Friday, April 07, 2006

Cert Granted On Simple Drug Possession As Aggravated Felony

The Supreme Court has finally agreed to resolve the conflicting cases -- both among the Circuits and within the Ninth Circuit -- regarding the frequently arising question whether simple drug possession is a "drug trafficking crime" and therefore an "aggravated felony" under the immigration statutes. Under U.S.S.G. § 2L1.2 of the sentencing guidelines, aliens receive an enhancement to offense level 16 for having a conviction that is an "aggravated felony" under the Immigration and Nationality Act’s definitional section, 8 U.S.C. § 1101(a)(43). In civil immigration proceedings, the same "aggravated felony" designation is the kiss of death for any immigration benefits, regardless of equities and hardship to families: mandatory custody and deportation virtually always follow.

For immigration purposes, several circuits reasonably construe section 1101(a)(43)(B) to require an element of trafficking before a drug conviction constitutes an "aggravated felony." But in the sentencing context, almost every Circuit treats mere possession of the tiniest amount of drugs as a "drug trafficking crime" that requires enhancement as an "aggravated felony."

Then came Leocal, in which the Supreme Court held that drunk driving resulting in injury did not constitute an aggravated felony. In footnote 8, the Court noted that the statute could not have different meanings in the criminal and noncriminal contexts. This was especially important in the Ninth Circuit because, for administrative purposes, simple drug possession is not an "aggravated felony" under Cazarez-Gutierrez, and, in the sentencing context, the identical offense is an "aggravated felony" under the split decision in Ybarra-Galindo and its progeny. As blogged here, Federal Defenders pushed for resolution of this split in favor of the ordinary meaning of drug trafficking – something more than mere possession.

Notwithstanding Leocal, the Ninth Circuit refused to consider the issue en banc. But the Sixth Circuit broke ranks on the sentencing side and agreed with the defense position in Palacios-Suarez (as blogged here). The civil and criminal immigration bar cooperated on this and other "aggravated felony" issues where the government pushed the concept far beyond what fairness and plain meaning should permit (as blogged here).

Then on Monday the Supreme Court granted writs of certiorari in Lopez v. Gonzales (Docket No. 05-547) and Toledo-Flores v. United States (Docket No. 05-7664) to decide whether a state felony offense of simple possession of a controlled substance is a drug trafficking aggravated felony. AFPD Tim Crooks, a stellar appellate attorney from the Houston office, is representing Mr. Toledo-Flores; Mr. Lopez is represented by private counsel Robert A. Long.

The government has long been aggressively seeking expansion of the types of drug offenses that may be deemed a "drug trafficking" aggravated felony. This grant of certiorari presents an opportunity to scale back the government’s aggressive expansion of the types of offenses that constitute "aggravated felonies" in both the immigration and sentencing contexts. Unless the Supreme Court applies the Presumption Against Rational Analysis to Not Overturn for Illegal Aliens, this grant of certiorari should be a good thing for our clients.

Manny Vargas, from the Immigrant Defense Project of the New York State Defenders Association, provides the following background and suggestions:

Background on Mr. Lopez

The petitioner in this case, Mr. Lopez, is a long-time lawful permanent resident who has been living in the United States for more than 20 years. He has one conviction for "aiding and abetting" the possession of a controlled substance, a felony under the laws of South Dakota, which penalizes as a felony almost every simple possession offense. This makes Mr. Lopez deportable under the general controlled substance deportation ground. The government argued, and the Eighth Circuit Court of Appeals agreed, however, that this offense also constitutes a "drug trafficking" aggravated felony under immigration law – even though it is a "simple possession" offense and federal law would have punished it only as a misdemeanor. The aggravated felony designation made Mr. Lopez ineligible for cancellation of removal, in effect making deportation a virtual requirement.

Background on Mr. Toledo-Flores

Mr. Toledo-Flores was convicted for unlawful re-entry and subjected to a stiff federal criminal sentence enhancement based on a finding that his prior simple possession drug conviction was a "drug trafficking" aggravated felony. As in Lopez, the government argued, and the Fifth Circuit Court of Appeals has agreed, that this offense also constitutes a "drug trafficking" aggravated felony – even though it also is a "simple possession" offense and federal law would have punished it only as a misdemeanor.

What You Can Do

1. NYSDA Immigrant Defense Project, in collaboration with the National Immigration Project, has been meeting and consulting with a number of organizations and experts to develop a coordinated amicus strategy for this and any other cases that raise this issue. We welcome further input into this process. Please contact Benita Jain at (718) 858-9658 ext. 231, Manny Vargas at (718) 858-9658 ext. 208, or Dan Kesselbrenner at (617) 227-9727.

2. If you or someone you know (clients, members, families) is or was facing deportation, denial of asylum or withholding of removal, or denial of naturalization because of a government claim that a simple possession drug offense is an aggravated felony, please contact us! We may be able to provide information about legal challenges or how to get involved. Examples of such situations may also help with litigation and other advocacy.

3. Quick Practice Tip: If you are litigating the issue of whether a state simple possession felony drug offense is a drug trafficking aggravated felony in a Circuit that has clearly decided that state classification controls or where the court is poised to make such a ruling, consider asking the court to hold the case in abeyance until the Supreme Court decides this case. This may slow the litigation and keep a person in the United States (for an immigration case) in the event that a favorable Supreme Court decision holds that such an offense is not an aggravated felony.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


Blogger 209 said...

More important is the current issue of Lopez v. Gonzalez, in which the governemnt is interpreting the term "aggravated felony" to include state or federal crimes that are listed as felonies. This violates the Naturalization Clause by allowing states to set and implement immigration policy by their varying classification of felonies. In South Dakata an immigrant may be deported for possession of more than an ounce of marijuana, while another identitical immigrant in California would merely be given a misdeamnor. This has grave implications for legal immigrants, such as Lopez, that is a taxpayer, community contributor,buisness-owner, a husband, and a father to his children. The crime he committed is merely a federal misdeamnor, however, under South Dakota's stringent laws, he was given a felony which equated mandatory deportation, lifetime banishment from the United States (and his family), and denial of discretionary relief from a Federal Judge. The government's definition of an aggravated felony, under the federal statue of the Controlled Substance Act, gives states the power to control immigration. This will ultimately led to diverse laws and treatment of immigrants depending on the state they reside in. Immigration law needs to be uniform, Alexander Hamilton wrote in the Fed. 32, that Naturalization must be uniform in this country, or there will be too many conflicting attitudes and unfair treatment between the states about immigrants. The governments definition of an aggravated felony allows states to adapt conflicting attitudes and this will cause unfair treatment of immigrants nationwide and allow states to control and set the requirements for immigrants staying in this country. However, this is most likely a problem for Congress to fix and not the courts. The 9th Circuit took the most detailed and in my opinion, correct approach in Cazarez-Gutierrez v. Ashcroft, however, I feel the Court will delegate this problem to Congress. I am sure Congress doesn't want to get their hands dirty would not want to touch such a touchy issues, especially Congressmen in the midwest.

Sunday, November 05, 2006 4:53:00 PM  
Anonymous Anonymous said...

on 11/9/06 my husband went to renew his green card. He had a scheduled biometrics appointment. We figured he was just going to get his fingerprints taken and he would be all set with his legal resident status until he could apply for citizenship. He had not applied thus far because in 10/1996 he pled nolo to a charge of manufacturing/delivery/possession schedule 1/11 -dependency. The story was that he sold a dime bag of marujuana to an undercover cop, basically to pay for his own stash of weed and that's where the dependency comes in.He received a three year suspended sentence with probation. In RI you cannot expunge a felony record until 10years after the probation/sentence is complete. That would not be until 2009. I met him in 1998 and we were married in 8/2005. Since his previous drug charge he has dedicated his life to becooming a productive meber of society. Although his criminal record made it difficult for him to get a job at first, through hard work and dedication he went from being a bus boy to an executive committe member of a marriott hotel in 8 years with out a college degree. The last thing we expected on 11/9/06 was that he be deported due to this old criminal record from 1996. Both of his parents are naturalized US citizens and so is his brother. I am a US citizen and I am currently 11 weeks pregnant. Is there any hope for keeping my husband from becomming deported?A lawyer stated that the old charge can be dismissed because they "probably" did not inform him of how his immigration status woud be affected at the time of his plea. He would then have to stand trial on the old charges in the hopes that it is lessened. Can anyone offer me any advice?

Sunday, November 12, 2006 6:34:00 PM  
Anonymous Anonymous said...

i have an aggravated feloly in CALIFORNIA . i had to wait 3 yaers in order to ajust my status because i had to do probation and expunge my case im married to us navy sailor and was trying to prepare my ajustment with extreme hardship 601 but that didint happen because my wife wanted separation because of my hopeless case to be deported still married to her.. but separated she revove the approve 2000 I 130 sept 2006 we have an 8 year ols daughter .what is my best way to stay in US .

Saturday, December 23, 2006 11:05:00 AM  
Anonymous Anonymous said...

USSG 2L1.2(b)(1)(A) increases BY 16 levels, not increase to a level 16, so doesn't agg fel = level 24?

Monday, June 16, 2008 11:22:00 AM  

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