The Board of Immigration Appeals continued its efforts to resist the principal means of analyzing statutes that the Supreme Court requires in a case involving a drug conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014). Board Member Pauley wrote the panel’s decision. This case involved an LPR convicted via guilty plea of “sale of illegal drugs” in Connecticut. The immigration judge found that this conviction constituted illicit trafficking, a variety of aggravated felony, INA § 101(a)(43)(B), and a controlled substance offense, INA § 237(a)(2)(B)(i). On appeal, the migrant argued [...]
BIA deviates from categorical approach; expands use of “circumstance-specific” analysis
Bucking the Supreme Court’s persistent emphasis on the categorical approach, the Board of Immigration Appeals rejected that analytical method for the controlled substance offense’s personal use exception. Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014). Board Member Pauley wrote the panel’s decision. This case involved an LPR convicted under Nevada law of possessing more than one ounce of marijuana. DHS claimed that this constitutes a controlled substance offense under INA § 237(a)(2)(B)(i). The immigration judge disagreed. Instead of engaging in a “circumstance-specific” [...]
5 Cir: Drug trafficking aggravated felony requires knowing substance was illicit
The U.S. Court of Appeals for the Fifth Circuit held that Florida’s cocaine delivery offense is not a drug trafficking type of aggravated felony because, unlike federal law, it does not require, as an element of the crime, showing that the defendant knew that the substance was a controlled substance. Paez Sarmientos v. Holder, No. 13-60086, slip op. (5th Cir. Feb. 12, 2014) (Reavley, Prado, and Owen, JJ.). Judge Owen wrote the panel’s opinion. This case involved an LPR who pleaded guilty to delivering cocaine in violation of Florida Statute § 893.13(1)(a)(1). After finding that Paez [...]
Immigration law in the age of marijuana decriminalization
By Jordan Cunnings In a recent New Yorker interview, President Obama described marijuana use as a “bad habit and a vice, not very different from. . . cigarettes,” and not more dangerous than drinking. The President expressed concern with the disproportionate rates of criminal punishment for marijuana use in poor and minority communities, and spoke favorably of recent efforts to legalize small amounts of the drug in the states of Colorado and Washington. While Obama’s comments may be a good sign for marijuana legalization advocates, his personal viewpoint is glaringly inconsistent with his [...]
Commutations unlikely to help immigrants
Last week, Deputy Attorney General James Cole announced that President Obama is likely to ramp up the number of commutations he issues for drug offenses. While commendable, presidential commutations are unlikely to help immigrants avoid removal. In a speech to the New York State Bar Association, Deputy AG Cole noted the futility of relying on incarceration to punish low-level drug offenders. “Over half of the federal prison population is there for drug offenses,” he said. “Some are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a [...]
IJ: Not all drug convictions are controlled substance offenses
An immigration judge in New York recently concluded that a state conviction from possession of a controlled substance isn’t a controlled substance offense for immigration law purposes. Matter of Nunez, slip op. (NY Imm. Court September 20, 2013) (Segal, IJ). The IJ therefore dismissed the removal proceedings. This case involved an LPR convicted of criminal possession of a controlled substance in the seventh degree, N.Y. Penal Code § 220.03. DHS claimed that this conviction rendered him removable for having been convicted of a controlled substance offense (CSO) under INA § 237(a)(2)(B)(i). The [...]
9 Cir: Cal. marijuana possession is categorically controlled substances offense
The U.S. Court of Appeals for the Ninth Circuit held that a conviction for possessing marijuana under California law is categorically a controlled substances offense (CSO) for immigration law purposes. Macias-Carreon v. Holder, No. 10-70380, slip op. (9th Cir. May 30, 2013) (Noonan, Wardlaw, and Murguía, J.). Judge Murguía wrote the panel’s decision. This case involved an individual who entered without inspection and was later convicted of violating California Health and Safety Code § 11359, which prohibits “possess[ing] for sale any marijuana.” DHS charged Macias-Carreon as removable for [...]
9 Cir: Judgment abstract can identify drug that defendant possessed
The U.S. Court of Appeals for the Ninth Circuit held that an abstract of judgment can serve as the basis for determining whether an individual was convicted of a controlled substances offense. Cabantac v. Holder, Nos. 09-71336 & 12-71459, slip op. (9th Cir. Aug. 23, 2012) (Kozinski, O'Scannlain, and Bea, JJ.). This is a per curiam opinion. This case involves an individual who was convicted of possession of a controlled substance, methamphetamine, in California. Cal. Health & Safety Code § 11377(a). Cabantac argued that he was not convicted of possessing methamphetamine or any other [...]