subject: Virginia Immigration Lawyer Aggravated Felony [print this page] Virginia Immigration Lawyer Aggravated Felony
Carachuri-Rosendo v. Holder, 2010 U.S. LEXIS 4764 (U.S. June 14, 2010)
Section 1101(a)(43)(B) defines that term to include, inter alia, "illicit trafficking in a controlled substance . . . including a drug trafficking crime" as defined in 18 U.S.C. 924(c), which, in turn, defines a "drug trafficking crime" as a "felony punishable under," inter alia, "the Controlled Substances Act (21 U.S.C. 801 et seq.)." A felony is a crime for which the "maximum term of imprisonment authorized" is "more than one year." 3559(a). Simple possession offenses are ordinarily misdemeanors punishable with shorter sentences, but a conviction "after a prior conviction under this subchapter [or] the law of any State . . . has become final" -- a "recidivist" simple possession offense -- is "punishable" as a "felony" under 924(c)(2) and subject to a 2-year sentence. Only this "recidivist" simple possession category might be an "aggravated felony" under 8 U.S.C. 1101(a) (43). A prosecutor must charge the existence of the prior conviction. See 21 U.S.C. 851(a) (1). Notice and an opportunity to challenge its validity, 851(b)-(c), are mandatory prerequisites to obtaining a punishment based on the fact of the prior conviction and necessary prerequisites to "authorize" a felony punishment, 18 U.S.C. 3559(a), for the simple possession offense at issue.
Factual Background:
Petitioner an LPR of the United States was convicted twice for misdemeanor drug offense under the Texas law. First, he was convicted for possession of a small amount of marijuana, for which he received twenty days in jail. For the second, possession without a prescription of one anti-anxiety tablet, he received 10 days. Texas law, like federal law, authorized a sentencing enhancement if the State proved that petitioner had been previously convicted of a similar offense, but Texas did not seek such an enhancement here. After the second conviction, the Federal government initiated removal proceedings against the petitioner stating that the second simple possession conviction amounted to aggravated felony, hence removable. The petitioner argued that the above holding is untenable since his second conviction was not enhanced or mentioned on the first conviction.
Relying on the holding in Lopez v. Gonzales, 549 U.S. 47, 56, 127 S. Ct. 625, 166 L. Ed. 2d 462 -- that to be an "aggravated felony" for immigration law purposes, a state drug conviction must be punishable as a felony under federal law -- the court used a "hypothetical approach," concluding that because petitioner's "conduct" could have been prosecuted as a recidivist simple possession under state law, it could have also been punished as a felony under federal law.
The Court noted that ambiguities in criminal statutes referenced in immigration laws should be construed in the noncitizen's favor.
The Court concluded that the petitioner was not convicted for aggravated felony.
Immigration Implication:
Whenever a non citizen faces aggravated felony charges, the following things have to be keep in mind:
Whether the state conviction was enhanced as a felony or not?
Whether a state conviction amounts to a felony under the federal law.
The difference made by the above court is that it distinguished between a recidivist charge (a subsequent conviction enhanced on the basis of a prior conviction) and a subsequent conviction which is not a recidivist conviction, which in turn still qualifies as a misdemeanor, and not as a felony both for state and federal law purpose and for immigration purposes. Hence, people with minor conviction history, now can move the court to avoid removal proceedings, stating that their state convictions do not amount to felony, unless enhanced by the state to the effect or has a corresponding a felony status under the federal law.
