This week’s nomination of Judge Sonia Sotomayor to replace Justice Souter on the Supreme Court got me interested in looking at some of her immigration-related decisions.
In an unpublished decision in February 2009, Judge Sotomayor and two other members of the 2nd Circuit held that two convictions for New York Penal § 221.40, criminal sale of marijuana in the fourth degree, do not constitute an aggravated felony. See Beckford v. Filip, No. 08-0693-ag, slip op. at 2 (2nd Cir. Feb. 2, 2009). According to the Court,
“Beckford’s convictions, by plea of guilty, for criminal sale of marijuana in the fourth degree in violation of New York State Penal Law section 221.40 do not constitute aggravated felonies because the CSA contains a ‘mitigating exception’ that ‘punishes distribution of a small amount of marihuana for no remuneration as a misdemeanor, see 38 21 U.S.C. § 841(b)(4).’” Beckford, slip op. at 2 (quoting Martinez v. Mukasey, — F.3d –, No. 07-3031-ag, 2008 WL 39 5248177, at *1 (2d Cir. Dec. 18, 2008)).
The Court then turned to the utility of an affidavit written by a police officer upon which the government relied to prove that the non-citizen had actually sold drugs. The affidavit stated “that an undercover officer 5 purchased marijuana from Beckford in exchange for U.S. currency.” See Beckford, slip op. at 3. The Court first noted that the IJ had not admitted the affidavit into the record because DHS submitted it after it had already rested on its evidence of removability. See Beckford, slip op. at 3.
The Court then added a short discussion that could help immigration attorneys. The Court suggested that for it to consider such a document the government would have to prove that it was indeed the charging document and that the defendant pled to that document: “Even if we could consider the document, we would reject it as inconclusive because it is not clear whether the document is the instrument by which Beckford was charged and to which he pled guilty, or if it is merely an affidavit offered to the state court in support of charges against Beckford.” Beckford, slip op. at 3.
DHS attorneys frequently submit every court and police record that they can get their hands on—including documents that, at best, have an unclear relationship to the conviction or documents that served as the basis for charges for which the non-citizen was clearly not convicted. This language could come in handy for attorneys trying to argue that those types of documents should not be considered for determining removability