In an important 2006 case, Lopez v. Gonzales, the U.S. Supreme Court held that state convictions for drug-related offenses may constitute an aggravated felony only under one of two scenarios: if the state offense prohibits conduct punishable under the federal Controlled Substances Act (CSA) or if the state offense fell within the “everyday understanding” of illicit trafficking. 127 S.Ct. 625 (2006). One year after the Supreme Court issued its decision in Lopez, the Board of Immigration Appeals (BIA) applied the Lopez reasoning to removal proceedings based on an individual’s multiple convictions for state drug possession offenses. Matter of Carachuri-Rosendo, 24 I & N Dec. 382 (BIA 2007). The BIA held that “a State conviction cannot proscribe conduct punishable as recidivist possession unless the State successfully sought to impose punishment for a recidivist drug conviction.”
Unfortunately, the BIA’s holding in Carachuri was proscribed by contrary precedent in the 2nd, 5th, and 7th Circuits. In a decision released in November 2008, the 2nd Circuit clarified that it does not disagree with Carachuri. See Alsol v. Mukasey, 548 F.3d 207 (2nd Cir. 2008). The 5th Circuit, however, continues to treat multiple drug possession convictions as an aggravated felony even without proof that the individual was prosecuted as a recidivist offender. See United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005).
As a result, DHS attorneys regularly attempt to stretch the limits of the multiple drug possession analysis. On multiple occasions, we have seen DHS argue that a drug paraphernalia conviction is equivalent to a drug possession conviction under Sanchez-Villalobos in that the paraphernalia conviction, when combined with a possession conviction, makes an aggravated felony.
We are now having some luck arguing that possession of drug paraphernalia–a crime in many states–does not fit into the Sanchez-Villalobos paradigm by arguing that possession of drug paraphernalia is not a crime under the federal CSA. Indeed, the one reference to drug paraphernalia is an explicit prohibition of the “sell or offer for sale [of] drug paraphernalia,” the “use [of] the mails or any other facility of interestate commerce to transport drug paraphernalia,” and the “import[ing] or export[ing of] drug paraphernalia.” 21 U.S.C. § 863(a). Mere possession of paraphernalia is not a federal crime. As a result, we have successfully argued that possession of drug paraphernalia fails the first of Lopez v. Gonzales’s two definitions of a drug-related aggravated felony–that is, that it’s prohibited by the federal CSA.
Under the second of the two definitions of aggravated felony announced in Lopez v. Gonzales, a state offense may be considered an aggravated felony under the INA if the state offense falls within the “everyday understanding” of illicit trafficking. Instructively, the Lopez Court held that state court convictions for drug possession offenses do not correspond to trafficking convictions under the CSA and therefore cannot be aggravated felonies under the INA. In Lopez, the Supreme Court considered South Dakota’s possession statute which criminalized “possess[ion of] a controlled drug or substance” and held that “[m]ere possession is not, however, a felony under the federal CSA” because “ordinarily ‘trafficking’ means some sort of commercial dealing” and “[c]ommerce . . . is no element of simple possession.” The Lopez Court’s focus on “possession” means that this analysis is applicable to possession of any drug-related item–a specific controlled substance or even paraphernalia. Consequently, we argued, possession of drug paraphernalia isn’t a drug-related aggravated felony under the second of Lopez’s two definitions either.
So far this argument has met with some success. It’s worth trying.