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Drug Possession is Not an Aggravated Felony On December 5, 2006, the Supreme Court, in an 8-1 decision, held that drug possession convictions that qualify as state felonies, but would not qualify as felonies under federal law, are not “aggravated felonies” as defined under INA § 101(a)(43)(B) ("drug trafficking crimes"). Lopez v. Gonzales, No. 05-547, 549 U.S. ___ (2006) | |||||
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Latest Developments
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BIA Issues Post-Lopez Decisions Regarding Multiple State Drug Possession Convictions The BIA issued two decisions addressing multiple state possession convictions, Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), and Matter of Thomas, 24 I&N Dec. 416 (BIA 2007). The BIA said that in cases arising outside the Second, Fifth, and Seventh Circuits, a noncitizen with more than one state drug possession conviction is not an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. The New York State Defenders Association Immigrant Defense Project (IDP) has issued a practice advisory examining the recent BIA decisions and discussing arguments for individuals in the Second, Fifth and Seventh Circuits. Post-Lopez Litigation Regarding Second or Subsequent Drug Possession Convictions In removal cases nationwide, the government is arguing that any state drug offense where facts outside the record of conviction indicate that the person has a prior drug offense should be treated as the equivalent of a conviction for a federal recidivist felony and thus constitutes an aggravated felony under INA § 101(a)(43)(B). The New York State Defenders Association Immigrant Defense Project (IDP) has developed arguments to counter the government's position and has filed amicus briefs in cases at the BIA and in the circuit courts. The amicus briefs are available on IDP's webpage. IDP is aware of cases raising post-Lopez issues in the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits, as well as before the BIA. If you have a case raising any post-Lopez issues, please contact IDP, Manny Vargas (MVargas@nysda.org) or Alina Das (ADas@nysda.org), for assistance. Already, IDP's amicus support has resulted in the BIA's reconsidering a case. In an unpublished decision dated April 18, 2007, the BIA reconsidered and remanded a case in which, shortly after Lopez, it had found a second drug possession offense to be a "drug trafficking" aggravated felony. While the Board's reversal of its prior decision was based on First Circuit case law, it may signal new awareness that the Board needs to look more carefully at cases alleged to involve multiple drug convictions. On July 12, 2007, AILF’s Legal Action Center represented a respondent in oral argument before the BIA in a case involving two drug possession convictions. The LAC argued that under Lopez, a second state drug possession offense is not an aggravated felony if the second offense did not charge the person as a recidivist or otherwise allow the person to challenge the validity of the original conviction. The Board Members presiding over this case were Lauri Filppu, Roger Pauley and Christopher Grant (temporary Member). The Immigrant Defense Project of the New York State Defenders Association and the Immigrant Rights Clinic of Washington Square Legal Services filed an amicus brief in support of the respondent. Supreme Court Remands Several Cases in Light of Lopez The Supreme Court granted a writ of certiorari, vacated the judgment, and remanded the cases to the 8th and 5th Circuits for further consideration in light of Lopez v. Gonzales. The cases are Tostado-Tostado v. Carlson (8th Circuit, No. 06-6766), Galindo-Pena v. Gonzales (5th Circuit, No. 05-60908), and Salazar-Regina, et al., v. Moore (5th Circuit, No.03-41492). Supreme Court Issues Opinion in Lopez v. Gonzales The Supreme Court’s recent decision Lopez v. Gonzales held that drug possession convictions that are state felonies, but would not be punishable as felonies under federal law, are not “aggravated felonies” as defined by INA § 101(a)(43)(B). In an 8-1 decision, the Court rejected the government’s arguments for why the state classification of the crime should govern. Justice Souter wrote the majority opinion, from which Justice Thomas dissented. Read the opinion. Prior to the decision, the circuits were split on whether a state drug possession charge that would not qualify as a federal felony may qualify as an “aggravated felony.” Several circuits, including the First, Fourth, Fifth, Eighth, Tenth, and Eleventh Circuits and the Board of Immigration Appeals in Matter of Yanez-Garcia, 23 I&N Dec. 390 (BIA 2002), had adopted the government's expansive interpretation of what constitutes an “aggravated felony.” The Supreme Court’s decision in Lopez reverses the adverse decisions. The Court also dismissed the writ of certiorari in the companion case, Toledo-Flores v. U.S., No. 05-7664, 549 U.S. ___ (2006). Toledo-Flores addressed the aggravated felony issue in the criminal sentencing context. The Court noted that the writ of certiorari was improvidently granted. | |||||
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Additional Resources
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The New York State Defender’s Association (NYSD), Immigrant Defense Project, which along with the National Immigration Project coordinated amicus briefing in Lopez v. Gonzales and Toldeo Flores v. U.S., has issued several practice advisories on the impact of the Lopez decision.
Prior to the Supreme Court’s decision in Lopez, many individuals were ordered removed and/or denied the opportunity to apply for relief based on a now-reversed interpretation of INA § 101(a)(43)(B). These individuals may want to seek reconsideration and reopening before the immigration court and BIA, as well as seek judicial remedies. Below are sample motions that will help you seek remedies for clients who were ordered removed under INA § 240, but whose convictions are not aggravated felonies under Lopez. These motions are samples and, at a minimum, require a lawyer familiar with the facts of the client’s case to fill in the specified information. There are numerous factors that will affect the type of relief sought, so please be sure to tailor the motion to the specific needs of your client.
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