On June 15, 2010, the U.S. Supreme Court voted unanimously in Carachuri-Rosendo v. Holder that a lawful permanent resident (LPR) who is convicted of minor drug possession offenses does not warrant classification as having been convicted of an “aggravated felony.” As a result, the Court held that Mr. Carachuri-Rosendo cannot be deported without an opportunity to make a case for why he should be allowed to remain in the United States. In rendering its decision, the Supreme Court reaffirmed a previous ruling, in Leocal v. Ashcroft, where it held that ambiguities in criminal statutes referenced in immigration laws should be construed in a non-citizen’s favor.
This decision will affect thousands of immigrants who have criminal convictions in the criminal court system and then face a separate set of rules under the federal immigration court system. While the government has been urging the Court to adopt a rule which would allow immigration authorities to reclassify a misdemeanor conviction as an aggravated felony, the Court found that Carachuri-Rosendo’s “petty simple possession offense is not typically thought of as an ‘aggravated felony.’”
Jose Angel Carachuri-Rosendo, a long time legal permanent resident of the United States, was convicted in a Texas state court of two misdemeanor crimes: one being the possession of less than two ounces of marijuana, and the other of possession of an anti-anxiety medication without prescription. For both counts, he was sentenced to 30 days in jail. As a result, he was put into removal proceedings in Immigration Court, and since he had, under the Immigration Act, committed an aggravated felony, Carachuri-Rosendo was considered ineligible for the relief of cancellation of removal for permanent residents.
The Board of Immigration Appeals (BIA) affirmed the decision, but noted that in circuits without a decision on point that the conviction would need to be a second or subsequent offense. The Fifth Circuit affirmed the decision relying on Lopez v. Gonzales. Certiorari was granted by the Supreme Court to resolve the circuit split.
Justice Stevens wrote the decision that reversed the Circuit court. The Court determined that it was insufficient that the defendant’s conduct could possibly have authorized a felony conviction under federal law as he had not been actually convicted of a crime that was a felony under federal law and thus could not be disqualified from applying for cancellation of removal. Justice Scalia and Justice Thomas concurred in the judgment as the Texas statute required that Carachuri-Rosendo be “convicted of” the possession of marijuana charge based on prior conviction as a recidivist, which he was not. Justice Thomas also concurred that the second crime was only a misdemeanor, and not a felony, and that Lopez was incorrectly decided.
This decision gave five reasons for the reversal. Firstly, reliance on the “actual conviction” and not a speculative approach to what could have been the conviction. Secondly, he had not been charged as a recidivist and thus the “mandatory notice and process requirements” were not met. Thirdly, the Fifth Circuit misinterpreted Lopez by using a “hypothetical felony approach.” Fourthly, the government’s speculative approach was misleading, as it was improbable that he would have been charged in federal court as a felon. Lastly, the court applied the adage that ambiguities must be construed in the accused’s favor.
A felony is a crime for which the “maximum sentence of imprisonment authorized” is “more than one year.” A recidivist simple possession offense is punishable as “felony” and subject to a two-year sentence. Thus, only if the existence of prior conviction had been charged and an opportunity to challenge the validity given could this be authorized as a felony punishment.
In 1996, Congress expanded the definition of aggravated felonies, lengthening the list of crimes that could trigger deportation for an immigrant, including even minor crimes where the person did not serve any jail time. The Court, in Carachuri-Rosendo, made clear that while many crimes are considered felonies under immigration law, minor drug possession offenses are not aggravated felonies and will thus not be considered as such.
“The decision is an important step toward addressing some of the absurdities of the immigration laws passed in 1996 that treat a shoplifter and a murderer in the same manner,” said Benjamin Johnson, Executive Director of the American Immigration Council. Thus, the decision in Carachuri-Rosendo restores a level of measure and rationality to immigration policies that often are unnecessarily strict and unforgiving. This decision will quickly become a major presence in Immigration Courts across the country.
Danielle L. C. Beach is the Managing Partner of Beach-Oswald Immigration Law Associates, PC, in Washington, D.C.