In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1130
MING WEI CHEN,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A047‐862‐290
____________________
ARGUED JULY 7, 2017 — DECIDED JULY 20, 2017
____________________
Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit
Judges.
WOOD, Chief Judge. Ming Wei Chen, a lawful permanent
resident originally from China, was ordered removed from
the United States as an alien convicted of a controlled‐sub‐
stance crime, see 8 U.S.C. § 1182(a)(2)(A)(i)(II). The Board of
Immigration Appeals decided that Chen is ineligible for can‐
2 No. 17‐1130
cellation of removal because of an Illinois conviction for pos‐
sessing more than 30 but not more than 500 grams of mariju‐
ana, 720 ILCS § 550/5(d). This, the Board thought, qualifies as
an aggravated felony; if that is correct, then Chen is indeed
ineligible for the relief he seeks. 8 U.S.C. § 1229b(a). Chen
seeks review of that ruling in this court. We conclude that the
Board misapplied the Supreme Court’s decision in Moncrieffe
v. Holder, 133 S. Ct. 1678 (2013), when it characterized Chen’s
conviction under ILCS § 550/5(d) as an aggravated felony. We
therefore grant his petition for review and return the case to
the agency for further action.
I
Chen was 11 years old when his parents brought him to
the United States and he became a permanent resident. About
nine years later, in 2010, he pleaded guilty to possessing with
intent to deliver more than 10 but not more than 30 grams of
marijuana, 720 ILCS § 550/5(c), and he was sentenced to
24 months’ probation. In 2011 he pleaded guilty to possessing
with intent to deliver more than 30 but not more than
500 grams of marijuana, 720 ILCS § 550/5(d), after police lo‐
cated in his vehicle 462.8 grams of marijuana that he intended
to sell. He again was sentenced to 24 months’ probation. In
2016 he came to the attention of immigration officials when
he went through U.S. customs as he was returning from a trip
to China. Immigration officials initiated removal proceedings
that charged him with being inadmissible and removable on
account of his 2010 and 2011 Illinois marijuana convictions,
see 8 U.S.C. § 1182(a)(2)(A)(i)(II).
Chen conceded his removability, but he argued that he
was eligible for cancellation of removal, see 8 U.S.C.
No. 17‐1130 3
§ 1229b(a). Section 1229b(a) provides that the Attorney Gen‐
eral may cancel the removal of a person who has been a lawful
permanent resident for at least five years, has resided in the
United States continuously for seven years after being admit‐
ted, and has not been convicted of an “aggravated felony.”
Only the last criterion is at issue here: Chen contended that
his 2011 conviction for possessing marijuana with intent to
deliver does not qualify as an aggravated felony.
Aggravated felonies, for immigration purposes, include
“drug trafficking crime(s) (as defined in section 924(c) of
Title 18).” 8 U.S.C. § 1101(a)(43)(B). That definition includes
“any felony punishable under the Controlled Substances Act
[CSA],” and that Act categorizes as a felony any offense for
which the “maximum term of imprisonment authorized” is
more than one year, 18 U.S.C. § 3559(a)(5), (6). To determine
whether a state conviction qualifies as an aggravated felony,
the court must consider “whether the state statute defining
the crime of conviction categorically fits within the generic
federal definition.” Moncrieffe, 133 S. Ct. at 1684 (quotation
marks omitted). In addition, and critically for this case, the
Supreme Court said in Moncrieffe that the court “must
presume that the conviction rested upon [nothing] more than
the least of th[e] acts criminalized, and then determine
whether even those acts are encompassed by the generic
federal offense.” Id. (quotation marks omitted).
Chen argued that his 2011 conviction is not an aggravated
felony because 720 ILCS § 550/5(d) punishes conduct that
would be a misdemeanor under the CSA. Moncrieffe, he points
out, held that a Georgia conviction for possession with intent
to distribute marijuana was not an aggravated felony. In that
case, the fact of the defendant’s conviction “standing alone,
4 No. 17‐1130
[did] not reveal whether either remuneration or more than a
small amount of marijuana was involved. It is possible neither
was.” Id. at 1686. Applying the categorical approach, the
Court thus concluded that Moncrieffe had not been convicted
of an aggravated felony, because the state’s statute defined his
crime of conviction broadly enough to punish federal mariju‐
ana misdemeanors. See 21 U.S.C. § 841(b)(4) (stating that any
person who distributes “a small amount of marihuana for no
remuneration shall be treated as provided in” 21 U.S.C. § 844,
which means for our purposes punished as a misdemeanant.)
In reaching that decision, the Court expressly declined to de‐
fine the term “small amount.” Id. at 1686 n.7. It took this posi‐
tion even as it quoted from the Board’s decision in Matter of
Castro Rodriguez, 25 I & N. Dec. 698, 703 (BIA 2012), where the
Board said that 30 grams “serve(s) as a useful guidepost” for
what counts as “small.” 133 S. Ct. at 1686 n.7.
Chen maintained that the least of the acts criminalized by
720 ILCS § 550/5(d) is the possession of a hair over 30 grams—
call it 30.0001 grams. He argued that this weight is not “mark‐
edly different” from 30 grams. Furthermore, he emphasized,
the 30‐gram level was only a guidepost, not a rigid line, and
“more than” 30 grams could be just a tiny amount above that
mark.
The Immigration Judge decided that Chen was statutorily
ineligible for cancellation of removal. The IJ concluded that
Chen’s 2011 conviction was categorically an aggravated fel‐
ony. She reasoned that none of the conduct that the state stat‐
ute prohibited would fall within the federal misdemeanor
“exception” discussed in Moncrieffe, because the Illinois law
covers “more than 30 grams but not more than 500 grams” of
cannabis. Anything “more than 30 grams,” the IJ thought, is
No. 17‐1130 5
necessarily more than a “small amount” as Moncrieffe used the
term.
Chen appealed to the Board, arguing that the IJ erred in
deciding that his 2011 conviction was an aggravated felony.
He reiterated that under the CSA just over 30 grams could be
a small amount, consistent with “social sharing.” The Board
dismissed his appeal. It agreed with the IJ that Chen’s 2011
conviction qualified as an aggravated felony because, it
thought, any amount of marijuana in excess of 30 grams, even
just the 30.0001 Chen postulated, was automatically more
than the small amount “contemplated by the Court in
Moncrieffe,” and thus the “small amount” exception in
21 U.S.C. § 841(b)(4) did not apply.
II
Chen’s petition focuses on the issue he has raised through‐
out these proceedings: whether the Board erred in deciding
that his conviction under 720 ILCS § 550/5(d) for possessing
more than 30 grams of marijuana necessarily involves con‐
duct that would be a felony under the CSA. (At this point, no
one is arguing that the 2010 conviction for “more than 10 but
not more than 30 grams” provides an alternative basis for the
Board’s decision.) Chen maintains that the statute under
which he was convicted in 2011 covers conduct treated as a
misdemeanor under the CSA pursuant to section 841(b)(4),
because it would be possible to violate 720 ILCS § 550/5(d) by
distributing only 30.0001 grams of marijuana for no remuner‐
ation. See also 21 U.S.C. §§ 844(a), 844a(a). Nothing in
720 ILCS § 550/5(d) requires payment, he notes, and
Moncrieffe indicates that “just over 30 grams” may be a “small
amount” of marijuana under the CSA. He contends that the
Board and the IJ, by deciding that any amount even a shade
6 No. 17‐1130
over 30 grams cannot be “small,” improperly treated the
Board’s 30‐gram “guidepost” as a rigid upper limit, contrary
to the ruling in Moncrieffe. The government argues that the
Board and IJ correctly applied the CSA because “more than
30 grams” exceeds the Board’s guidepost.
This court has not had the occasion in an immigration case
to define the term “small amount” as used in section 841(b)(4)
of the CSA. This is a legal question over which we have juris‐
diction, see 8 U.S.C. § 1252(a)(2)(D), and our review is de novo.
See Delgado v. Holder, 674 F.3d 759, 766 (7th Cir. 2012). Con‐
gress left it to the courts to decide this question. United States
v. Damerville, 27 F.3d 254, 258–59 (7th Cir. 1994). In 1994, we
held in Damerville that 17.2 grams of marijuana was not
“small” where the facts showed that it was being smuggled
into a prison. Damerville is of limited value, however, because
it was decided during an earlier era before the Supreme Court
rejected a fact‐specific approach and substituted the categori‐
cal approach it now requires. See Esquivel‐Quintana v. Ses‐
sions, 137 S. Ct. 1562, 1567–68 (2017); Moncrieffe, 133 S. Ct. at
1684. More recently, in the context of determining relevant
conduct for the sentencing guidelines, we commented that
two ounces (56.4 grams) of marijuana can be a small amount
consistent with personal use. See United States v. Olson,
408 F.3d 366, 374 (7th Cir. 2005) (remanding for resentencing
because district court’s reason for not counting the possession
offense as relevant conduct was unclear).
In Chen’s case, the Board offered two reasons for adopting
a rule that “small amount” means exactly 30 grams or less.
First, it decided that a weight of “at least 30 grams” cannot be
small because Moncrieffe “contemplated” that only 30 grams
or less is a small amount. But as we noted earlier, that is not
No. 17‐1130 7
what Moncrieffe said. To the contrary, it explicitly reserved the
issue of what amount is small enough for federal misde‐
meanor treatment. Moncrieffe, 133 S. Ct. at 1686 n.7 (“The
meaning of ‘small amount’ is not at issue in this case, so we
need not, and do not, define the term.”). Second, the Board
relied on its own decision in Castro Rodriguez, in which it said
that 30 grams or less would “serve as a useful guidepost in
determining whether an amount is ‘small,’” and observed
that
[t]he courts have concluded that no fixed quan‐
tity of marijuana may resolve in every case
whether an amount is “small” because the de‐
termination may also depend on the context in
which the drug was distributed. For example,
less than 30 grams may still not be deemed
small if it was distributed in a setting, such as a
prison, where possession of any controlled sub‐
stance poses security concerns.
25 I. & N. Dec. at 703.
We are not required to give the Board’s interpretation of
the CSA any particular deference. See Gonzales‐Gomez v.
Achim, 441 F.3d 532, 534 (7th Cir. 2006). And although we may
always consult the Board’s reasoning for its persuasive value,
see Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), the result
of that consultation here leaves us unpersuaded. To the extent
that the Board’s ruling relies on the rationale of Castro Rodri‐
guez, it is flawed. Castro Rodriguez’s fact‐specific interpretation
method is incompatible with the categorical approach be‐
cause it fails to look exclusively at the statute of conviction.
See Esquivel‐Quintana, 137 S. Ct. at 1567–68; Moncrieffe,
8 No. 17‐1130
133 S. Ct. at 1684. Second, Castro Rodriguez relied on the Third
Circuit’s decision in Catwell v. Att’y Gen. of the U.S., 623 F.3d
199, 209 (3d Cir. 2010), but we do not find the latter opinion
to be helpful. The question before that court was quite differ‐
ent: whether 120.5 grams of marijuana is a “small amount” for
purposes of section 841(b)(4). That is a far cry from a shade
above 30 grams. Second, finding no statutory language defin‐
ing what is “small,” the court turned to legislative history and
a few casual remarks by one senator to the effect that “small
amount” might mean just a joint or two. 623 F.3d at 208–209.
Stray comments reported in the Congressional Record are,
however, poor indicators of a law’s meaning. See Conroy v.
Aniskoff, 507 U.S. 511, 520 n.2 (1993) (Scalia, J., concurring);
Heinz v. Cent. Laborersʹ Pension Fund, 303 F.3d 802, 809–10 (7th
Cir. 2002), affʹd, 541 U.S. 739 (2004).
In addition, Catwell interpreted the term “small amount”
in section 841(b)(4) by relying on an entirely different, and in
our view inapposite, subsection of the Immigration Act,
8 U.S.C. § 1227(a)(2)(B)(i). Section 1227 deals with the subject
of “deportable aliens,” and subpart (a)(2)(B) lists the con‐
trolled‐substance offenses that render a person removable.
Subpart (i) of subpart (B) includes any law relating to con‐
trolled substances “other than a single offense involving pos‐
session for one’s own use of 30 grams or less of marijuana.”
Anyone who fits within that safe harbor, however, is not re‐
movable at all, and so would have no need to seek cancella‐
tion of removal. In addition, reliance on section
1227(a)(2)(B)(i) disregards the distinction Congress drew, for
purposes of cancellation of removal, between permanent res‐
idents and nonpermanent residents. Congress explicitly
made nonpermanent residents ineligible for cancellation of
No. 17‐1130 9
removal if they have been convicted of certain crimes, includ‐
ing either a controlled‐substance offense or an aggravated fel‐
ony. See 8 U.S.C. § 1229b(b)(1) (cross‐references to sections
1182(a)(2) and 1227(a)(2) add controlled substance offenses).
In contrast, it conditioned permanent residents’ eligibility
only on the absence of an aggravated‐felony conviction, ex‐
pressly excluding the controlled‐substance ground. See id.
§ 1229b(a)(3). If a statute reflects that Congress considered the
possibility of including a term and decided against inclusion,
courts should not read that term into the statute. See Marx v.
Gen. Revenue Corp., 133 S. Ct. 1166, 1175 (2013). That is what
Congress did here: it provided an additional ground for mak‐
ing nonpermanent residents ineligible for cancellation of re‐
moval—commission of a controlled‐substance offense—
while for permanent residents it listed only the commission
of an aggravated felony.
We find little guidance in the decisions of our sister cir‐
cuits about the meaning of “small amount.” They have relied
most often on the ambiguous comments during legislative de‐
bates and have held that the term “small amount” refers to a
weight consistent with “social sharing among friends.” See
United States v. Eddy, 523 F.3d 1268, 1271 (10th Cir. 2008); Gar‐
cia‐Echaverria v. United States, 376 F.3d 507, 514 n.5 (6th Cir.
2004); United States v. Outen, 286 F.3d 622, 637–38 (2d Cir.
2002). We realize that at some point the line between “small”
and “more than small” will have to be drawn, but we see no
need to draw it here, since the Illinois statute uses as its point
of reference almost the same 30‐gram level that the Moncrieffe
Court was considering.
The Board erred by reading Moncrieffe as if that decision
interpreted the CSA’s term “small amount.” Nothing in
10 No. 17‐1130
Moncrieffe supports the conclusion that the possession of a tad
more than 30 grams of marijuana—the lowest amount pun‐
ishable under 720 ILCS § 550/5(d)—can never be punished as
a federal misdemeanor. The Board erred as a matter of law in
this respect, when it found that Chen’s conviction under that
provision qualifies as an aggravated felony.
We GRANT the petition for review and remand to give the
Board the opportunity to decide whether to exercise its dis‐
cretion to grant cancellation of removal.