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. In 2004, in a Texas court, he pled guilty to misdemeanor possession of marijuana. In 2005, again in a Texas court, he pled nolo contendere to misdemeanor possession of Alprazolam (“Xanax”). In the second action, Carachuri-Rosendo was not tried as a recidivist.
In 2006, Carachuri-Rosendo received notice that he had become deportable under 8 U.S.C. § 1227(a)(2)(B)(i), which classifies any alien who has “been convicted of a violation of . . . any law . . . of a State . . . relating to a controlled substance” as deportable. Certain deportable aliens can petition the Attorney General pursuant to 8 U.S.C. § 1229b(a) to cancel removal proceedings, unless the alien has been convicted of an “aggravated felony.”
Carachuri-Rosendo moved for cancellation of his removal proceedings, but an immigration judge found him ineligible under 8 U.S.C. § 1229b(a), ruling that Carachuri-Rosendo had committed an “aggravated felony.” The term “aggravated felony” is defined in the Immigration and Nationality Act (“INA”), and includes any “drug trafficking crime.” A “drug trafficking crime” includes “any felony punishable under the Controlled Substances Act (“CSA”).” Although simple, first-time possession of a controlled substance is usually a misdemeanor under the CSA, it is a felony for an individual to possess a controlled substance after already being convicted for a narcotics offense under state or federal law.
The immigration judge ruled that Carachuri-Rosendo had committed a drug trafficking crime because his second misdemeanor conviction under state law could hypothetically qualify as a felony under the CSA in light of his prior drug-related conviction. The judge’s ruling meant, in turn, that Carachuri-Rosendo had been ‘convicted’ of an aggravated felony under the INA, and that he was therefore ineligible to petition for cancellation of his removal proceedings under 8 U.S.C. § 1229b(a).
Carachuri-Rosendo appealed to the Board of Immigration Appeals (“BIA”), which affirmed the lower court’s holding. He then appealed to the United States Court of Appeals for the Fifth Circuit, which agreed with the BIA and held that the he was ineligible to petition for cancellation. The Fifth Circuit acknowledged a split among the federal circuit courts on the question of whether the second of two state law misdemeanor convictions qualifies as an “aggravated felony” under federal law because the second conviction could have been prosecuted as a felony under the CSA. In the Fifth and Seventh Circuits, the second state law misdemeanor is considered an “aggravated felony.” However, in the First, Second, Third and Sixth Circuits, the second state law violation does not qualify as an “aggravated felony” unless the alien was actually convicted of recidivist possession under state law. The Supreme Court granted certiorari on December 14, 2009.
Under the Immigration and Naturalization Act (“INA”), a non-citizen may enter and remain in the United States pursuant to the INA’s framework. The INA also establishes a structure for the removal of non-citizens from the United States. Once an individual becomes removable, he or she may apply to the US Attorney General to seek a discretionary cancellation of removal. Non-citizens who have been “convicted of an aggravated felony” are categorically ineligible for discretionary cancellation. This case asks whether an individual convicted under state law for simple drug possession (a federal 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 simple possession. The Fifth Circuit answered this question in the affirmative.
What is the Plain Meaning of the Text of the INA?
Petitioner Jose Angel Carachuri-Rosendo (“Carachuri-Rosendo”) argues that he has not been convicted of an aggravated felony within the meaning of the INA because the state court that convicted him of his second simple possession offense did not make a charge or finding of recidivism. Carachuri-Rosendo argues that the Fifth Circuit’s holding cannot be squared with the plain meaning of the text of the INA. The INA, Carachuri-Rosendo argues, requires the convicting court to make a finding of recidivism and not just the finding made by the Fifth Circuit that the defendant could have been prosecuted for recidivist possession—a federal law felony. . Respondent Attorney General Holder argues, however, that the INA does not mandate such a finding. Holder argues that the term “aggravated felony,” as used in the INA, is defined to include any “felony punishable under the Controlled Substances Act.” Holder asserts that the Controlled Substances Act treats “drug trafficking” as a felony, and that “drug trafficking” includes recidivist possession offenses within its definition. . Focusing on the term ‘punishable,’ Holder argues that Carachuri-Rosendo was in fact punishable under the Controlled Substances Act because his second drug offense could have been prosecuted under federal law as recidivist possession.
Carachuri-Rosendo responds to Holder’s argument by pointing out that while the Controlled Substances Act may use the term ‘punishable,’ the INA requires an individual to be “convicted” of such punishable conduct. Thus, Carachuri-Rosendo argues, in order to be convicted of a felony punishable under the Controlled Substances Act, there must first have been a “formal judgment” by the convicting court that he  possessed a controlled substance and  he did so after previously having been convicted of a drug offense. . Carachuri-Rosendo argues that the court convicting him of simple possession made no such finding, but rather, simply found that he had in his possession a tablet of Xanax. Thus, he argues that the Fifth Circuit in essence has allowed the immigration judge to “bundle [two simple possession convictions] together for the first time in removal proceedings” and to use the combination as a basis for denying Carachuri-Rosendo access applying to the Attorney General for discretionary cancellation of removal.
Attorney General Holder, however, argues that such bundling is appropriate, although he does not utilize the term “bundling.” Rather, he maintains the position that Carachuri-Rosendo’s second simple possession conviction could have been punished under federal law pursuant to the recidivist possession provision. Thus, Holder argues, Carachuri-Rosendo has been “convicted” of an offense “punishable” under the Controlled Substances Act.
Congressional Purpose: Why did Congress include the “Aggravated Felony” Provisions in the INA?
Attorney General Holder also looks to Congress’s purpose in including the “aggravated felony” provisions of the INA to support his position. He argues that Congress, in response to members of the public who viewed criminal aliens without favor, determined that “aliens who commit serious drug crimes should be removable from the United States and should not be eligible for immigration benefits.” Looking to the history of the laws against recidivist drug possession, Holder argues that Congress clearly intended to deny immigration benefits to resident aliens who, like Carachuri-Rosendo, have been repeatedly convicted of drug possession crimes.
Carachuri-Rosendo, on the other hand, looks to the way Congress has treated drug possession in other provisions of the Controlled Substances Act to support his argument that the convicting court must make a finding of recidivism before he can be treated under the INA as having been convicted of an aggravated felony. Carachuri-Rosendo draws upon an example to illustrate his point. He argues that although the Controlled Substances Act includes “possession with intent to distribute” as an aggravated felony, there are a number of states that don’t have an offense that corresponds with the federal crime. Thus, for individuals convicted in a state without the corresponding offense, they would be treated under the INA as being convicted of a simple-possession misdemeanor, rather than the aggravated felony—even if such an individual was in possession of a large quantity of drugs and could have been convicted of a felony if prosecuted in federal court. The point ultimately being, Carachuri-Rosendo argues, that for the purposes of the INA’s discretionary cancellation provision, the pertinent question is what the convicting court found to be the offense conduct, not the conduct for which the defendant could hypothetically have been prosecuted and convicted.
Carachuri-Rosendo also points the Court towards the illegal re-entry statute, pursuant to which individuals convicted of an aggravated felony who illegally re-enter the United States could be prosecuted and imprisoned for up to 20 years. Individuals whose only offenses are three or more drug-related misdemeanors, however, only face a maximum penalty of up to 10 years. Thus, Carachuri-Rosendo argues, an individual who has multiple simple-possession offenses will only face the 20-year maximum for illegal reentry if that individual has been prosecuted and convicted of an aggravated felony, which would require a finding of recidivism. In other words, Carachuri-Rosendo argues, as it would be inappropriate under the illegal re-entry statute, for an immigration judge to simply “bundle” multiple simple-possession offenses together to find an aggravated felony when the convicting court never made a finding of recidivism, so too would it be inappropriate in the context of the discretionary cancellation provision.
The Supreme Court’s decision in this case will determine whether a deportable alien who has two state law misdemeanor drug possession convictions loses the right to petition for cancellation of his removal proceedings because the second violation could have been prosecuted as felony recidivist-possession under federal law. Petitioner Jose-Angel Carachuri-Rosendo (“Carachuri-Rosendo”) argues that an alien should only lose this right if the second state law conviction was actually prosecuted as recidivist possession. Respondent Attorney General Eric Holder (“Holder”) argues that federal, not state, law is determinative and that the second conviction should be deemed a felony if it could have been prosecuted as such under federal law.
The need to strike a proper balance between giving deference and independence to state criminal justice systems and ensuring the uniform and fair application of federal immigration law is the crux of this case.
State and Federal Legal Systems
Should the Supreme Court rule in favor of Holder, the National Association of Criminal Defense Lawyers (“NACDL”) warns of a negative impact on the ability of the states to maintain the proper functioning of state justice systems. The NACDL argues that the availability of plea bargains greatly increases the efficiency of state criminal justice systems, by reducing the number of trials and reducing the length of sentences. Under Holder’s theory, NACDL argues, the distinction between simple possession and recidivist possession becomes meaningless for immigrants: federal immigration law would treat two possession convictions as an aggravated felony regardless of the actual convictions in state court. Therefore, NACDL concludes, notwithstanding advantageous plea bargains, immigrants would always take even the most routine drug charges to trial.
Carachuri-Rosendo adds that adopting Holder’s position would undermine the discretion that state prosecutors have to pursue recidivist enhancement. In line with this view, the Center for the Administration of Criminal Law states that prosecutorial discretion allows for calibration of punishment to fit "the characteristics of the specific offense and offender." It specifies that prosecutorial discretion is especially important in recidivism cases, which tend to have "grave sentencing implications" if applied indiscriminately, citing California's recidivist sentencing scheme as an example. Advocating that the Court rule in favor of Carachuri-Rosendo, it states that an immigration court should respect a prosecutor's decision not to pursue recidivist prosecution just as it would any other charging decision a prosecutor makes.
For Attorney General Eric Holder, however, Congress's decision to allow prosecutorial discretion on criminal cases does nothing to lessen its determination that recidivist aliens should not be allowed to remain in the United States. He emphasizes that Congress made an explicit judgment that aliens guilty of violating federal drug laws more than once cannot claim the benefits of the immigration laws. From his perspective, this judgment is "separate and apart from any individual prosecutorial decision." He maintains that the Court should not ignore Congress' concern that criminal aliens, particularly those that are recidivists, pose a threat to society and impose substantial burdens on the legal and penal systems in the United States.
Holder adds that adopting Carachuri-Rosendo’s position would lead to the inconsistent application of federal immigration law. He argues that the decisions of state prosecutors of whether to pursue recidivist convictions for possession charges should not determine the definition of “aggravated felony” for the purposes of federal immigration law. He further states that the status of “aggravated felony” should not be whether or not state law authorizes enhanced recidivist charges for particular offenses. Rather, Holder contends, the definition of “aggravated felony” for the purposes of applying federal immigration law should depend on how federal, not state law defines that term. Otherwise, Holder argues, an alien in a state with no recidivist enhancement for certain possession offenses could be convicted multiple times and remain eligible to petition for cancellation of removal proceedings, while a different alien in a state with recidivist enhancement would become ineligible to petition for cancellation after a second conviction. Furthermore, Holder argues, it would unnecessarily burden immigration judges to delve into the particularities of state drug laws when hearing relatively straightforward removal cases.
The Supreme Court’s ruling in this case will reconcile the split between the circuit court concerning the treatment of drug convictions under state law for the purpose of determining eligibility for discretionary cancellation under the INA. If the Court adopts Carachuri-Rosendo’s position, a state would have to make a finding that the alien offender had a prior conviction for simple possession before he becomes categorically ineligible to seek discretionary cancellation. However, if the Court sides with the Attorney General, an immigration judge will simply have to consider whether the alien offender could have been prosecuted for an offense that would render him ineligible to seek discretionary cancellation of his removal from the United States.
- Wex: Overview on Immigration Law
- Lauren P. Gearty, Immigration Law-Second Drug Offense Not Aggravated Felony Merely Because of Possible Felony Recidivist Prosecution, 43 Suff. L. Rev. 277, 280-81 (2010).