No IN THE SUPREME COURT OF THE UNITED STATES. January Term, Anita Kurzban, Petitioner,

No. 2010-530 IN THE SUPREME COURT OF THE UNITED STATES January Term, 2012 Anita Kurzban, Petitioner, v. Attorney General of the United States, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR PETITIONER Team P2 Counsel for Petitioner

QUESTIONS PRESENTED I. Does a state conviction for attempted possession of an unspecified amount of marijuana constitute an aggravated felony causing Petitioner to be ineligible for asylum even though it is not necessarily a felony punishable under federal law? II. Does retaliation for the acts of a family member constitute persecution on account of membership in a particular social group where a clear nexus exists between said persecution and the established protected ground under the Immigration and Nationality Act? i

TABLE OF CONTENTS Page(s) QUESTIONS PRESENTED... TABLE OF CONTENTS... TABLE OF AUTHORITIES... i ii iv JURISDICTIONAL STATEMENT... 1 STATEMENT OF THE CASE... 2 Statement of Facts... 2 Procedural History... 4 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 7 I. THE FOURTEENTH CIRCUIT SHOULD BE REVERSED BECAUSE PETITIONER S STATE CONVICTION FOR ATTEMPTED POSSESSION OF AN UNSPECIFIED AMOUNT OF MARIJUANA DOES NOT CONSTITUTE AN AGGRAVATED FELONY UNDER FEDERAL IMMIGRATION LAW CAUSING PETITIONER TO BE INELIGIBLE FOR ASYLUM.... 7 A. Petitioner s State Conviction Is Not an Aggravated Felony Because It Is Not Necessarily a Felony Punishable Under Federal Law.... 8 i. Petitioner s state conviction is not necessarily a felony punishable under federal law because it amounts to a federal misdemeanor and is therefore not an aggravated felony.... 10 a. Under the categorical approach, Petitioner s conviction corresponds with 841(b)(4) and is not an aggravated felony.... 11 b. Under the modified categorical approach, Petitioner s conviction corresponds with 841(b)(4) and is not an aggravated felony.... 12 ii. The Government has failed to prove by clear and convincing evidence that Petitioner s state conviction is necessarily an aggravated felony.... 14 ii

TABLE OF CONTENTS (CONT.) Page(s) B. Under a Commonsense Analysis and Under the Rule of Lenity, Petitioner s State Conviction Is Not an Aggravated Felony.... 15 i. To convert Petitioner s state conviction, for which she was sentenced to five days in jail and a fifty-five dollar fine, into a federal felony would be counterintuitive.... 15 ii. Under the rule of lenity, Petitioner s conviction is not an aggravated felony because the CSA is ambiguous on its default sentencing provision.... 17 C. Petitioner Is Eligible for Asylum Because She Qualifies as a Refugee Under 8 U.S.C. 1101(a)(42)(A).... 17 II. PETITIONER IS ENTITLED TO WITHHOLDING OF REMOVAL BECAUSE SHE MEETS THE STATUTORY REQUIREMENTS AS DESCRIBED IN THE IMMIGRATION AND NATIONALITY ACT AND HER STATE CONVICTION DOES NOT DISQUALIFY HER FROM RELIEF.... 19 A. Petitioner Is Eligible for Withholding of Removal Because She Meets the Statutory Requirements for Relief.... 19 i. Petitioner s membership in the Kurzban family qualifies as membership in a particular social group for withholding of removal and asylum purposes.... 19 ii. iii. The conditions Petitioner will face upon her return to Purifica satisfy both the BIA s definition of persecution and the standard of likelihood required for withholding of removal relief.... 22 The persecution is on account of Petitioner s family membership, satisfying the nexus requirement of 1101(a)(42)(A).... 24 B. Petitioner s State Conviction Does Not Disqualify Her from Withholding of Removal Relief Because It Is Not a Particularly Serious Crime.... 26 CONCLUSION... 30 iii

TABLE OF AUTHORITIES Page(s) UNITED STATES SUPREME COURT CASES Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010)... 13, 14, 16, 17 Costello v. INS, 376 U.S. 120 (1964)... 17 Fong Haw Tan v. Phelan, 333 U.S. 6 (1948)... 17 Gonzales v. Thomas, 547 U.S. 183 (2006)... 21 INS v. Stevic, 467 U.S. 407 (1984)... 23 INS v. Elias-Zacarias, 502 U.S. 478 (1992)... 17, 24 INS v. Errico, 385 U.S. 214 (1966)... 17 Lopez v. Gonzalez, 549 U.S. 47 (2006)... 8, 16 Taylor v. United States, 495 U.S. 575 (1990)... 8 UNITED STATES COURTS OF APPEALS CASES Bhasin v. Gonzalez, 423 F.3d 977 (9th Cir. 2005)... 22, 25, 26 Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984)... 23, 24 Bosede v. Mukasey, 512 F.3d 946 (7th Cir. 2008)... 28 iv

TABLE OF AUTHORITIES (CONT.) Page(s) Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001)... 8 Dias v. Holder, 2011 WL 4431099 (9th Cir. 2011)... 11 Evanson v. Att y Gen. of United States, 550 F.3d 284 (2008)... 7, 8, 9 Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1993)... 20 Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. 2008)... 8, 15 Ghasenmimehr v. INS, 7 F.3d 1389 (8th Cir. 1993) (per curiam)... 18 Ikharo v. Holder, 614 F.3d 622 (6th Cir. 2010)... 28 Iliev v. INS, 127 F.3d 638 (7th Cir. 1997)... 21 Jeune v. Att y Gen. of United States., 476 F.3d 199 (3d Cir. 2007)... passim Konan v. Att y Gen. of United States, 432 F.3d 497 (3rd Cir. 2005)... 21 Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008)... passim Ming Lam Sui v. INS, 250 F.3d 105 (2d Cir. 2001)... 15 Mitev v. INS, 67 F.3d 1325 (7th Cir. 1995)... 23 Partyke v. Att y Gen. of United States, 417 F.3d 408 (3d Cir. 2005)... 11 v

TABLE OF AUTHORITIES (CONT.) Page(s) Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir. 2009)... 9, 12 Ravindran v. INS, 976 F.2d 754 (1st Cir. 1992)... 20 Ruiz Martinez v. Mukasey, 516 F.3d 102, 109 (2d Cir. 2008)... 28 Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (3d Cir. 2007)... 9, 15 Sanchez-Trujillo v. INS, 801 F.3d 1571 (9th Cir. 1986)... 21 Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004)... 9 Steele v. Blackman, 236 F.3d 120 (3d Cir. 2001)... 9, 10, 13, 14 Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc)... 21 Torres v. Mukasey, 551 F.3d 616 (7th Cir. 2008)... 25, 26 United States v. Outen, 286 F.3d 622 (2d Cir. 2002)... 10 Yousefi v. INS, 260 F.3d 318 (4th Cir. 2001)... 28 Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003)... 29 vi

TABLE OF AUTHORITIES (CONT.) Page(s) BOARD OF IMMIGRATION APPEALS CASES In re L-S-J-, 21 I. & N. Dec. 973 (B.I.A. 1997)... 29 In re Y-L-, 23 I. & N. Dec. 270 (A.G. 2002)... 29 Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985)... 20, 23 Matter of B-, 20 I. & N. Dec. 427 (B.I.A. 1991)... 18 Matter of Frentescu, 18 I. & N. Dec. 244 (B.I.A. 1982)... 27, 28, 29 Matter of Fuentes, 19 I. & N. Dec. 658 (B.I.A. 1988)... 24 Matter of L-S-, 22 I. & N. Dec. 645 (B.I.A. 1999) (en banc)... 27, 28 Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987)... 20 Matter of N-A-M-, 24 I. & N. Dec. 336 (B.I.A. 2007)... 27, 28 Matter of S-E-G-, 24 I. & N. Dec. 579 (B.I.A. 2008)... 20 Matter of S-P-, 21 I. & N. Dec. 486 (B.I.A. 1996) (en banc)... 25 FEDERAL STATUTES 8 U.S.C. 1101(a)(42)(A) (2011)... 18 8 U.S.C. 1158(a)(2)(B) (2009)... 18 8 U.S.C. 1158(b)(2)(B)(i) (2009)... 27 vii

TABLE OF AUTHORITIES (CONT.) Page(s) 8 U.S.C. 1182(a)(6)(A)(i) (2010)... 4 8 U.S.C. 1227(a)(2)(A)(iii) (2008)... 4 8 U.S.C. 1229 (2006)... 15 8 U.S.C. 1229b(a)(3) (2008)... 14 8 U.S.C. 1231(b)(3) (2006)... 27 8 U.S.C. 1231(b)(3)(A) (2006)... 19, 26 8 U.S.C. 1231(b)(3)(B) (2006)... 26 8 U.S.C. 1231(b)(3)(B)(ii) (2006)... 27 8 U.S.C. 1231(b)(3)(B)(iii) (2006)... 7, 10 8 U.S.C. 1231(b)(3)(B)(iv) (2006)... 27 8 U.S.C. 1252(b)(4)(B) (2005)... 19 8 U.S.C. 1253(h) (1991)... 27 18 U.S.C. 3559(a)(5) (2006)... 16 21 U.S.C. 841(a)(1) (2010)... 10, 12 21 U.S.C. 841(b)(1)(D) (2010)... 6, 10, 12, 17 21 U.S.C. 841(b)(4) (2010)... passim 21 U.S.C. 844 (2010)... 10, 16 STATE STATUTES Fraternia Penal Code 100... 16 Fraternia Penal Code 1173(a)... passim viii

TABLE OF AUTHORITIES (CONT.) Page(s) MISCELLANEOUS 2 Immigration Law Service 2d 10:50 (2011)... 24 Black s Law Dictionary (9th ed. 2009)... 16 Jeff Yates et. al., A War on Drugs or A War on Immigrants? Expanding the Definition of "Drug Trafficking" in Determining Aggravated Felon Status for Noncitizens, 64 MD. L. REV. 875 (2005)... 17 ix

IN THE SUPREME COURT OF THE UNITED STATES January Term, 2011 ANITA KURZBAN, Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR PETITIONER JURISDICTIONAL STATEMENT A statement of jurisdiction has been omitted in accordance with the rules of the U.C. Davis School of Law Asylum and Refugee National Moot Court Competition. 1

STATEMENT OF THE CASE Statement of Facts Petitioner, Anita Kurzban, is from the country of Purifica. (R. 4). She arrived in the United States without inspection in May of 2004 with her father, John Kurzban, for fear of violence directed towards them by a powerful mob in the city of Atos in Purifica. (R. 4). Mr. Kurzban was a reporter with the local television news station in Purifica. (R. 4). He made a documentary, entitled The Mob of Atos and Its Leader, which exposed Caro Tortolucci as the leader of the mob. (R. 4). This mob is a powerful organization that [controls] the city completely. (R. 4). Upon discovering that Mr. Kurzban intended to create a documentary to expose him as the leader of the mob, Tortolucci threatened to kill Mr. Kurzban if he followed through with his documentary. (R. 4). Although Mr. Kurzban was afraid of being victimized by the mob, he allowed the television news station to air the documentary on April of 2004 on national television. (R. 4). As a result, Mr. Kurzban and his family were subjected to violence and threats of violence from the mob. (R. 4). Aside from sending threatening letters to Mr. Kurzban, the mob beat him and set his car on fire. (R. 4). After beating Mr. Kurzban, the men told him, This is what happens when you don t keep your mouth shut. (R. 4). Mr. Kurzban did not call the police for fear that the mob controlled them. (R. 4). Due to their fear of further attacks, Petitioner and her father left Purifica and settled in Crawford, Fraternia, leaving her mother, brother, and other relatives in Purifica. (R. 4). However, the mob continued their campaign of violence against the Kurzban family in Purifica. (R. 4). After the mob set Petitioner s father s house on fire with her mother inside, her father returned to Purifica. (R. 5). Upon his return, the mob kidnapped and shot Petitioner s father, 2

who reported the incident to the police. (R. 4). The police were unwilling to look into the matter and unable to put an end to the mob s violence against the Kurzbans. (R. 4-5). Tortolucci and the mob continued to terrorize the Kurzban family. (R. 5). They kidnapped and assaulted Petitioner s brother and teenage cousin. (R. 5). As he beat Petitioner s brother, Tortolucci warned that, The Kurzban family is going to pay for everything. This is what you get for having a father like yours. (R. 5). As a result, Petitioner s family in Purifica went into hiding. (R. 5). Petitioner feared that she would face similar treatment from the mob if she returned, so she remained in Crawford, where she lived with her boyfriend, a known local gang member. (R. 5). She intended to apply for asylum out of fear of persecution. (R. 5). However, on August 5, 2004, Petitioner was arrested after a search warrant led to the discovery of marijuana in her boyfriend s home, where she was residing. (R. 5). Petitioner was then charged with violating Fraternia Code Section 1173(a). (R. 6). Out of fear of deportation, she pled no contest to attempted possession of an unspecified amount of marijuana with intent to deliver and was convicted under Fraternia Code Section 1173(a). (R. 6). Petitioner took this plea to ensure she would be held in custody only for the shortest period of time. (R. 6). The conviction records provided by Respondent ( the Government ) were silent as to the amount of marijuana and whether there was remuneration. (R. 6). Petitioner was sentenced to five days in a local jail and a fifty-five dollar fine. (R. 6). While she was confined, Immigration and Customs Enforcement ( ICE ) did not put a hold on her, and after serving her sentence, she was released. (R. 6.) Two months later, as part of Operation Gettum, a new policy which incited an aggressive enforcement strategy targeting any gang member for a violation of any law, Petitioner and her boyfriend, a well-known gang member, were stopped by Crawford police on suspicion of their involvement in gang-related activities. (R. 6). Because of her prior 3

conviction and lack of legal immigration status, the Crawford police contacted the Department of Homeland Security and ICE authorities. (R. 6). These authorities detained Petitioner and placed her in removal proceedings pursuant to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act ( INA ) for entry without inspection and presence without admission, and Section 237(a)(2)(A)(iii) of the INA for committing an aggravated felony. (R. 6); 8 U.S.C. 1182(a)(6)(A)(i) (2010); 8 U.S.C. 1227(a)(2)(A)(iii) (2008). Procedural History As a defense to the charges of removability leveled against her, Petitioner filed for asylum and withholding of removal, maintaining that she possessed a well-founded fear of persecution if she was forced to return to Purifica and that her prior state conviction was not an aggravated felony. (R. 7). Petitioner represented herself in her appeal, unable to afford legal representation. (R. 7). She testified to the Immigration Judge ( IJ ) that she had no knowledge of the marijuana and that it belonged to her boyfriend. (R. 6 at n.3). The IJ denied her application for asylum and sustained both charges of removability. (R. 7). The IJ denied Petitioner s application for withholding of removal, finding that she had not shown that her fear of persecution was on account of her membership in her family. (R. 7). Petitioner unsuccessfully appealed the IJ s decision to the Board of Immigration Appeals ( BIA ), which affirmed the decision to deny asylum and withholding of removal relief. (R. 7). Petitioner appealed the BIA s decision to the Fourteenth Circuit Court of Appeals. (R. 7). The Fourteenth Circuit held that Petitioner s state conviction constituted an aggravated felony, and therefore the BIA correctly denied asylum relief to the Petitioner. (R. 11). The Fourteenth Circuit also held that because Petitioner failed to show that she would be subjected to 4

persecution on account of her family membership, she did not risk persecution based on a protected ground and denied withholding of removal relief. (R. 14). Petitioner requested review of the Fourteenth Circuit s decision, and this Court granted certiorari to consider whether Petitioner s state conviction constitutes an aggravated felony and thus disqualifies Petitioner for asylum, and also to consider whether persecution in retaliation for the acts of a family member is persecution on account of a protected group for withholding of removal purposes. (R. 1). SUMMARY OF THE ARGUMENT The Fourteenth Circuit s decision should be reversed because Petitioner s state conviction for attempted possession of an unspecified amount of marijuana does not constitute an aggravated felony under federal immigration law causing petitioner to be ineligible for asylum. Petitioner s state conviction is not an aggravated felony under the hypothetical federal felony approach because it is not a felony punishable under the Controlled Substances Act ( CSA ). Utilizing both a categorical approach and a modified categorical approach, Petitioner s state conviction corresponds with the exception found in 841(b)(4). As such, it is a federal misdemeanor and not a federal felony. Further, it is not Petitioner s burden to produce mitigating evidence and the Government has failed to prove by clear and convincing evidence that Petitioner s state conviction is necessarily an aggravated felony. Given a commonsense analysis, Petitioner s state conviction still does not amount to an aggravated felony. To categorize Petitioner s state conviction, for which she was sentenced to five days of imprisonment and a fifty-five dollar fine, as an aggravated felony would not comport with the common understanding of a felony. Rather, the rule of lenity requires that Petitioner s state conviction is not to be construed as a federal felony because the CSA is ambiguous 5

regarding whether 841(b)(1)(D) or 841(b)(4) is the default sentencing provision. Because Petitioner s state conviction is not an aggravated felony and Petitioner meets the definition of a refugee under 8 U.S.C. 1101(a)(42)(A), she is eligible to apply for asylum. The Fourteenth Circuit s decision should also be reversed because Petitioner meets the statutory requirements for withholding of removal relief and her state conviction does not disqualify her from that relief. She is entitled to this mandatory form of relief because the record shows that she will be subjected to certain harm upon her return to Purifica solely based on her protected status as a member in the Kurzban family. First, Petitioner s membership in the Kurzban family qualifies as membership in a particular social group because the shared familial connection is a common immutable, socially visible, and discrete characteristic. Further, several recent holdings by circuit courts uphold the premise that family groups can qualify as particular social groups. Second, the circumstances Petitioner will face upon her return to Purifica meet the BIA s definition of persecution as the record shows that Purifica cannot control the mob s actions and the harm Petitioner faces is punishment for being part of the Kurzban family. Additionally, Petitioner satisfies the burden of showing that this persecution is more likely than not should she return to Purifica because the threat against the Kurzban family is a serious one and the mob has already targeted Petitioner s nuclear and extended family. Lastly, Petitioner shows that the persecution she will face is on account of her membership in a particular social group by satisfying the nexus requirement between the mob s interest in harming her and her familial connection. Thus, Petitioner satisfies all statutory requirements to be entitled to withholding of removal relief. Even if this Court finds that Petitioner s prior state conviction is an aggravated felony, Petitioner remains eligible for withholding of removal relief because her sentence was for less 6

than five years and her prior conviction does not represent a particularly serious crime. Petitioner s prior conviction is not a particularly serious crime because the nature of the conviction, the type of sentence imposed, and the circumstances of the crime do not indicate that Petitioner is a danger to the community of the United States. Lastly, Petitioner can overcome the presumption that unlawful trafficking in controlled substances constitutes a particularly serious crime by demonstrating extraordinary and compelling circumstances. ARGUMENT I. THE FOURTEENTH CIRCUIT SHOULD BE REVERSED BECAUSE PETITIONER S STATE CONVICTION FOR ATTEMPTED POSSESSION OF AN UNSPECIFIED AMOUNT OF MARIJUANA DOES NOT CONSTITUTE AN AGGRAVATED FELONY UNDER FEDERAL IMMIGRATION LAW CAUSING PETITIONER TO BE INELIGIBLE FOR ASYLUM. The Fourteenth Circuit s decision should be reversed because Petitioner s state conviction does not amount to an aggravated felony under the INA. Petitioner s state conviction is not an aggravated felony under the hypothetical federal felony approach because Petitioner s offense is not necessarily a felony punishable under the CSA and the Government has failed to prove so. Nor is Petitioner s state conviction an aggravated felony under a commonsense approach or the rule of lenity. Because Petitioner was not convicted of an aggravated felony and she meets the definition of a refugee under 8 U.S.C. 1101(a)(42)(A), she is eligible for asylum. This issue presents a pure question of law on whether a state conviction qualifies as an aggravated felony, which this Court reviews de novo, owing no deference to the BIA. See Martinez v. Mukasey, 551 F.3d 113, 117 (2d Cir. 2008). An individual who has been convicted of an aggravated felony under the INA is not eligible to apply for asylum. 8 U.S.C. 1231(b)(3)(B)(iii) (2006). An aggravated felony can be determined using either the illicit trafficking approach or the hypothetical federal felony approach. Evanson v. Att y Gen. of 7

United States, 550 F.3d 284, 289 (3rd Cir. 2008). Under the illicit trafficking approach, a state conviction is an aggravated felony if it contains illicit trafficking as an element. Lopez v. Gonzales, 549 U.S. 47, 50 (2006). In Lopez, this Court held that a commonsense conception of illicit trafficking must be taken as an indication of what Congress meant and that ordinarily trafficking means some sort of commercial dealing. 549 U.S. at 53. Because Petitioner s statute of conviction does not contain trafficking as an element, Petitioner s state conviction is not an aggravated felony under the illicit trafficking approach. See Fraternia Penal Code 1173(a). Rather, Petitioner s conviction will be assessed under the hypothetical federal felony approach, where a state conviction is an aggravated felony if it is necessarily categorized as a felony punishable under the CSA. Gertsenshteyn v. Mukasey, 544 F.3d 137, 143 (2d Cir. 2008). A. Petitioner s State Conviction Is Not an Aggravated Felony Because It Is Not Necessarily a Felony Punishable Under Federal Law. For a state conviction to qualify as an aggravated felony under the hypothetical federal felony approach, it must be a felony punishable under the CSA. Evanson, 550 F.3d at 289. To determine whether a state conviction is a felony punishable under the CSA, the categorical approach must be used. Taylor v. United States, 495 U.S. 575, 600 (1990). Under the categorical approach, whether an individual has been convicted of an aggravated felony must be determined by looking only at the elements necessary to sustain a conviction under a given statute and not at the particular facts underlying the conviction. Id.; Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001). For a state conviction to be an aggravated felony, it is not enough that it could be punished as a felony under the CSA; the state conviction must necessarily be punishable as a felony under the CSA. See Martinez, 551 F.3d at 120; Lopez, 127 S.Ct. at 633; Dalton, 257 F.3d at 204. Therefore, if the statute of conviction criminalizes conduct that would 8

not satisfy the federal definition of the crime at issue, then the conviction does not qualify as a predicate offense for removal. Pelayo-Garcia v. Holder, 589 F.3d 1010, 1014 (9th Cir. 2009). Where some variations [of a statute] meet the aggravated-felony requisites and others do not, this Court must then utilize the modified categorical approach to determine whether the specific conduct for which the noncitizen was convicted is necessarily a felony under the CSA. Pelayo-Garcia, 589 F.3d at 1016; see also Jeune v. Att y Gen. of United States, 476 F.3d 199, 204 (3d Cir. 2007); Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir. 2004). The modified categorical approach means looking beyond the statutory definition, but only for the purpose of determining the elements necessarily found by a jury, or admitted by a defendant in pleading guilty. Evanson, 550 F.3d at 290. Such an inquiry is limited to the records of the state conviction to establish the facts of the underlying conviction. Jeune, 476 F.3d at 202. Unless the inquiry yields facts which necessitate that the underlying conviction be punishable as a felony under the CSA, it does not amount to an aggravated felony and a noncitizen is not deportable based on that conviction. See Evanson, 550 F.3d at 289; Martinez, 551 F.3d at 118; Jeune, 476 F.3d at 204; Steele v. Blackman, 236 F.3d 120, 135 (3d Cir. 2001). Additionally, the Government bears the burden of proving through clear and convincing evidence that a noncitizen has been convicted of an aggravated felony and is deportable. Jeune, 476 F.3d 203 n.1; Ruiz- Vidal v. Gonzales, 473 F.3d 1072, 1079 (3d Cir. 2007). Here, Petitioner s state conviction is not an aggravated felony for two reasons. First, Petitioner s state conviction is not necessarily a felony punishable under the CSA because it corresponds with a federal misdemeanor. Second, the Government has failed to provide clear and convincing evidence that Petitioner s state conviction necessarily amounts to a felony punishable under the CSA. 9

i. Petitioner s state conviction is not necessarily a felony punishable under federal law because it amounts to a federal misdemeanor and is therefore not an aggravated felony. According to the CSA, it is unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense or possess with intent to manufacture, distribute, or dispense a controlled substance, including marijuana. 21 U.S.C. 841(a)(1) (2010). If the case involves less than fifty kilograms of marijuana, the defendant is subject to a maximum sentence of five years or a $250,000 fine or both, except as provided in paragraphs four and five of the same subsection. 21 U.S.C. 841(b)(1)(D) (2010). Paragraph four of subsection (b) is an exception to the general rule, and any person who violates subsection (a) of this section by distributing a small amount of marihuana [sic] for no remuneration shall be treated as provided in 844 of this title. 21 U.S.C. 841(b)(4) (2010). Section 844 discusses penalties for simple possession, which is a misdemeanor and cannot be classified as an aggravated felony under the INA. 21 U.S.C. 844 (2010); 8 U.S.C. 1231(b)(3)(B)(iii). The exception in 841(b)(4) is a standalone subsection and is specifically referred to in 841(b)(1)(D). Martinez, 551 F.3d at 119-20. The type of activity encompassed by 841(b)(4) is not merely one of lesser degree than those covered by (b)(1)(d) but of a different type more akin to simple possession than to provisions intended to cover traffickers. Martinez, 551 F.3d at 120 (quoting United States v. Outen, 286 F.3d 622, 637 (2d Cir. 2002)). Ultimately, while courts differ in their characterization of 841(b)(4) as a mitigating factor or a standalone misdemeanor offense, what matters is whether a conviction under state law corresponds with the exception. Steele, 236 F.3d at 137; Martinez, 551 F.3d at 120. If so, a noncitizen s state conviction is not necessarily a felony under the CSA and not an aggravated felony under the INA. Id. 10

Under both the categorical approach and the modified categorical approach, Petitioner s state conviction corresponds with the exception in 841(b)(4). Therefore, Petitioner s state conviction is not necessarily a felony punishable under the CSA and is not an aggravated felony. a. Under the categorical approach, Petitioner s conviction corresponds with 841(b)(4) and is not an aggravated felony. Under the categorical approach, Petitioner s state conviction is not an aggravated felony because the statute of conviction criminalizes activity which is not necessarily a felony punishable under the CSA. The Second, Third, and Ninth Circuits have reasoned that when a noncitizen s state conviction may correspond with the exception in 841(b)(4), it is not necessarily punishable as a felony under the CSA and is not an aggravated felony. See Dias v. Holder, 2011 WL 4431099, at *1 (9th Cir. 2011); Martinez, 551 F.3d at 119-20; Jeune, 476 F.3d at 205. This Court must assume that [a noncitizen s] conduct was only the minimum necessary to comport with the statute. Jeune, 476 F.3d at 204 (quoting Partyke v. Att y Gen. of United States, 417 F.3d 408, 411 (3d Cir. 2005)). In this case, the minimum conduct necessary to satisfy the elements of Petitioner s statute of conviction corresponds with 841(b)(4). Because Petitioner s conviction may be a misdemeanor under 841(b)(4), it is not an aggravated felony. The categorical approach dictates that courts look no further than to the fact that [a noncitizen s] conviction could have been for precisely the sort of nonremunerative transfer of small quantities of marihuana [sic] that is only a federal misdemeanor under 21 U.S.C. 841(b)(4). Martinez, 551 F.3d at 120. For example, in Martinez, a noncitizen was convicted of a New York statute which covers distribution of very small quantities of marihuana [sic]. 551 F.3d at 118. Specifically, the statute criminalizes the sale of marijuana... when [an individual] knowingly and unlawfully sells marijuana of an amount over two grams. Id. The Second Circuit held that because Martinez s New York conviction could have 11

been for any form of nonremunerative transfer of as little as two grams of marijuana, his conviction could have amounted to only a federal misdemeanor under 841(b)(4). Martinez, 552 F.3d at 120. Because Martinez s conviction was not necessarily a felony punishable under the CSA, the Second Circuit found that his offense was not an aggravated felony. Id. at 121. Here, Petitioner s conviction reveals only that her conduct was the bare minimum necessary to trigger a violation of Fraternia Code Section 1173(a). Section 1173(a) encompasses the smallest amount of marijuana criminalized under Fraternia s Penal Code and does not contain remuneration as an element. Fraternia Penal Code 1173(a). Likewise, 841(a)(1) covers activity involving less than fifty kilograms of marijuana, encompassing the smallest amount criminalized under the CSA. 21 U.S.C. 841(a). Also, 841(b)(4) requires no remuneration. 21 U.S.C. 841(b)(1)(D). Therefore, the bare minimum necessary to trigger a violation of Fraternia Code Section 1173(a) is possession of a small amount of marijuana for no remuneration, which corresponds with 841(b)(4). As such, under the categorical approach, Petitioner s conviction corresponds with 841(b)(4) and is not an aggravated felony. b. Under the modified categorical approach, Petitioner s conviction corresponds with 841(b)(4) and is not an aggravated felony. Petitioner s statute of conviction, Fraternia Code Section 1173(a), is broad enough to criminalize not only activity which corresponds with a federal felony, but also activity which corresponds with a federal misdemeanor. Because the statute of conviction is broad, this Court may use the modified categorical approach to determine whether Petitioner s record of conviction establishes that the conviction is necessarily a felony punishable under the CSA. Pelayo-Garcia, 589 F.3d at 1016. Even under the modified categorical approach, the inquiry would yield the same results: Petitioner s conviction still corresponds with the elements of 841(b)(4) and is not necessarily a 12

felony punishable under the CSA. The lack of remuneration as an element of the offense under Fraternia Code Section 1173(a) and the lack of evidence concerning remuneration in Petitioner s record of conviction precludes an assertion that Petitioner s offense is necessarily a felony punishable under the CSA. See Jeune, 476 F.3d at 205. Although Petitioner pled guilty to attempted possession of an unspecified amount of marijuana with intent to distribute, she later testified before the IJ that the marijuana belonged to her boyfriend and that she was not even aware of it. (R. 6 at n.3). This testimony supports the lack of remuneration as part of the offense because Petitioner was not even aware of the marijuana. As in Jeune, this Court cannot infer remuneration where neither the face of the statute nor the record of conviction establishes that it existed. 476 F.3d at 205. Likewise, nothing in the record contains the amount of marijuana involved in Petitioner s offense. (R.6). Reviewing courts should rely on what the convicting court must necessarily have found to support the conviction. Jeune, 476 F.3d at 205 (quoting Steele, 236 F.3d at 135). Although the amount of marijuana involved in Petitioner s conviction is unspecified, Petitioner s sentence suggests an amount under five kilograms or fewer than twenty plants. See Fraternia Penal Code 1173(a). Because an amount less than five kilograms encompasses the least possible amount of marijuana for conviction purposes, Petitioner s offense could have involved a small amount of marijuana which is treated as a misdemeanor under 841(b)(4). No evidence establishes that Petitioner possessed more than a small amount of marijuana. Therefore, even if Petitioner s conviction could satisfy the elements of 841(a), this Court has held that the argument that conduct punishable as a felony should be treated as the equivalent of a felony conviction when the underlying conduct could have been a felony under federal law is unpersuasive. Carachuri-Rosendo v. Holder, 130 S.Ct. 2577, 2579 (2010). 13

Under the INA, a noncitizen is ineligible for asylum when he or she has been convicted of an aggravated felony, not when she could have been convicted of a felony. Carachuri-Rosendo, 130 S.Ct at 2577; see also 8 U.S.C. 1229b(a)(3) (2008). Here, Petitioner s state conviction is not necessarily a felony punishable under the CSA and is not an aggravated felony. ii. The Government has failed to prove by clear and convincing evidence that Petitioner s state conviction is necessarily an aggravated felony. Under the categorical approach, the focus is on the elements and the nature of the offense of conviction, rather than [on] the particular facts relating to petitioner s crime. Martinez, 551 F.3d at 117. It follows that Petitioner s burden is merely to show that she has not been convicted of an aggravated felony and she can do so by showing that the minimum conduct for which [she] was convicted was not an aggravated felony. Martinez, 551 F.3d at 122. Therefore, Petitioner does not bear the burden of producing mitigating evidence in order for her conviction to be deemed a misdemeanor under 841(b)(4). Placing the burden on Petitioner to produce mitigating evidence would necessitate looking beyond the elements of the offense and into evidence of Petitioner s actual criminal conduct which lies outside of the record. Under both the categorical approach and the modified categorical approach, the inquiry is limited to the statutory elements and what the convicting court must necessarily have found to support the conviction. Jeune, 476 F.3d at 205 (quoting Steele, 236 F.3d at 135). To produce mitigating evidence in this case would require Petitioner to produce evidence establishing the amount of marijuana in her possession. Such evidence was not part of Petitioner s record of conviction and its introduction into this case would violate the categorical approach and modified categorical approach. Requiring Petitioner to provide mitigating evidence would also cut against the practical implications of requiring [reviewing courts] to take and weigh extraneous evidence, both in 14

terms of fairness to the defendant and burden on the court. Gertsenshteyn, 544 F.3d at 143. For the BIA and reviewing courts to assume the position of fact finder and piece together an underlying attempt conviction is inappropriate. Ming Lam Sui v. INS, 250 F.3d 105, 119 (2d Cir. 2001). Instead, it is the Government s burden to establish by clear and convincing evidence that a noncitizen is deportable. 8 U.S.C. 1229 (2006); Jeune, 476 F.3d at 199 n.1. Here, the Government has not met its burden of showing that Petitioner s conviction is an aggravated felony and that Petitioner is deportable. In Ruiz-Vidal, the Ninth Circuit held that a state conviction for possession of a controlled substance could not serve as a predicate for removal when the nature of the substance was unspecified. 473 F.3d at 1072. Here, the Government has failed to prove by clear and convincing evidence that Petitioner was convicted of attempted possession of an amount larger than small with intent to distribute for remuneration. Nothing in Petitioner s statute of conviction and record of conviction establishes that her conviction amounts to an aggravated felony. Here, as in Ruiz-Vidal, speculation is not enough. Id. Because the Government has not proven that Petitioner s state conviction is a felony punishable under the CSA and an aggravated felony under the INA, Petitioner s conviction should not be used as a predicate for removal. B. Under a Commonsense Analysis and Under the Rule of Lenity, Petitioner s State Conviction Is Not an Aggravated Felony. i. To convert Petitioner s state conviction, for which she was sentenced to five days in jail and a fifty-five dollar fine, into an aggravated felony would be counterintuitive. Here, the Government seeks to turn a state conviction for which Petitioner served five days in jail and was fined fifty-five dollars into an aggravated felony. This Court must be very wary in this case because the Government seeks a result that the English language tells the Court not to expect and terms have not been given their commonsense conception. See 15

Carachuri-Rosendo, 130 S.Ct. at 2579 (quoting Lopez, 549 U.S. at 47). Ordinarily, a felony... is a serious crime usually punishable by imprisonment for more than one year or by death. Id. (quoting Black s Law Dictionary 694 (9th ed. 2009)). This Court instructs that to be convicted of an aggravated felony punishable as such under the CSA, the maximum term of imprisonment authorized must be more than one year. Carachuri-Rosendo, 130 S.Ct. at 2578 (quoting 18 U.S.C. 3559(a)(5) (2006)). In Carachuri-Rosendo, this Court stated that it would be counter-intuitive and unorthodox to apply an aggravated felony... label to petitioner s conviction which resulted in a ten day sentence because one does not usually think of a 10-day [sic] sentence... as an aggravated felony. 130 S. Ct. at 2579. Because Petitioner s offense falls under the exception found in 841(b)(4), the maximum term of imprisonment under the CSA for her offense is not necessarily more than one year. 21 U.S.C. 841(b)(4). As an activity covered by 841(b)(4), under federal law Petitioner s conviction has a maximum term of imprisonment of not more than one year. 21 U.S.C. 844. As a result, it is not a felony punishable under the CSA or an aggravated felony under the INA. To categorize Petitioner s conviction, for which she was sentenced to five days in jail and a fifty-five dollar fine, as an aggravated felony would be counterintuitive and a result that the English language tells the Court not to expect. Carachuri-Rosendo, 130 S.Ct. at 2585. Indeed, under Fraternia law, Petitioner s offense is a misdemeanor. Fraternia Penal Code 100. Fraternia Code Section 100 states that where the attempted offense is punishable by... imprisonment in county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor. Fraternia Penal Code 100. Here, petitioner was sentenced to imprisonment in a local jail and fined. (R. 6). Under a commonsense analysis, Petitioner s conviction and accompanying sentence do not amount to an aggravated felony. 16

ii. Under the rule of lenity, Petitioner s conviction is not an aggravated felony because the CSA is ambiguous on its default sentencing provision. In immigration law, there is a longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien. INS v. Elias-Zacarias, 502 U.S. 478, 487 (1992); INS v. Errico, 385 U.S. 214, 225 (1966); Costello v. INS, 376 U.S. 120, 128 (1964); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). This Court has held that ambiguities in criminal statutes referenced in immigration laws should be construed in the noncitizen s favor. Carachuri-Rosendo, 130 S.Ct. at 2580. Likewise, the Second, Fourth, Eighth and Ninth Circuits have applied the rule of lenity when interpreting sentencing guidelines. Jeff Yates et. al., A War on Drugs or A War on Immigrants? Expanding the Definition of "Drug Trafficking" in Determining Aggravated Felon Status for Noncitizens, 64 MD. L. REV. 875, 909 (2005). Because of the severe consequences that noncitizens face with a finding of an aggravated felony, a narrow interpretation of aggravated felony that favors noncitizens should apply. Id. Petitioner s offense should not be categorized as an aggravated felony because the relevant criminal statute is ambiguous. The CSA is ambiguous with respect to whether 841(b)(1)(D) or 841(b)(4) is the default sentencing provision for violations of 841(a). The rule of lenity dictates that 841(b)(4) should be the default sentencing provision because such a construction would favor Petitioner, resulting in a misdemeanor sentence. As a misdemeanor, Petitioner s state conviction is not a felony punishable under federal law or an aggravated felony. C. Petitioner Is Eligible for Asylum Because She Qualifies as a Refugee Under 8 U.S.C. 1101(a)(42)(A). The lower courts failed to reach the merits of Petitioner s asylum claim because they erroneously concluded that her state conviction made her ineligible. (R. 11). However, because Petitioner s state conviction does not amount to an aggravated felony under the INA, Petitioner 17

is not precluded from applying for asylum. See Matter of B-, 20 I. & N. Dec. 427, 431 (B.I.A. 1991). Further, Petitioner is not precluded from asylum because she is in compliance with the requirement that a noncitizen file for asylum within one year of his or her arrival into the United States. 8 U.S.C. 1158(a)(2)(B) (2009). Petitioner arrived into the United States in May of 2004 and applied for asylum in October of the same year. (R. 6). Moreover, Petitioner qualifies as a refugee under 8 U.S.C. 1101(a)(42)(A) and she is eligible for asylum. 8 U.S.C. 1101(a)(42)(A) (2011). To be eligible for asylum, a noncitizen must prove that (1) she has a fear of persecution; (2) the fear is well-founded; (3) the persecution feared is on account of race, religion, nationality, membership in a particular social group, or a political opinion; and (4) she is unable or unwilling to return to her country or nationality because of a well-founded fear of persecution. 8 U.S.C. 1101(a)(42)(A). In order to prove a well-founded fear of persecution, an applicant must show that the fear is both subjectively genuine and objectively reasonable, meaning that the fear must have a basis in reality and must be neither irrational nor so speculative or general as to lack credibility. Ghasenmimehr v. INS, 7 F.3d 1389, 1390-91 (8th Cir. 1993) (per curiam). Here, because Petitioner has not experienced past persecution, she must show a wellfounded fear of persecution in order to meet the requirements for asylum. Petitioner can show that her fear is subjectively genuine and objectively reasonable as every member of her family has already been attacked. (R. 4-5). That Petitioner has a well-founded fear of persecution is supported by evidence of Tortolucci s actions including kidnapping, assault, and arson towards the Kurzban family. (R. 4-5). Tortolucci has persecuted and continues to persecute Petitioner s family members because of their membership in the Kurzban family, which constitutes a 18

particular social group. (R. 4-5); see infra II.A. For these reasons, Petitioner satisfies the definition of a refugee and qualifies for asylum. II. PETITIONER IS ENTITLED TO WITHHOLDING OF REMOVAL BECAUSE SHE MEETS THE STATUTORY REQUIREMENTS AS DESCRIBED IN THE IMMIGRATION AND NATIONALITY ACT AND HER STATE CONVICTION DOES NOT DISQUALIFY HER FROM RELIEF. The Fourteenth Circuit s decision should be overturned because even if Petitioner s claim for asylum fails, she is entitled to withholding of removal. This form of relief is a mandatory prohibition against removal of a person who establishes that his or her life or freedom would be threatened on account of race, religion, nationality, political opinion, or membership in a particular social group. 8 U.S.C. 1231(b)(3)(A) (2006). Petitioner is entitled to withholding of removal because the record shows that solely because of Petitioner s membership in the Kurzban family, she will be subjected to certain harm upon her return to Purifica. Additionally, Petitioner s prior state conviction does not disqualify her from this type of relief as it is not a particularly serious crime. A. Petitioner Is Eligible for Withholding of Removal Because She Meets the Statutory Requirements for Relief. i. Petitioner s membership in the Kurzban family qualifies as membership in a particular social group for withholding of removal and asylum purposes. The lower courts erroneously precluded Petitioner from both asylum and withholding of removal because they found that her membership in the Kurzban family did not qualify as membership in a particular social group. (R. 13). Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C. 1252(b)(4)(B) (2005). When determining if a group qualifies as a particular social group for asylum relief, the BIA examines whether the group shares a common, immutable characteristic... [such as] sex, color, or kinship ties... that the members of the group either cannot change, 19

or should not be required to change because it is fundamental to their individual identities or consciences. Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985), overruled in part on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439, 441 (B.I.A. 1987). The BIA has further specified that in addition to the immutable shared characteristic, the group must be socially visible and the characteristic must be sufficiently particular so as to encompass a discrete class of persons. Matter of S-E-G-, 24 I. & N. Dec. 579, 582 (B.I.A. 2008). Here, the only common characteristic at issue is the familial connection of being part of the Kurzban family. Petitioner was born into the Kurzban family; she cannot change the fact that she is biologically connected to the rest of her family. The group is socially visible as a family unit and easy to distinguish from the rest of the inhabitants of Purifica through both a shared name and public knowledge of the family connection. This group does not encompass an infinite number of persons, but simply those related to Mr. Kurzban. Based on the evidence in the record and recent holdings by several circuit courts, a reasonable adjudicator would be compelled to conclude that Petitioner is part of a particular social group through her family membership. Circuit courts have repeatedly supported the contention that family groups can qualify as a particular social group for the purposes of asylum and withholding of removal. The First Circuit pointed out that [t]here can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family. Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). Similarly, the First Circuit noted that a prototypical example [of a protected social group] would consist of the immediate members of a certain family, the family being a focus of fundamental affiliational concerns and common interests for most people. Ravindran v. INS, 976 F.2d 754, 761 n.5 (1st Cir.1992) (quoting 20

Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). Here, Petitioner is an immediate member of a particular nuclear family, and this Court should not preclude her from relief. For example, in Konan v. Attorney General of the United States, the Third Circuit remanded the case of an Ivory Coast noncitizen s petition for asylum, withholding of removal, and relief under the Convention Against Torture because the BIA failed to consider his claim of persecution due to his status as an immediate family member of a gendarme. 432 F.3d 497, 501 (3rd Cir. 2005). Though the Third Circuit did not consider substantial evidence on this issue, the court did note that Konan made a compelling case which the government [would] likely have difficulty refuting on remand due to reports, Konan s application for asylum, and affidavits showing the targeting of children of members of the gendarmerie. Id. at 502 n.3. Here, Petitioner can present similar evidence of the mob targeting the Kurzban family, including the threatening notes the family received, the statements of Petitioner and her family, and Petitioner s own application for asylum relief. (R. 4-7). Additionally, two recent cases from the Ninth Circuit support the idea that family membership can constitute membership in a particular social group. First, in Thomas v. Gonzales, the Ninth Circuit held that white South African family members who were targeted on account of their shared, immutable characteristic, namely, their familial relationship met the requirement of a protected group. 409 F.3d 1177, 1189 (9th Cir. 2005) (en banc), remanded on procedural issues by Gonzales v. Thomas, 547 U.S. 183 (2006). In its analysis, the Ninth Circuit relied on the Seventh Circuit s conclusion that a family constitutes a cognizable particular social group within the meaning of the law. Id. at 1186 (quoting Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997)). Two months later, the Ninth Circuit reaffirmed that an alien can establish 21

a prima facie case of persecution on account of membership in a familial social group. Bhasin v. Gonzales, 423 F.3d 977, 985 (9th Cir. 2005). In Bhasin, the applicant for asylum was told by her captors that all the members of her family would be eliminated. Id. Her sons were abducted by the persecutors, her daughters and son-in-law received threats referring to the disappearance of other members of the family, and her daughters and son-in-law went missing. Id. The Ninth Circuit concluded that these events constituted a strong prima facie case of persecution on account of membership in a familial social group. Id. Though Petitioner herself has not endured past persecution, her family members have been threatened, shot, burned, kidnapped, and beaten for their membership in the Kurzban family in a similar fashion to the threats and assaults that the Bhasin family suffered. (R. 4-7). In the same way, her membership in the Kurzban family qualifies as a protected ground. As evidenced by these decisions, there is widespread agreement among the circuit courts that membership in a family group can qualify as membership in a particular social group for asylum and withholding of removal purposes. Petitioner s membership in the Kurzban family similarly serves as a protected ground for her own relief from deportation. ii. The conditions Petitioner will face upon her return to Purifica satisfy both the BIA s definition of persecution and the standard of likelihood required for withholding of removal relief. The lower courts did not examine whether or not the conditions Petitioner would face upon return to Purifica would qualify as persecution, instead erroneously finding that her family membership did not qualify as a particular social group, and thus Petitioner was not entitled to relief. (R. 13); see infra II.A.1-2. Not only do the conditions qualify as persecution, but the conditions are directly attributable to Petitioner s membership in the Kurzban family. 22