Today the Supreme Court will hear oral arguments in a much-anticipated crImmigration case: Carachuri-Rosendo v. Holder, No. 09-60. The question before the Court (the “question presented” in Supreme Court parlance) is this:
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.
The Fifth and Seventh Circuit Courts of Appeal hold that a person, including Carachuri-Rosendo, convicted under these circumstances has been convicted of an illicit trafficking type of aggravated felony. In contrast, four circuits—the First, Second, Third, and Sixth Circuits—and the BIA hold that this does not render a person an aggravated felon.
I have written about the impact of Carachuri-Rosendo many times—the Fifth Circuit’s insistence that this is the correct approach despite disapproval from the BIA and all but one other circuit that has decided the issue, legal approaches around the Fifth Circuit’s position, and the Supreme Court’s decision to review the Fifth Circuit’s position.
Given today’s oral arguments, the New York Times entered the discussion today. As is typical for her, Nina Bernstein brilliantly documents the impact of the Fifth Circuit’s interpretation on immigrants. Her article, How One Marijuana Cigarette May Lead to Deportation, is a must-read for grasping the inevitable result of the minority position that a second or subsequent drug possession conviction automatically renders a person an aggravated felon.
The New York Times editorial board urges SCOTUS to reject the Fifth Circuit’s reasoning in a separate editorial, Wishing Doesn’t Make It Law. Though I generally agree with the editorial board’s position, I take issue with the way it opens its discussion of aggravated felonies: “When noncitizens are convicted of aggravated felonies, federal law makes it relatively easy to remove them from the country — and it should.”
This statement presumes that an “aggravated felony” is a clear-cut determination limited to crimes that are both aggravated and felonious. The reality, though, is that an “aggravated felony” may not be either. To be classified as an “aggravated felony” for purposes of immigration law, an offense does not have to be a felony. And if it does not have to be a felony, it certainly does not have to be an “aggravated” form of a felony. Plenty of criminal offenses that are punished as misdemeanors are considered “aggravated felonies” under immigration law—including the drug possession offenses at issue in Carachuri-Rosendo.
When the “aggravated felony” concept was introduced to immigration law in the Anti-Drug Abuse Act of 1988 it was limited to three crimes—murder, drug trafficking, and illicit trafficking in firearms. Today, there are twenty-one categories of aggravated felonies and several of those categories include subsections.
Under today’s wide-reaching “aggravated felony” scheme, therefore, labeling someone an “aggravated felon” does not mean what the New York Times editorial board claims that it rightly does—that “aggravated felons” should be easily removed from the country presumably because they have committed serious criminal offenses. To take the Times’ position is to give credibility to the counterintuitive, though real and devastatingly meaningful, rhetorical frame that “aggravated felons” have all committed serious offenses. The truth is that the current definition of “aggravated felony” includes crimes that are neither aggravated nor felonious.
This is an important rhetorical disagreement. It is wrong to assume that the “aggravated felony” label is limited to those crimes that are so serious that a person who has committed one should unquestionably be deported. As the Times editorial correctly noted, once a person is deemed to have been convicted of an aggravated felony the Immigration Judge has no discretionary authority to allow the person to stay in the country. Since misdemeanors and crimes that are not “aggravated” in any ordinary sense of the word may be considered “aggravated felonies” (for example, Carachuri-Rosendo’s possession of a single tablet of the prescription medication Xanax) it is simply wrong to accept the proposition that “aggravated felons” all deserve to be removed.
The rhetoric of the right would like us to think so, but the reality is much different. Here’s hoping that the Supreme Court forces some sanity on the Fifth Circuit.