BIA continues eroding categorical approach

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 [...]

2 Cir: NY sale of controlled substance is aggravated felony

The U.S. Court of Appeals for the Second Circuit held that a conviction under New York law for sale of a controlled substance is categorically an illicit trafficking in a controlled substance type of aggravated felony even though the conviction merely involved an attempt to sell. Pascual v. Holder, No. 12-2798, slip op. (2nd Cir. July 9, 2013) (Jacobs, Kearse, and Carney, JJ.) (per curiam). This case involved an individual who was convicted of violating New York Penal Law § 220.39, sale of a controlled substance, and on that basis ordered removed by an IJ. The BIA affirmed. In an earlier [...]

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 [...]

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 [...]

11 Cir: FL possession of cannabis with intent to sell or deliver isn’t drug trafficking aggravated felony

The U.S. Court of Appeals for the Eleventh Circuit held that a Florida conviction for possession of cannabis with the intent to sell or deliver, Fla. Stat. § 893.13(1)(a)(2), is not a drug trafficking type of aggravated felony. Donawa v. U.S. Attorney General, No. 12-13526, slip op. (11th Cir. Nov. 7, 2013) (Martin, Jordan, and Suhrheinrich, JJ.). Judge Martin wrote the panel’s decision. Michael Vastine, a professor at St. Thomas University School of Law and past guest blogger on crImmigration.com, successfully argued on Mr. Donawa’s behalf. This case involved an LPR convicted of the [...]

Regulating Migrants in Franklin County, Ohio–Part 1

Lauren Hines The Secure Communities program permits federally-trained officers to scrutinize individuals booked into non-federal jails for their immigration status. The program uses shared biometric data from all enrolled Secure Communities jurisdictions as well as FBI and other federal databases to alert Immigration and Customs Enforcement (ICE) to removable migrants with criminal records. Secure Communities, however, is not the only program used for targeting migrants classified as criminal aliens for removal. Other federal-local memoranda of agreement (MOA) as well as non-federal practices [...]

Moncrieffe: Lessons in Crimmigration Law

By Maritza I. Reyes, Associate Professor of Law, Florida A&M University College of Law César did a great job of summarizing the U.S. Supreme Court opinion in Moncrieffe v. Holder, No. 11-702, slip. op. (U.S. April 23, 2013). I will not duplicate what has already been posted, but I will briefly examine some of the lessons in the opinion to elucidate the importance of crimmigration as a developing area of law. At the state level, Moncrieffe pleaded guilty to possession of marijuana with intent to distribute, a violation under Georgia law (Ga. Code Ann. § 16–13–30(j)(1) (2007)). [...]

Moncrieffe: Supreme Court Does a Reality Check on the Immigration Detention & Deportation System

Sarah Rose Weinman | National Immigrant Justice Center Adrian is a green-card holder who has lived lawfully in the United States since age three. In 2007, he was arrested in Georgia after police found 1.3 grams of marijuana in his car. He pleaded guilty to the Georgia state offense of “distribution of marijuana,” and, as a first-time offender, was sentenced only to probation. But federal immigration officials said that Adrian’s offense qualified as an “aggravated felony” under federal immigration law. As a result, he was mandatorily detained in immigration custody, placed in deportation [...]