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Supreme Court to decide if multiple drug possession convictions are aggravated felony

On Friday, the Supreme Court announced that it has granted certiorari in two cases addressing whether multiple state drug possession convictions constitute an aggravated felony. Carachuri-Rosendo v. Holder, No. 09-60; Escobar v. Holder, No. 09-203. The Court’s decision in these cases is likely to have significant impact on crImmigration because of the high number of people who are convicted of simple drug possession. In addition, given that an aggravated felony renders a non-citizen ineligible for Cancellation of Removal, this issue of immense importance to many non-citizens in removal proceedings.

Both cases present the court with this issue:

Whether a person convicted under state law for simple drug possession (a federal law misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal law felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.

There is currently a circuit split on this issue. Four circuits—the First, Second, Third, and Sixth—and the Board of Immigration Appeals have held that a person convicted of a second simple possession offense cannot be considered convicted of an aggravated felony unless the criminal proceeding was conducted in accordance with recidivist procedures. In contrast, two courts of appeal—the Fifth and Seventh—hold that a second state possession conviction constitutes an aggravated felony regardless of any recidivism finding during the criminal proceeding. Carachuri-Rosendo comes out of the Fifth Circuit and Escobar from the Seventh. The BIA’s precedential decision—in Matter of Carachuri-Rosendo, 24 I & N Dec. 382 (BIA 2007)—siding with the majority of the circuits that have addressed the issue governs in circuits that have not directly decided it.

The petitioners, Carachuri-Rosendo and Escobar, are represented by Sri Srinivassan of O’Melveny & Myers and Geoffrey A. Hoffman of the University of Houston Law Center. The National Association of Criminal Defense Lawyers and the Center on the Administration of Criminal Law submitted separate amicus briefs in support of Carachuri-Rosend and Escobar.

Several key documents for Carachuri-Rosendo are available here:

–Fifth Circuit decision
–Petition for certiorari
–Brief in opposition
–Amicus brief of the National Association of Criminal Defense Lawyers

–Amicus brief of the Center on the Administration of Criminal Law

Key documents for Escobar are available here:

–Petition for certiorari
–Brief in opposition

The Court has not announced the exact date for oral argument but cases granted now are being scheduled for late March or early April. The Court posts its most updated arguments calendar online.

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