it violated the CSA). The Board found

Amaral to control in both cases.

In Amaral, the Board found that the petitioner was an

aggravated felon, and therefore deportable and ineligible for

discretionary relief, because of three state court convictions for

possession of cocaine. See 977 F.2d at 34. On review, we did not

resolve the merits of the Board's decision because we lacked

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jurisdiction. Id. at 37. Our jurisdictional ruling, however,

required us to consider whether the petitioner was an aggravated

felon under the INA. Id. at 35 (noting that if the petitioner was

an aggravated felon, his petition for review was untimely).3 In

that case, as here, the question was whether any of the

petitioner's state offenses was a "felony" under § 924(c)(2).

Because of § 924(c)(2)'s cross-reference to the CSA, we consulted

the CSA's definition of "felony" as "any Federal or State offense

classified by applicable Federal or State Law as a felony." Id. at

36 (quoting 21 U.S.C. § 802(13)). Although we noted that the

petitioner's offenses were felonies under state law, we undertook

a federal analysis of the petitioner's crimes. See id. at 36 &

n.3. We concluded that, although a simple possession offense is

ordinarily a misdemeanor under the CSA, see 21 U.S.C. § 844(a),

"one prior conviction turns possession into a felony since the

maximum penalty increases to over a year." Amaral, 977 F.2d at 34.

Thus, we ruled that, "under [a] literal application of §§ 844(a)

and 3559(a)," the subsequent possession conviction amounted to a

felony under federal law. Id.

3
Under the INA at that time, aggrieved aliens were generally
allowed 90 days to file a petition to review a final order of
deportation, but aggravated felons were given only 30 days. 8
U.S.C. § 1105a(a)(1) (repealed 1996). Under the current version of
the INA, all aliens must file their petitions "not later than 30
days after the date of the final order of removal." 8 U.S.C. §
1252(b)(1).

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 Applying Amaral, the Board found that Henry's

Massachusetts conviction, possession of marijuana with intent to

distribute, is punishable under the CSA by a maximum of five years'

imprisonment, see 21 U.S.C. § 841(a)(1), (b)(1)(D), and is

therefore a felony under federal law, see 18 U.S.C. § 3559(a). The

Board found that Berhe's 2003 conviction for simple possession,

although ordinarily punishable as a misdemeanor under federal law,

would be converted to a felony because of his previous possession

conviction. See Amaral, 977 F.2d at 36; 21 U.S.C. § 844(a). Thus,

the Board concluded that both Henry and Berhe had been convicted

for "drug trafficking crimes" as defined in § 924(c)(2).

Petitioners argue that, because their respective state

drug offenses were not classified as felonies by the convicting

authority, they should not be considered aggravated felonies.4

They contend that our holding in Restrepo-Aguilar mandates that the

law of the prosecuting jurisdiction controls for purposes of

determining whether an offense is a felony or misdemeanor. They

4
Henry also argues that his underlying state offense -- possession
of a controlled substance with intent to manufacture, distribute,
dispense or cultivate, see Mass. Gen. Laws ch. 94C, § 32C(a) -- is
not sufficiently analogous to any federal offense to be deemed
"punishable under" one of the federal drug enforcement statutes.
He argues that the Massachusetts statute to which he pleaded guilty
is broader in scope than the closest federal analogue. Henry's
argument is a nonstarter. Assuming arguendo that the Massachusetts
statute is broader, the particular conduct to which Henry pleaded
guilty, possession of a controlled substance with intent to
distribute, is clearly punishable under the CSA. See 21 U.S.C. §
841(a)(1).

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point out that in Restrepo-Aguilar, we found that a state felony

conviction was a "felony" for purposes of § 924(c)(2)

notwithstanding that it would have been a misdemeanor under federal

law. See Restrepo-Aguilar, 74 F.3d at 364-65. Thus, the

petitioners argue, we discarded the approach in Amaral (which they

characterize as dicta) in favor of an approach that looks to the

prosecuting jurisdiction to determine the classification of an

offense. They contend that the word "applicable" in § 802(13)'s

definition of "felony" requires us to consult the law actually

applied by the convicting authority.

The petitioners misread our precedent. First, Amaral's

ruling was not dicta. In Amaral, we were required to determine

whether the petitioner had been convicted of an "aggravated felony"

as defined in the INA, and in doing so, we employed a method that

looked to the offense's hypothetical status under federal law. See

id. at 36. Though we might have grounded our decision on the

state's classification of the offense, we did not do so. See id.

Cf. United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en

banc) (noting that when a federal appellate court "confronts an

issue germane to the eventual resolution of the case, and resolves

it after reasoned consideration in a published opinion, that ruling

becomes the law of the circuit, regardless of whether doing so is

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necessary in some strict logical sense").5 Moreover, subsequent

rulings of this court have followed the Amaral approach. Less than

two years after Amaral, we applied precisely the same analysis in

a sentencing case. See United States v. Forbes, 16 F.3d 1294, 1301

(1st Cir. 1994). We found that the defendant's first state

conviction for possession of a controlled substance would have

converted his second state possession conviction into a felony

under federal law. See id. (citing 21 U.S.C. § 844(a); 18 U.S.C.

§ 3559(a)). Although, as in Amaral, the underlying offenses were

also felonies under state law, our application of the aggravated

felony enhancement was predicated on our finding that the state

offense was punishable as a felony under federal law. See id.

Forbes also suggests that a felony classification under either

federal or state law will suffice to meet § 924(c)(2)'s "any

felony" requirement. See id.; see also United States v. Cuevas, 75

F.3d 778, 783 (1st Cir. 1996) (holding that the defendant's state

drug offense "undoubtedly qualifies as a felony" because it is

punishable as a felony under federal law).

5
It is of little import that we did not resolve the merits of the
Board's aggravated felony determination in Amaral. To be sure, the
"aggravated felony" question arose in a jurisdictional inquiry.
See 977 F.2d at 35. But the question presented, and the statutory
language at issue, were precisely the same as that considered here.
Our holding that the petitioner had been convicted of an
"aggravated felony" was expressly premised on a finding that the
offense was punishable as a felony under the CSA. See id. at 36.

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 Second, Restrepo-Aguilar did not overrule or undermine

Amaral. The defendant in Restrepo-Aguilar appealed the district

court's application of the aggravated felon sentence enhancement.

See 74 F.3d at 363 (citing U.S.S.G. § 2L1.2(b)(2) (1994)).

Although we recognized that the definition of "aggravated felony"

in U.S.S.G. § 2L1.2 was essentially the same as the definition in

the INA, we declined to adopt the Board's precedent which, at the

time, applied the strict hypothetical federal felony approach. See

id. 366-67. We noted that the Board's rationale was based

significantly on "policy concerns relating to the consequences

flowing from a deportation decision or a decision on an application

for asylum, without regard to any of the policies that inform the

meaning of 'aggravated felony' in the context of the statutory

prior offense enhancement or its implementation in the Sentencing

Guidelines." Restrepo-Aguilar, 74 F.3d at 366. Viewing Amaral as

enduring precedent, we were also careful to distinguish it based on

the differing contexts. Id. at 366 n.6.

More importantly, however, we noted that our approach in

Restrepo-Aguilar was entirely consistent with Amaral and Forbes.

See id. We observed that our cases interpreted the phrase "drug

trafficking crime" in § 924(c)(2) to encompass "two separate

elements: (1) that the offense be punishable under the Controlled

Substances Act (or one of the other two statutes identified); and

(2) that the offense be a felony." Id. at 364 (citing Forbes, 16

-19-
F.3d at 1301; Amaral 977 F.2d at 36). We further observed that §

924(c)(2)'s definition of "drug trafficking crime," "by its terms

includes 'any felony' that is criminalized under the CSA." Id.

Thus, we found that the definition "does not limit its application

to offenses that would be classified as felonies" under federal

law. Id. (emphasis supplied). Moreover, we stressed that the

CSA's definition of "felony" provided further support for the idea

that a felony designation under either federal or state law would

be sufficient. See id. ("[T]he CSA itself defines a felony as 'any

Federal or State offense classified by applicable Federal or State

law as a felony.'") (quoting 21 U.S.C. § 802(13)). It is clear we

read "applicable" to mean, not the law actually applied, but,

consistent with the ordinary meaning of the word, the law "capable

of being applied." Merriam-Webster's Collegiate Dictionary 56

(10th ed. 2001). Thus, we held that a state drug conviction may

constitute an aggravated felony if it was classified as a felony

under state law (even if it would have been a misdemeanor under

federal law), but we did not suggest that a state offense could

constitute an aggravated felony only if it was classified as a

felony under state law. See Restrepo-Aguilar, 74 F.3d at 364-66.

Accordingly, we conclude that the Board was correct to

employ the hypothetical federal felony methodology outlined in

Amaral. For the purposes of determining whether a state drug

offense is an "aggravated felony" under the INA, our circuit

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precedent permits an analysis that considers whether the underlying

offense would have been punishable as a felony under federal law.

As discussed above, we are not alone. While there is disagreement

concerning whether it is permissible to consult state law in making

the aggravated felony determination, as far as we can tell, all the

circuits to have considered the issue agree that a state drug

offense that would be punishable as a felony under the CSA is a

"drug trafficking crime" under § 924(c)(2). See supra at 11-12.

To our knowledge, no circuit has endorsed the approach urged here

-- requiring that the underlying offense be a felony under state

law.

B. Henry's Case

Applying Amaral's hypothetical federal felony approach,

the Board's determination that Henry is an aggravated felon is

clearly correct. Henry's state conviction for possession of

marijuana with intent to distribute, which would be punishable

under the CSA by a maximum of five years' imprisonment, see 21

U.S.C. § 841(a)(1), (b)(1)(D), is a felony under federal law, see

18 U.S.C. § 3559(a). The Board therefore properly determined that

Henry is ineligible for cancellation of removal. See 8 U.S.C. §

1229b(a)(3). We next consider Berhe's alternative arguments.

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C. Berhe's Arguments

1. Sufficiency of the evidence supporting the aggravated
felony finding

Berhe argues that, even applying the hypothetical federal

felony approach, his 2003 state drug possession conviction is not

a felony under federal law because the 1996 conviction was neither

charged nor proven during the 2003 proceeding. He notes that under

federal and Massachusetts law, a defendant must be charged with a

prior conviction before the government can seek a recidivism-based

sentencing enhancement. See 21 U.S.C. § 851; Mass. Gen. Laws ch.

278, § 11A; see also Prou v. United States, 199 F.3d 37, 42, 44

(1st Cir. 1999) (holding that federal courts “lack[] authority to

impose the statutory enhancement” where the government has not

complied with the “strictly enforced” § 851 charging procedures).

Berhe acknowledges that both the state and the federal government

(had it brought charges against him) could have sought a

recidivism-based sentence enhancement which, if successful, would

have resulted in a felony conviction under federal law. But,

because he was not so charged, and instead pleaded guilty only to

simple possession of a controlled substance (which is only a

misdemeanor under federal law because it is punishable by no more

than one year in prison, see 21 U.S.C. § 844(a)), the government

failed to establish that he was convicted of a hypothetical federal

felony.

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 We agree. Because Berhe’s 1996 conviction is not a part

of the record of the 2003 conviction, the government did not

establish that Berhe was convicted of a hypothetical federal

felony. As recently articulated, this circuit applies a "modified

categorical approach" for determining whether an alien has been

convicted of an aggravated felony. Conteh v. Gonzales, No. 05-

1282, --- F.3d ---, 2006 WL 2406942, at *6-7 (1st Cir. 2006).

Under this approach, "the government bears the burden of proving,

by clear and convincing evidence derived solely from the record of

the prior proceeding, that (i) the alien was convicted of a crime

and (ii) that crime involved every element" of one of the offenses

enumerated in 8 U.S.C. § 1101(a)(43). Id. at *7. When the statute

on which the underlying conviction rests necessarily involves all

of the elements enumerated in one of the INA's definitions of

aggravated felony, "proof of the fact of conviction suffices to

discharge the government's burden." Id. Where, however, the

underlying statute sweeps more broadly (i.e., encompasses crimes

that are not necessarily aggravated felonies under the INA), "the

government . . . must demonstrate, by reference only to facts that

can be mined from the record of conviction, that the putative

predicate offense constitutes a crime designated as an aggravated

felony in the INA." Id. (citing Taylor v. United States, 495 U.S.

-23-
575, 602 (1990); In re Pichardo-Sufren, 21 I&N Dec. 330, 335-36

(BIA 1996)).6

As noted above, the underlying state statute here

encompasses crimes that ordinarily would not constitute felonies

under either state or federal law. Compare Mass. Gen. Laws ch.

94C, § 34, with 21 U.S.C. § 844(a) (both setting a maximum term of

imprisonment of one year for "knowingly or intentionally . . .

possess[ing] a controlled substance"). Therefore, we must look to

the record of conviction of the alleged aggravated felony to

determine whether the government met its burden of proving that

Berhe had a prior conviction for a drug offense. See 21 U.S.C. §

844(a) (noting that if an offense for simple possession is

committed after a prior conviction for a drug offense has become

final, the maximum penalty increases to two years' imprisonment).

The record of Berhe's 2003 conviction in state district court --

the criminal complaint alleging misdemeanor possession of crack

cocaine and the official criminal docket indicating Berhe's plea of

guilty to that charge -- contains no reference to Berhe's 1996

conviction. Both the criminal complaint and the docket clearly

6
In Conteh, we outlined the contours of the "record of conviction."
We held that the alien's testimony at his removal hearing, where he
admitted to facts relevant to the aggravated felony determination,
was not a part of the underlying record of conviction and therefore
could not be considered in determining whether the conviction was
for an aggravated felony. Conteh, 2006 WL 2406942 at *9-10; see
id. at *9 ("[T]he record of conviction cannot encompass after-the-
fact statements made in a separate and subsequent proceeding.").

-24-
indicate that Berhe was charged and convicted of the misdemeanor

crime (under both Massachusetts and federal law) of simple

possession of a controlled substance punishable by no more than one

year in prison.7

Because the record of conviction here contains no

reference to Berhe's prior conviction, or to any other factor that

would hypothetically convert his 2003 state misdemeanor conviction

into a felony under federal law, the Board erred by concluding that

his 2003 conviction was an "aggravated felony" under 8 U.S.C. §

1101(a)(43). The Board therefore also erred in concluding that

Berhe is ineligible for asylum and cancellation of removal. Hence,

we must remand so that it may consider the merits of those claims.

See INS v. Ventura, 537 U.S. 12, 16 (2002) (noting that a court of

appeals should ordinarily "remand a case to an agency for decision

of a matter that statutes place primarily in agency hands").

2. Withholding of removal

Berhe also argues that the Board erred in reversing the

immigration judge's decision granting him withholding of removal.

7
Amaral does not control our consideration of this issue. Although
it appears that the Board in Amaral found the existence of prior
convictions based on the petitioner's admissions in removal
proceedings, 977 F.2d at 34, it is not clear whether the petitioner
simply testified to the fact of these prior convictions or
stipulated to their existence and their validity. See Conteh, 2006
WL 2406942 at *9 n.5. In any event, it does not appear that this
issue was litigated in Amaral. Whatever the basis of our finding
that the petitioner had prior convictions in that case, Conteh now
limits our examination to the record of conviction.

-25-
He contends that the Board did not base its decision on substantial

evidence and failed to explain sufficiently why it chose to

disregard the immigration judge's conclusions. At oral argument,

and in a supplemental post-argument filing, the government argues

that the Real ID Act of 2005 strips us of jurisdiction to review

Berhe's claim for withholding of removal. See 8 U.S.C. §

1252(a)(2)(C) (divesting jurisdiction to review "any final order of

removal against an alien who is removable by reason of having

committed a criminal offense" in violation of a law relating to

controlled substances). Because Berhe was found removable based on

a controlled substance offense, the government argues, this court

may review only "questions of law" and "constitutional claims."

Id. § 1252(a)(2)(D) (preserving our jurisdiction for such claims).

The government contends that Berhe's withholding of removal claim

does not present any legal or constitutional issues. Berhe

counters that the adequacy of the Board's reasoning is a legal

question that we may review. Berhe is correct. See Enwonwu v.

Gonzales, 438 F.3d 22, 35 (1st Cir. 2006)

During removal proceedings, Berhe, appearing pro se,

asserted that he feared religious persecution on the basis of his

status (or imputed status) as a member of the Jehovah's Witnesses.

The immigration judge found "no evidence that this would be held

against him" in Eritrea, but granted Berhe's application for

withholding of removal on another ground. The judge found that

-26-
documentary evidence (presumably the State Department country

reports) established that conditions in Eritrea are "generally

bad," that the ruling regime is "quite brutal," and that "people

who are deemed sympathetic in any way to critics [of the

government] are detained and subjected to severe mistreatment."

Thus, crediting Berhe's testimony that he "came to the United

States as a refugee and has continued to seek asylum even after

becoming removable," the judge found that, upon return to Eritrea,

he would likely be targeted for persecution "as a suspected critic

of the Eritrean government."

On appeal, the Board found that "there is no basis to

find that it is more likely than not that the respondent would be

subjected to persecution based upon the religion of his adoptive

parents." Nowhere, however, did the Board engage the immigration

judge's rationale for granting Berhe's application for withholding

of removal.8

8
In noting that there was no allegation of past persecution, the
Board did call into question Berhe's refugee status on his
admission to the United States, noting the lack of "information .
. . explain[ing] the basis for this admission." But regardless of
the reason for Berhe's refugee status, the record is uncontradicted
that Berhe was admitted as a refugee. In fact, at the removal
hearing, the government proffered documents, relating to Berhe's
approved application for adjustment to lawful permanent resident
status, that establish that he was admitted as a refugee at New
York City in 1987.
We note that the Board also misstated Berhe's claim for
relief. On our review of the record, we see no allegation that he
feared persecution because his adoptive parents were Jehovah's
Witnesses. Rather, he claims that it was his birth mother who was
a Jehovah's Witness.

-27-
 We agree with Berhe, therefore, that this case is

controlled by Enwonwu. See 438 F.3d at 35 (holding that, where the

Board's reversal of an immigration judge's grant of relief under

the CAT only addressed one of the two findings made by the judge in

support of its decision, the Board's opinion was "insufficiently

reasoned as a matter of law"). Although we have previously noted

that the Board "need not spell out every last detail of its

reasoning where the logical underpinnings are clear from the

record," there is a heightened obligation "to offer more

explanation when the record suggests strong arguments for the

petitioner that the [Board] has not considered." Id. (quoting

Sulaiman v. Gonzales, 429 F.3d 347, 350 (1st Cir. 2005)). We agree

with Berhe that there was adequate support in the record for the

immigration judge's finding, and that it was therefore an error of

law for the Board to reverse without addressing that finding. The

proper course, therefore, is to remand to the Board for further

consideration of Berhe's claim for withholding of removal. See

id.; see also Ventura, 537 U.S. at 16-17.

3. Convention Against Torture

Finally, Berhe argues that the Board erred in refusing to

consider his claim for relief under the CAT. The Board held that

Berhe had waived his CAT claim by failing to inform the immigration

judge of his intention to appeal. See Matter of Shih, 20 I&N Dec.

697, 698-99 (BIA 1993). The Board further noted that Berhe's

-28-
Notice of Appeal, which was filed six months after the immigration

judge's decision, was untimely. See 8 C.F.R. § 1003.38(b). In his

petition, Berhe contends, and the government concedes, that the

immigration judge failed to advise Berhe of his right to appeal the

decision to deny him protection under the CAT. He argues,

therefore, that he could not have knowingly and intelligently

waived his right to appeal. We agree.

The regulations governing immigration proceedings require

that "[a] party affected by a decision of an immigration judge

which may be appealed to the Board . . . shall be given notice of

the opportunity for filing an appeal." Id. § 1003.3. Cf. 8 U.S.C.

§ 1229a(c)(5) (requiring the immigration judge to "inform the alien

of the right to appeal" from an order of removal). The Board has

previously recognized that any waiver of the right to appeal must

be made "knowingly and intelligently." In re Rodriguez-Diaz, 22

I&N Dec. 1320, 1322 (BIA 2000); see also Shih, 20 I&N Dec. at 698-

99 (finding waiver where the alien was specifically informed of the

consequences of his waiver).

In this case, the immigration judge both failed to inform

Berhe of his right to appeal and affirmatively suggested that Berhe

had no reason to appeal. At the close of proceedings, after having

asked DHS's attorney whether she wished to appeal, the immigration

judge told Berhe: "I've granted your applications for relief. Did

you understand all of that?" Further assuring Berhe of the

-29-
completeness of his victory, the judge stated: "If the Government

does not actually file an appeal, you will be released." No

reference was made to any right of cross-appeal or to the peril

that Berhe's inaction could result in his waiving the CAT claim.

Nor was any subsequent notice sent to Berhe informing him of his

right to appeal.

In these circumstances, the Board erred by ruling that

Berhe "knowingly and intelligently" waived his right to appeal the

rejection of his CAT claim. The equities weigh especially in

Berhe's favor, given that he was not represented by counsel. See

Rodriguez-Diaz, 22 I&N Dec. at 1323 (stressing that "in cases

involving unrepresented aliens, more detailed explanations [of the

alien's right to appeal] are often needed"). Nor should Berhe be

faulted for the late filing of his Notice of Appeal. The Board's

bar against hearing untimely appeals is inapplicable in these

circumstances. See Zhong Guang Sun v. United States Dep't of

Justice, 421 F.3d 105, 108-09 (2d Cir. 2005) (collecting cases

recognizing that the Board's bar has an exception for unique or

extraordinary circumstances beyond the alien's control); Vlaicu v.

INS, 998 F.2d 758, 760 (9th Cir. 1993) (per curiam) (holding that

the Board "may have jurisdiction to hear an otherwise untimely

appeal" in "unique circumstances," such as when the appellant "was

misled by the words or conduct of the [immigration] court")

(internal quotation marks omitted). And the government should not

-30-
be allowed to benefit from the immigration court's failure to

follow its own regulations. Nelson v. INS, 232 F.3d 258, 262 (1st

Cir. 2000) ("An agency has the duty to follow its own federal

regulations," and failure to follow those regulations "can lead to

reversal of an agency order and a new hearing"). We believe that

such a remand is the proper course here.

III.

For the reasons stated, Henry's petition for review is

denied, and Berhe's petition is granted. The Board's order of

removal in Berhe's case is vacated, and the case is remanded to the

Board for further proceedings consistent with this opinion.

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