Only in Immigration Law and in Alice in Wonderland: Aggravated Misdemeanors?

April 7, 2010
Guest Post

By Kevin R. Johnson, Dean of the UC Davis School of Law and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, and co-editor of the ImmigrationProf blog & Raha Jorjani, Supervising Attorney and Lecturer in the UC Davis Immigration Law Clinic

Under the Immigration & Nationality Act (INA), conviction of an "aggravated felony" makes long-term permanent resident aliens ineligible for a form of discretionary relief from removal known as "cancellation of removal." Over the last two decades, Congress has slowly but surely expanded the definition of "aggravated felony" to punish immigrants convicted of crimes, revealing the deep unpopularity of "criminal aliens" among the public and policymakers. As a result, since 1996, the nation has deported hundreds of thousands of immigrants each year.

In 2006, the Court in Lopez v. Gonzales, 549 U.S. 47 (2006) held that a state felony drug possession conviction that would not have been a felony under federal law was not an "aggravated felony": Since "Congress generally treats possession alone as a misdemeanor whatever the amount," a possession conviction does not ordinarily constitute an "aggravated felony." Last Term, the Supreme Court decided three of four immigration cases in favor of the immigrant. The single victory for the government came in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), in which the Court ruled that the immigration court correctly inquired into the underlying facts of a state fraud conviction in concluding that the monetary loss to the victims exceeded $10,000, which was necessary to make the crime an "aggravated felony" under the INA.

In Carachuri-Rosendo v. Holder, the Court must address the complex question whether a state misdemeanor conviction for drug possession amounts to an aggravated felony. A lawful permanent resident with four U.S. citizen children, Jose Angel Carachuri-Rosendo entered the United States from Mexico in 1993. He was convicted in the Texas courts for (1) misdemeanor possession of marijuana, for which he was sentenced to 20 days in jail; and (2) misdemeanor possession of one tablet of Xanax, for which he was sentenced to ten days in jail.

Under federal law, when a person is convicted of possessing a controlled substance after a previous drug conviction, the prosecutor may seek a recidivist enhancement, which, if established, converts what ordinarily would be a misdemeanor into a felony. For such an enhancement, federal law requires adherence to rigorous procedural safeguards, including a formal charge of a recidivist enhancement and an opportunity for the defendant to challenge the prior conviction. In this instance, the prosecutor in the second drug possession prosecution did not pursue any recidivist enhancements.

Because Carachuri-Rosendo could have been prosecuted for a felony on the second drug charge in federal court, the immigration court found that Carachuri-Rosendo was an aggravated felon and ineligible for cancellation. Although uneasy with the result, the Board of Immigration Appeals found that Fifth Circuit precedent required a finding that he was an aggravated felon. In an opinion by Judge Edith Jones, the U.S. Court of Appeals for the Fifth Circuit denied Carachuri-Rosendo's petition for review. The Supreme Court granted certiorari to resolve a conflict among the circuits.

In the Supreme Court, Carachuri-Rosendo argues that, because the state court did not make a determination of recidivism and failed to adhere to the procedural protections under federal law, his second misdemeanor possession conviction is not an "aggravated felony." The fact that he could have been convicted of recidivist possession was not sufficient for concluding that he had been convicted of an aggravated felony. Carachuri-Rosendo further argues that the "rule of lenity" requires that any statutory ambiguity be interpreted in his favor.

The U.S. government takes the position that Carachuri-Rosendo's second misdemeanor conviction for possession is in fact an "aggravated felony" because the offense could have been punishable as a felony under federal law. According to the United States, Congress's judgment controls; as stated at oral argument, "Congress has taken a hard line over the past 20 years on criminal aliens, particularly recidivist criminal aliens ...."

The U.S. government's position, if accepted by the Court, would have an incredible result. It would mean that a noncitizen with a federal misdemeanor possession conviction -- if, for example, the U.S. Attorney decided not to pursue recidivist enhancement charges -- could nevertheless have been characterized as guilty of an aggravated felony under the immigration laws because such charges could have been brought if the case had been prosecuted in federal court. Such a result would contradict Lopez v. Gonzales, which held that a crime must be a felony under federal law to constitute an aggravated felony.

On March 31, Sri Srinivasan, a partner with O'Melveny & Myers LLP, argued Carachuri-Rosendo's case before the Supreme Court for Carachuri-Rosendo. Nicole Saharsky, Assistant to the Solicitor General, argued for the United States. The Justices aggressively questioned both sides. In particular, Justice Breyer, the author of the majority opinion in Nijhawan v. Holder, peppered counsel with questions about the complex matrix of state and federal statutes at issue in the case and the applicability of the Court's past decisions. To make clear the harsh treatment of criminals under the U.S. immigration laws, Justice Breyer offered a hypothetical of how the conviction of the harmless "pussycat burglar" stealing an innocuous "pop gun" would be classified as an aggravated felon.

It is difficult to predict how the Supreme Court will decide Carachuri-Rosendo v. Holder. However, although "criminal aliens" are unpopular with the public and Congress, the Roberts Court -- conservative as it is -- has been willing to rule in favor of immigrants when the government has gone too far. Indeed, immigrants have prevailed in two cases decided by the Court this Term. In Kucana v. Holder, 130 S. Ct. 827 (2010), the Court unanimously held that congressional court-stripping provisions did not bar judicial review of the Attorney General's discretionary decision to reopen a removal proceeding. In Padilla v. Kentucky, 2010 U.S. LEXIS 2928 (Mar. 31, 2010), the Court, in a landmark decision, ruled that a noncitizen could base an ineffective assistance of counsel claim on the failure to advise him of the immigration consequences of a guilty plea in a drug case.

In Carachuri-Rosendo v. Holder, the U.S. government's claim that a state misdemeanor drug possession conviction somehow amounts to an "aggravated felony" drug trafficking offense under the U.S. immigration laws goes too far. At oral argument, Justice Ginsburg correctly observed the government's interpretation would have an "absurd result," deporting a long term resident for two misdemeanor drug possession convictions. The U.S. government's tortured interpretation would have a devastating impact on immigrant communities, especially long-time residents with deep family and community ties to the United States. Indeed, Carachuri-Rosendo faces banishment from America - and four U.S. citizen children -- for a crime deemed so minor by the court that it sentenced him to a measly ten days in jail. For a minor, non-violent misdemeanor to result in, as the Supreme Court has put it, "the loss of all that makes life worth living," violates the principles of proportionality and justice embraced by democratic societies.

[Image via M J M.]