The 5th Circuit Court of Appeals last week affirmed its prior holding that a second or subsequent conviction for possession of a controlled substance constitutes an aggravated felony. See United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005). See Alsol v. Mukasey, 548 F.3d 207 (2nd Cir. 2008). The 2nd Circuit’s decision in Alsol left only the 5th and 7th circuits as the jurisdictions where a second possession conviction constitutes an aggravated felony regardless of proof that the non-citizen was prosecuted under a state recidivist statute. (For more on the current circuit split, see Carachuri-Rosendo, No. 07-61006, slip op. at 7 n.5.)
In its decision released last week, the 5th Circuit first reviewed its holding in Sanchez-Villalobos and a later case, Lopez v. Gonzalez, 549 U.S. 47 (2006). The 5th Circuit concluded that “Lopez is ‘consistent with our earlier ‘hypothetical’ approach in Sanchez-Villalobos,’ and determined that a second state possession offense that could have been punished as a felony under federal law qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(b) [INA § 101(a)(43)(b)].” Carachuri-Rosendo, No. 07-61006, slip op. at 5 (quoting Cepeda-Rios, 550 F.3d at 335-45). As before, the 5th Circuit concluded that a second state possession conviction constitutes an aggravated felony if it could have been prosecuted as a felony recidivist offense even if it was not.
The 5th Circuit then rejected Carachuri-Rosendo’s argument that allowing the IJ to look at prior convictions violates the 5th Circuit’s emphasis on the categorical approach to statutory analysis. According to the 5th Circuit,
“We are not confined to the categorical approach in cases like Carachuri’s because the Supreme Court in Lopez goes beyond the categorical approach. Lopez did not hold that courts or immigration officials should look to the alien’s actual conduct as reflected in the record of conviction. But courts must look
beyond the text of the state statute violated—a departure from the categorical approach, which confines courts to that text.” Carachuri-Rosendo, No. 07-61006, slip op. at 6 (internal citations omitted).
This is unquestionably a bad case for non-citizens facing removal in the 5th Circuit. The only positive aspect is that it basically maintains the status quo. Immigration attorneys in the 5th Circuit have long had to contend with this interpretation of the recidivist offense aggravated felony.
Tip for practitioners: Given the drastic circuit split, though, the Supreme Court might have to become involved. As such, it’s a good idea to preserve this issue in the event that the Supreme Court in fact takes it up and maybe, just maybe, comes out on the side of non-citizens.