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Second or Subsequent Possession Conviction is Not an Aggravated Felony

Carachuri-Rosendo v. Holder, 560 U.S. ___, 130 S. Ct. 2577 (2010)

The Supreme Court held that a second or subsequent simple drug possession conviction does not qualify as an aggravated felony under INA § 101(a)(43)(B) (“drug trafficking crimes”) and therefore does not preclude a lawful permanent resident from applying for cancellation of removal.

The petitioner in the case is a lawful permanent resident who lived in the United States since he was four years old. He was convicted of possession of marijuana and then possession of Alprazolam (Xanax). For this second offense, he was not prosecuted under Texas law as a recidivist, and the court sentenced him to only ten days in jail. Nonetheless, the Fifth Circuit held that petitioner’s second possession offense is an aggravated felony because he could have been punished as recidivist, and thus he is ineligible for cancellation of removal.

The case followed from the Supreme Court’s 2006 decision, Lopez v. Gonzales, 549 U.S. 47 (2006), involving a single drug possession conviction. In that case, the Court 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). After Lopez, a circuit split developed regarding whether a second possession conviction can qualify as an aggravated felony. 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.

The majority of circuits to decide the issue – the First, Second, Third, and Sixth Circuits -- had said that a person convicted a second time for simple possession has not been convicted of an aggravated felony in the absence of any recidivism finding in the proceedings before the convicting court. In contrast, the Fifth and Seventh Circuits had reached the opposite conclusion, finding that where a person could have been charged as a recidivist, a second possession charge qualifies as an aggravated felony regardless of whether there was any recidivism finding by the convicting court.

The BIA had agreed with the majority approach. It issued a precedent decision in petitioner Carachuri-Rosendo’s case. See Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007). The BIA, however, refused to apply its holding to petitioner Carachuri-Rosendo, finding that it was bound by Fifth Circuit law reaching the opposite conclusion.

The specific question before the Supreme Court was “Whether a person convicted under state law for simple drug possession (a federal law misdemeanor) has been ‘convicted’ of an ‘aggravated felony’ on the theory that he could have been prosecuted for recidivist simple possession (a federal law felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.” The Court looked to the terms of the immigration statute and “the ‘commonsense conception’ of those terms.” The Court noted that Carachuri-Rosendo’s “petty simple possession offense is not typically thought of as an ‘aggravated felony’ or as ‘illicit trafficking.’”

Further, the Court rejected the government’s argument that hypothetically, Carachuri-Rosendo’s conduct could have received felony treatment under federal law. The Court found that immigration officials must look to what the person was actually convicted of as opposed to what might have been charged by prosecutors. It also noted that Carachuri-Rosendo was not afforded the notice and process required for a felony possession charge. In addition, “[i]t is quite unlikely that the ‘conduct’ that gave rise to Carachuri-Rosendo’s conviction would have been punished as a felony in federal court.”