aggravated felony

Carachuri-Rosendo v. Holder

Issues

Whether a deportable alien is ineligible to challenge his removal proceedings because he could have been prosecuted for recidivist narcotics possession, an “aggravated felony” for the purposes of federal immigration law, even though the alien was not prosecuted for recidivist possession in state court?

 

Under the Immigration and Nationality Act, a deportable lawful permanent resident is ineligible to petition the Attorney General for cancellation of removal proceedings if he has a conviction for an “aggravated felony.” Congress defines “aggravated felony” as including any felony under the Controlled Substances Act. Under that Act, simple possession of most narcotics is a misdemeanor. However, possession of a controlled substance by an individual who has a prior conviction for possession is a felony. This case will resolve a circuit split in deciding whether a deportable alien who has been twice convicted in state court for non-felony simple possession is ineligible to seek cancellation of removal proceedings on the theory that the alien has been, for the purposes of federal immigration law, convicted of an “aggravated felony” because he could have been prosecuted for felony recidivist-possession under federal law.

Questions as Framed for the Court by the Parties

Under the Immigration and Nationality Act, a lawful permanent resident who has been "convicted" of an "aggravated felony" is ineligible to seek cancellation of removal. 8 U.S.C. § 1229b(a)(3). The courts of appeals have divided 4-2 on the following question presented by this case:

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.

Petitioner Jose Angel Carachuri-Rosendo (“Carachuri-Rosendo”) came to the United States in 1993 and thereafter became a lawful permanent resident. See Carachuri-Rosendo v. Holder, 570 F.3d 263, 264 (5th Cir.

Written by

Edited by

Additional Resources

Submit for publication
0

Gonzales v. Duenas-Alvarez

Issues

Does a conviction as an accomplice to a theft, rather than as the principal, constitute a “theft offense” that satisfies the “aggravated felony” standard of the Immigration and Nationality Act?

 

In 2002, Duenas-Alvarez, a Peruvian national, was found guilty of a violation of California Vehicle Code § 10851(a), which makes it illegal to take a vehicle without the owner’s consent or to aid or abet in such a taking. The Department of Homeland Security (DHS) sought Duenas-Alvarez’s deportation based on the Immigration and Nationality Act (INA), which allows the government to deport aliens convicted of an “aggravated felony.” “Theft offenses” are one type of crime included in the category of aggravated felonies. The Ninth Circuit Court of Appeals overturned the deportation order, reasoning that because the California statute allows for convictions based solely on aiding and abetting, conviction under the statute did not necessarily mean that Duenas-Alvarez had committed a “theft offense.” The DHS contends that simply because accomplice liability involves a lower level of involvement in an offense, that does not remove it from the category of “theft offenses.” The Supreme Court’s decision in this case will affect the immigration status of over 8,000 resident aliens who currently face deportation.

 

    Questions as Framed for the Court by the Parties

    Whether a “theft offense,” which is an “aggravated felony” under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)((G), includes aiding and abetting.

    In 2002, Luis Alexander Duenas-Alvarez, a Peruvian citizen and lawful permanent resident in the United States since 1998, pled guilty in the Superior Court of California to unlawfully driving or taking a vehicle. Petition for a Writ of Certiorari, at 5.

    Submit for publication
    0

    Lopez v. Gonzales; Toledo-Flores v. United States

    Issues

    If a permanent resident of the United States is convicted in state court of a drug offense that state law classifies as a felony but that federal law classifies as a misdemeanor, should the offense qualify as an “aggravated felony” for the purposes of federal immigration and sentencing law, resulting in deportation and harsher sentencing under federal law?

     

    Both Jose Antonio Lopez and Reymundo Toledo-Flores are permanent residents of the United States who were convicted of drug crimes that are felonies at the state level but misdemeanors under federal law. The government argues that both Lopez’s and Toledo-Flores’s crimes qualify as “aggravated felonies.” If that is the case, Lopez will be barred from seeking a waiver of the deportation order issued against him while Toledo-Flores will be subject to a stricter sentence under the mandatory Federal Sentencing Guidelines. Lopez and Toledo-Flores argue that their drug crimes do not meet the definition of an aggravated felony because they are not felonies under federal law. Thus, the Court must decide whether drug offenses that are state felonies but federal misdemeanors satisfy the federal statutory definition of aggravated felony.

    Questions as Framed for the Court by the Parties

    Lopez v. Gonzales

    Whether an immigrant who is convicted in state court of a drug crime that is a felony under the state’s law but would only be a misdemeanor under federal law has committed an “aggravated felony” for purposes of the immigration laws.

    Toledo-Flores v. United States

    Has the Fifth Circuit erred in holding – in opposition to the Second, Third, Sixth, and Ninth Circuits – that a state felony conviction for simple possession of a controlled substance is a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) and hence an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B), even though the same crime is a misdemeanor under federal law?

    Lopez v. Gonzales, 417 F.3d 934 (8th Cir. 2005)

    Jose Antonio Lopez is a permanent resident of the United States. A South Dakota state court convicted Lopez of aiding and abetting the possession of a controlled substance, a felony crime in South Dakota. Lopez v. Gonzales, 417 F.3d 934, 935 (8th Cir. 2005).

    Additional Resources

    Submit for publication
    0

    Nijhawan v. Holder

    Issues

    Whether the petitioner's conviction for fraud where he stipulated that his fraud caused a loss of more than $100 million but where the jury did not find the amount of the loss for which the petitioner was individually responsible qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(M)(i) of the Immigration and Nationality Act.

     

    Manoj Nijhawan was convicted of conspiracy to commit bank, mail, and wire fraud, and for conspiracy to commit money laundering. Upon his conviction, Immigration Court proceedings were brought against him and he was found to be subject to deportation under 8 U.S.C. § 1101(a)(43)(M)(i) ("Subsection (M)(i)"). Subsection (M)(i) provides that an "aggravated felony," for purposes of deportation, includes a conviction for "an offense that (i) involves fraud or deceit in which the loss to the victim exceeds $10,000." On appeal, the Third Circuit Court of Appeals held that the loss determination used for sentencing was sufficient to meet the loss requirement under Subsection (M)(i), even though it was not a necessary element of his conviction. Nijhawan challenges this ruling arguing that both the "fraud or deceit" and "loss" elements must be found by a jury in order for Subsection (M)(i) to apply. Accordingly, he argues that he cannot be deported because the elements of the criminal statute under which he was convicted do not match those required for deportation under Subsection (M)(i). The United States argues that the loss element follows a "qualifier" and therefore need not be an element of the conviction for Subsection (M)(i) to apply.

    Questions as Framed for the Court by the Parties

    Whether petitioner's conviction for conspiracy to commit bank fraud, mail fraud, and wire fraud qualifies as a conviction for conspiracy to commit an ‘offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,' 8 U.S.C. 1101(a)(43)(M)(i) and (U), where petitioner stipulated for sentencing purposes that the victim loss associated with his fraud offense exceeded $100 million, and the judgment of conviction and restitution order calculated total victim loss as more than $680 million.

    Manoj Nijhawan, an Indian citizen, lawfully entered the United States in July, 1985 and became a permanent resident. See Nijhawan v. Att'y Gen. of the U.S., 523 F.3d 387 (3d Cir. 2008); On the Docket: Supreme Court News: Nijhawan v.

    Written by

    Edited by

    Submit for publication
    0

    Torres v. Lynch

    Issues

    In order for a state-law criminal offense to qualify as an aggravated felony because that offense is “described in” a federal criminal statute, must the state offense contain all of the elements of the corresponding federal offense—including the federal jurisdictional requirements?

     

    The Supreme Court will consider whether a state offense that is “described in” a federal criminal statute must meet all elements of the statute, including jurisdictional requirements, to constitute an aggravated felony. See Brief for Petitioner, Jorge Luna Torres at 2. Petitioner Jorge Luna Torres argues that under the plain meaning of the aggravated felony definition, the New York offense of arson is not described in the federal arson offense because it does not satisfy the federal statute’s interstate commerce requirement. See id. But U.S. Attorney General Loretta Lynch contends that it is reasonable to interpret that a state offense may constitute an aggravated felony under the relevant federal offense, even if the conduct does not meet a jurisdictional element. See Brief for Respondent, Loretta E. Lynch at 17. The Court’s ruling will clarify the definition of “aggravated felony,” and impact the relationship between immigration law and criminal law, particularly with respect to immigrants facing deportation. See Brief of Amici Curiae National Association of Criminal Defense Lawyers et al. (“NACDL”), in Support of the Petitioner at 1.

    Questions as Framed for the Court by the Parties

    Does a state offense constitute an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks?

    Jorge Luna Torres, a native and citizen of the Dominican Republic and a lawful permanent resident of the United States, plead guilty to and was convicted of attempted third-degree arson in violation of New York State Penal Law §§ 110.00 and 150.10 in 1999. Torres v. Holder, 764 F.3d 152, 153 (2d Cir.

    Written by

    Edited by

    Additional Resources

    Submit for publication
    0
    Subscribe to aggravated felony