JERMAINE RDIAS, Germaine Dias, Jermaine Ricardo Dias, Jermaine R. Diaz v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Thomas J. Whelan, Senior District Judge for the U.S.**
District Court for the District of Southern California, San Diego, sitting by
designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERMAINE R DIAS, Germaine Dias,
Jermaine Ricardo Dias, Jermaine R. Diaz,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-73051
Agency No. A074-882-099
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 2, 2011
San Francisco, California
Before: BERZON and BYBEE, Circuit Judges, and WHELAN, Senior District
Judge.**
Jermaine Dias petitions for review of the BIA’s dismissal of his appeal of an
IJ’s decision. The BIA affirmed the IJ’s finding that Dias was removable under 8
FILED
SEP 23 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The BIA declined to reach the IJ’s additional holding that Dias’s1
conviction for rape in the third degree, in violation of New York Penal Law §
130.25, also constituted an aggravated felony. Because “[o]ur review is limited to
the BIA’s decision,” Toro Romero v. Ashcroft, 382 F.3d 930, 934 (9th Cir. 2004),
we do not address this issue either. See INS v. Ventura, 537 U.S. 12, 16 (2002).
2
U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony, based
on his conviction for criminal sale of marijuana in the fourth degree in violation of
New York Penal Law § 221.40.1
As the BIA affirmed the order of removal only on the ground that the §
221.40 conviction was a conviction for an aggravated felony, whether that is so is
the only issue properly before us. See Gonzales v. Thomas, 547 U.S. 183, 186
(2006). Under the categorical approach of Taylor v. United States, 495 U.S. 575
(1990), which we use to determine whether the crime of conviction qualifies as an
generic aggravated felony, Hernandez-Cruz v. Holder, ---F.3d---, No. 08-73805,
2011 WL 2652461, at *4 (9th Cir. 2011), criminal sale of marijuana in the fourth
degree does not constitute an aggravated felony. There are two possible routes
through which a state drug crime can qualify as a generic drug trafficking felony:
The crime can either contain a “trafficking element” because it involves “some sort
of commercial dealing,” Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008)
(quoting Lopez v. Gonzalez, 549 U.S. 46, 53 (2006) (internal quotation marks

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3
omitted)), or entail conduct that “would be punishable as a felony under federal
drug laws,” id.
Conduct that violates § 221.40 does not necessarily involve “some sort of
commercial dealing,” id., because a person can violate the statute by simply giving
away marijuana without consideration. See N.Y. Penal Law § 221.40; id. §
220.00(1); People v. Starling, 650 N.E.2d 387, 390 (N.Y. 1995). A conviction
under § 221.40 does not, therefore, categorically contain a “trafficking element,”
Rendon, 520 F.3d at 974 (quoting Salvejo-Fernandez v. Gonzalez, 455 F.3d 1063,
1066 (9th Cir. 2006)) (internal quotation marks omitted).
Nor is conduct that violates § 221.40 necessarily punishable as a felony
under the federal drug laws. An individual could be convicted under the statute for
giving away as few as two marijuana cigarettes or a quantity of marijuana barely
exceeding two grams. See N.Y. Penal Law §§ 221.40, 221.35. Under federal law,
such conduct would be punishable as a misdemeanor rather than as a felony. See
21 U.S.C. §§ 841(b)(4), 844(a); Lopez, 549 U.S. at 53. Accordingly, a conviction
under § 221.40 is not a “categorical match,” Hernandez-Cruz v. Holder, 2011 WL
2652461, at *4 (9th Cir. 2011), for generic drug trafficking under either of the
routes established in Rendon.

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4
We GRANT Dias’s petition for review and REMAND to the BIA to: (1)
apply the modified categorical approach to determine whether Dias’s § 221.40
conviction qualifies as an aggravated felony, thus rendering him removable under
8 U.S.C. § 1227(a)(2)(A)(iii); (2) determine whether Dias is removable on any
other ground; or (3) if necessary (e.g., if Dias’s § 221.40 conviction turns out not to
qualify as an aggravated felony), conduct both inquiries.

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