Current Immigration News

By Michael Spychalski

On March 31, 2010, the Supreme Court will hear arguments on an immigration case addressing whether a second drug possession conviction qualifies as an aggravated felony under INA § 101(a)(43)(B) (drug trafficking crimes). The main issue is whether or not a person convicted of simple possession under state law has been convicted of an aggravated felony, on the theory that the person could have been prosecuted for recidivist simple possession even if there was no charge or finding of a prior conviction in his or her prosecution for possession. This case is out of the 5th Circuit Court’s Carachuri-Rosendo v. Holder.

The petitioner is a lawful permanent resident who has lived in the United States for most of his life. He was convicted of possession of marijuana and then possession of Alprazolam (Xanax). He was not prosecuted under Texas law as a recidivist for the second offense. Nevertheless, the Fifth Circuit held that the petitioner’s second possession offense is an aggravated felony because he could have been punished as a recidivist. Therefore, he does not have a defense in immigration court.

Some circuit courts have stated that the alien must have been prosecuted as a recidivist while others say that the fact that the alien could have been prosecuted as a recidivist is enough for an aggravated felony. Currently, Lopez v. Gonzales is followed; this case involves a single drug possession conviction. In it, the Supreme Court decided that drug possession convictions that are state felonies but would not be punishable as felonies under federal law are not aggravated felonies. Under federal law, a person with a previous possession conviction may receive a felony sentence for a possession offense, but only if the prosecutor seeks a recidivist sentencing enhancement.

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