Carachuri-Rosendo v. Holder (U.S. Sup. Ct. 2010)

In this case, the Supreme Court held that for purposes of cancellation of removal, an applicant must actually be convicted of an aggravated felony to be disqualified from seeking such relief.  The case arose because the respondent, a lawful permanent resident, had been convicted in Texas of possessing without prescription of one tablet of Xanax, a common anti-anxiety drug.  He served 10 days jail time for this conviction.  Previously, he had been convicted of possession of less than three ounces of marijuana, for which he served 20 days in jail.  Both convictions are classified as misdemeanors under both Texas and federal law drug laws.  Following his second conviction, the government placed him in removal proceedings.  He sought relief against removal pursuant to cancellation of removal.  The government argued successfully before the immigration judge that the second drug conviction rendered the respondent ineligible for cancellation of removal because he may now be considered an aggravated felon on account of being convicted of two drug possession charges.

While it is generally accepted that simple drug possession charges are rarely, if ever, considered aggravated felonies, the convoluted government’s argument can be attributed to the byzantine nature of the immigration statutes relating to what should be considered an “aggravated felony.”  There is no simple definition, even in the statutory provision, 8 U.S.C. § 1229(a)(3), which authorizes cancellation of removal.  Instead, 8 U.S.C. § 1229(a)(3) references 18 U.S.C. § 924(c), which in turns references 21 U.S.C. § 801.  Thus, the immigration laws cross references federal drug laws, which authorize that a conviction after a prior conviction may be punishable as a felony, so long as certain procedural requirements are met.  That is, a prosecutor may seek punishment enhancement if the prosecutor charged the defendant as a repeat offender, and the defendant is afforded the opportunity to defend against such charges.  Under federal law, as well as most state laws, a defendant is not automatically considered a repeat offender unless the prosecutor takes specific action to charge the defendant as such, even if in fact the defendant has been convicted of the same offense more than once.  In simple terms, one is not a repeat offender per se (or recidivist) by merely being convicted of the same crime more than once.  Rather, one has to be charged and specifically found to be a recidivist.  That is the only way in which a defendant with a drug possession charge may be considered an “aggravated felon” for purposes of federal law.

That is, however, not what happened in the Respondent’s case.  When he was convicted of the second drug possession charge, the prosecutor did not seek repeat offender enhancements against him.  For that reason, the Supreme Court found on appeal that the respondent was not an “aggravated felon” for purposes of federal criminal law, and therefore, he was not disqualified from cancellation of removal.  The government argued that because he could have been charged as a recidivist, he should be considered an aggravated felon.  Not so, said the high court.  Hypothetical convictions do not count.  Would have and could have does not carry the day.  In order for a person to be considered an aggravated felon, he must have been properly charged and convicted of such.  For due process purposes, he must be given the opportunity to fight such a charge.  It would be improper for a later tribunal to find him to be a repeat offender after the fact when he was never charged as such in the first place.  The immigration judge engaged in improper hypothesizing.  The fact that the respondent had been convicted of two separate drug possession charges does not make him a de facto aggravated felon and ineligible for cancellation of removal, even if he could have been charged as one.

In this decision, the Supreme Court seems to be attempting to restore a bit of common sense into the use of the term “aggravated felony,” which has become promiscuous in the last few years with the government’s classification of every possible crime as an aggravated felony, regardless of how remotely tethered such classification is to traditional legal conceptions.  The Court was wary of the government’s argument that the second conviction was an aggravated felony because one does not usually think of a 10-day sentence for unauthorized possession of one prescription pill as an aggravated felony.  An aggravated felony is a serious offense which involved aggravating circumstances, not a petty pill possession conviction. In other words, the government’s argument was “unorthodox,” counterintuitive, and nonsensical.  The Court observed that the government’s interpretation would lead to unjust and unreasonable results.  It would be akin to permitting an immigration judge to apply his own recidivist enhancement to a defendant after the fact, which would denigrate state prosecutors’ ability and judgment to execute the criminal laws as they see fit.  It would also be unlikely that the respondent in this case would have been charged and convicted as a recidivist in federal court. In this regard, the government’s argument was not realistic, and grounded in baseless conjecture. Finally, the Court reminded the government that ambiguities in criminal statutes referenced in immigration laws should be construed in the respondent’s favor.  For all the above reasons, the Court found that the respondent remained eligible to apply for relief under cancellation of removal.