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2nd Circuit Rules Criminal Sale of Marijuana 3rd is not an Aggravated Felony

Published: Jul 20, 2018 10:30 am

Hot off the presses:

Hylton v. Sessions, 17‐1567‐ag (JULY 20, 2018)

Antoine Hylton, a Jamaican national, petitions for review of the order of the Board of Immigration Appeals, which found him ineligible for cancellation of removal because his prior state conviction for sale of marijuana in the third degree constituted an aggravated felony under the Immigration and Nationality Act. The single issue on appeal is whether the minimum offense conduct under Hylton’s statute of conviction, New York Penal Law (“NYPL”) § 221.45, is necessarily punishable as a federal felony by the Controlled Substances Act. Because NYPL § 221.45 explicitly extends to the distribution of less than an ounce of marijuana without remuneration, it is punishable as a federal misdemeanor. 2 Hylton’s crime of conviction is therefore not categorically an aggravated felony. We GRANT the petition, VACATE the opinion of the BIA, and REMAND for further consideration consistent with this opinion.

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