By Robert L. Reeves & Nancy E. Miller

Until now, it was an open question whether a non-citizen could be deprived of all relief from deportation as a result of two minor drug possession convictions.  However, today, the United States Supreme Court applied the rule of common sense and held that a non-citizen who has been convicted of a simple possession offense that has not been specifically enhanced as a result of a prior drug-possession conviction has not been convicted of a felony punishable as such under the Controlled Substance Act (CSA).  This is extremely important because a conviction under the CSA as a recidivist would render the non-citizen to be a drug trafficker which is an aggravated felony.  As such, he would be ineligible to apply for any form of relief from deportation.
That is exactly what happened to Jose Angel Casachuri-Rosendo.  Carashuri was born in Mexico but came to the United States with his parents in 1983 when he was 5 years old.  With the exception of his first five years, he spent his whole life in the United States.  At the time of his deportation hearing, his mother, two sisters, common-law wife and four children were all American citizens.  He was a lawful permanent resident.  In 2004, he pleaded guilty to possessing less than two ounces of marijuana (one cigarette) and was sentenced to 20 days of confinement by a Texas court.  In 2005, he pleaded nolo contrendre (no contest) to possessing less than 28 grams – one tablet – of Xanax without a prescription.  For this offense, he was sentenced to 10 days in jail.   Although the prosecutor could have done so, he did not seek an enhancement in the second case based on the prior conviction. In 2006, on the basis of the second conviction, DHS placed Carachuri in removal proceedings.  He applied for cancellation of removal for lawful permanent residents.  The immigration judge held that the second conviction for simple possession was an aggravated felony which made him ineligible for cancellation.  The Board of Immigration Appeals and the United States Court of Appeals for the Fifth Circuit agreed with the immigration judge.  The Supreme Court agreed to take the case in order to decide whether second or subsequent simple possession convictions are aggravated felonies when the conviction is not based on the fact of a prior conviction.  They have now ruled that they are not.

The court acknowledged the importance of determining whether or not the non-citizen has been convicted of an aggravated felony because one convicted of an aggravated felony is not eligible to apply for of cancellation of removal for lawful permanent residents (or most other forms of relief from deportation).  Aggravated felony convictions include illicit trafficking in controlled substances which is a drug trafficking crime.  A drug trafficking crime is any felony punishable under the Controlled Substance Act.  A felony is a crime for which the maximum term of imprisonment authorized is more than one year.  While simple possession is a crime under the CSA, it can be punished as either a felony or a misdemeanor.  However, a conviction for a simple possession offense after a prior conviction for simple possession (known as a recidivist simple possession) can be punished as a felony with a prison sentence of up to two years.
DHS argued that Carachuri could be found to be an aggravated felon because the prosecutor could have charged him with simple possession after a prior conviction.  However, the Supreme Court said that is not good enough.  Applying the “commonsense conception” to the relevant terms, the Court held that for a conviction to be an aggravated felony under immigration law, a state drug conviction must be punishable as a felony under federal law and it must specifically charge the existence of the prior simple possession conviction before trial or before a guilty plea. Because the prosecutor did not do so, the conviction was not an aggravated felony.  

A finding that one has been convicted of an aggravated felony can spell the end of one’s life in the United States.  For that reason, it is essential to be represented by an attorney who is knowledgeable and experienced in immigration law in both the criminal and immigration court proceedings.