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Clarifying the definition of an “aggravated felony” for immigration purposes

On Monday, the Court clarified a key point of immigration law, holding in Carachuri-Rosendo v. Holder (No. 09-60), that a second or subsequent conviction on a simple drug possession charge is not an “aggravated felony” for purposes of the Immigration and Nationality Act (INA) when the state conviction is not based on the fact of a prior conviction. [You can read my preview and recap of oral arguments in the case here and here.]

Petitioner Jose Angel Carachuri-Rosendo, a legal permanent resident of the United States, was convicted of two misdemeanor drug offenses in Texas:  possession of a small amount of marijuana, followed by possession without a prescription of one anti-anxiety pill.  For those crimes, he was sentenced to twenty and ten days in prison, respectively.  The U.S. government then initiated removal proceedings against him.  Carachuri-Rosendo agreed that he was removable by virtue of his crimes, but he sought relief from removal under 8 U.S.C. § 1229b(a), which allows the Attorney General to cancel an order of removal as long as the non-citizen has not been convicted of an aggravated felony.  However, the Immigration Judge and the Board of Immigration Appeals concluded that Carachuri-Rosendo was ineligible for cancellation of removal because his second conviction was an aggravated felony, and the Fifth Circuit affirmed.

The Court reversed.  In an opinion by Justice Stevens, the Court held that although. Carachuri-Rosendo’s second conviction could have been charged as a felony because of his first conviction, that mere possibility does not mean that Carachuri-Rosendo was in fact “convicted” of an “aggravated felony” for purposes of the INA.

The Court began with the text of the statute itself, which makes clear that an “aggravated felony” is a conviction for “illicit trafficking in a controlled substance.”  In the Court’s view, neither Carachuri-Rosendo’s second simple possession offense nor the sentence that it carried “fit easily into the ‘everyday understanding’ of those terms.”   Moreover, the Court noted, the government’s construction of the INA cannot be reconciled with the text of the statute, which renders a non-citizen ineligible for cancellation of removal only when she “has . . . been convicted of a[n] aggravated felony”; “[t]he text,” the Court reasoned, “thus indicates that we are to look to the conviction itself as our starting point, not to what might have or could have been charged.”

The Court also emphasized the procedural requirements imposed by federal law, which prohibits prosecutors from seeking a recidivist enhancement unless they so charge the defendant in the criminal information and the defendant has an opportunity to challenge the fact of the prior conviction itself.  Such procedures, the Court emphasized, “have great practical significance with respect to the conviction itself and are integral to the structure and design of federal drug laws.”

The Court rejected the Fifth Circuit’s reliance on its decision in Lopez v. Gonzales (2006), explaining that “the ‘hypothetical approach’ employed by the Court of Appeals introduces a level of conjecture at the outset of this inquiry that has no basis in Lopez.”  And, finally, the Court emphasized, “it seems clear that the Government’s argument is inconsistent with common practice in the federal courts” insofar as it “is quite unlikely that the ‘conduct’ that gave rise to Carachuri-Rosendo’s conviction would have been punished as a felony in federal court.”

Justice Scalia concurred in the judgment, offering a rationale which he characterized as “more straightforward than the Court’s.” He explained that although, pursuant to the Court’s decision in Almendarez-Torres v. United States, recidivism can serve as a sentencing factor rather than an element of the offense, it did not follow that “an alien has been ‘convicted of’ an aggravated felony . . . when he has been convicted of nothing more than a second state misdemeanor violation, the punishment for which could, because of recidivism, be extended beyond one year.”

Justice Thomas separately concurred in the judgment, offering a third rationale for the Court’s judgment.  In his view, two requirements must be satisfied for a state conviction to qualify as a drug trafficking crime capable of rendering an alien ineligible for cancellation of removal: first, the offense “must be a felony”; and, second, the offense “must be capable of punishment under the Controlled Substances Act.”  In Carachuri-Rosendo’s case, Justice Thomas concluded, the second requirement was satisfied, but not the first.