Second Drug Offense is Not Necessarily Aggravated Felony23 June 2010
Dear Atty. Lou,
My cousin is in removal proceedings because of his conviction of a drug offense. He has been residing in the United States since he was ten years old. He is now 25 years old and he was informed that he has no chance to be saved from deportation because his drug offense is an aggravated felony. We read in the papers that the Supreme Court rendered a decision that drug offense is not necessarily an aggravated felony. So I was hoping that this decision will assist my cousin in defending himself against deportation/removal. Please enlighten us on this matter.
Dear Prima C,
You are referring to the June 14, 2010 decision of the Supreme Court in the case of Carachuri-Rosendo v. Holder, Case No.09-60 where it was decided that a person
who has been convicted of a second or subsequent simple possession of a controlled substance offense is not considered to be convicted of an aggravated felony at least where there was no finding of a prior conviction.
Generally, a non citizen who at any time after admission has been a narcotic/drug addict or a drug abuser is deportable. The exception is when the conviction is for a “single offense involving possession for one’s own use of 30 grams or less of marijuana.” In the case of Jose Carachuri, he was convicted of possessing less than two ounces of marijuana and received a jail term of 20 days. A year later, he pleaded no contest to possession of one tablet of prescription medication Xanax without prescription. According to the Department of Homeland Security, his second simple possession conviction constituted an aggravated felony. And with an aggravated felony, Carachuri is ineligible for cancellation of removal and is deportable. The Fifth Circuit Court of Appeals upheld this decision. On appeal, the Supreme Court held that only recidivist simple possession offenses are punishable as a federal felony under that Controlled Substances Act. A noncitizen's state conviction for a second or subsequent possession will not be considered an aggravated felony on the basis of recidivism unless the noncitizen's status as a recidivist was either admitted by the noncitizen at plea or determined by a judge or jury in connection with a prosecution for the subsequent simple possession offense.
In writing the decision, Justice Stevens sent a strong a message that the aggravated felony provisions have become nonsensical. He stated in several paragraphs to that it makes no sense to categorize simple possession as an aggravated felony.
The impact of this decision relates to availability of relief to cases of individuals that may have two misdemeanor offenses where applicable. It does not change the general rule on inadmissibility or removability ground based on drug convictions. What must be emphasized here is that in Carachuri, the drug offense was for two ounces of marijuana and not any other controlled substance.
I hope this information about this new case is helpful
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at email@example.com or check their website at www.tancinco.com. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to firstname.lastname@example.org)