By Patty Corrales, former Senior Attorney for ICE I just got back from my son’s soccer game. It was very intense. These ten year old boys were playing hard as a team to score a goal understanding what they needed to do and what they couldn’t do within the confines of the rules of soccer. As a mom, I was totally into the game and I, like the other parents, was at the edge of my seat. Not only were the boys dripping with sweat from the heat of the afternoon but they were sweating with anticipation of winning the game and they just needed one goal. It was the fourth quarter and my son, the [...]
2 crImmigration cases at SCOTUS term that starts Monday
Another Supreme Court term begins on Monday and the Court has already agreed to hear arguments in two crImmigration cases: Moncrieffe v. Holder, No. 11-702, and Chaidez v. United States, No. 11-820. The first case once more entangles the Court in the aggravated felony provisions of immigration law, while the second brings the landmark Padilla v. Kentucky, 130 S. Ct. 1473 (2010), back to the high court. The first crImmigration case to appear before the justices will be Moncrieffe on October 10. The Court has been asked to decide whether possession with intent to distribute constitutes a drug [...]
BIA: City drug ordinance violation is a state law conviction; counts for recidivist offender purposes
By Guest Blogger Linus Chan (Staff Attorney, DePaul University Asylum and Immigration Law Clinic) In deciding Matter of Cuellar-Gomez, 25 I&N Dec. 850 (BIA July 18, 2012), the BIA answered three important questions of crimmigration law: when is a conviction “criminal”, what is meant by “state law”, and finally, how should immigration courts apply the categorical approach to decide whether someone with two marijuana possession convictions could qualify as a “drug trafficker”? The year 2008 was not a good one for Cuellar-Gomez. In January, he was charged and found guilty in Wichita [...]
BIA: Burden to show possession with intent to distribute isn’t aggravated felony is on respondent; says categorical approach inapplicable
The BIA held that the burden of proof rests with the noncitizen respondent to show that a possession of marijuana with intent to distribute conviction is not an aggravated felony because it involved a “small” amount of the drug, and that the respondent may prove this by using evidence outside the record of conviction. Matter of Castro Rodriguez, 25 I&N Dec. 698 (BIA 2012) (Pauley, Mullane, and Guendelsberger, Board members). Board member Pauley wrote the panel’s decision. This case involved an LPR convicted of possession with the intent to give or distribute less than one-half ounce of [...]
Supreme Court to revisit “aggravated felony” provision: Is a crime that might be a federal misdemeanor a drug trafficking offense?
Having just decided in February that two tax crimes constitute aggravated felonies under the Immigration and Nationality Act, the U.S. Supreme Court will again jump into the messy nuances of the aggravated felony provision in Moncrieffe v. Holder, in which the court granted certiorari today. Moncrieffe v. Holder, No. 11-702 (see order granting cert). This time the Court will decide whether possession of marijuana with intent to distribute comes within this broad category of offenses that significantly decreases a non-citizen’s ability to remain in the United States. Last November, the U.S. [...]
5th Cir: NY sale of controlled substance is not drug trafficking type of aggravated felony
In an unpublished decision released last week, the Fifth Circuit Court of Appeals held that a conviction for criminal sale of cocaine in the second degree, N.Y. Penal § 220.41, does not constitute drug trafficking, a type of aggravated felony. Davila v. Holder, No. 08-60530, slip op. (5th Cir. June 15, 2010) (Higginbotham, Davis, and Benavides). Judge Davis wrote the panel’s opinion. This case involved a citizen of Peru who pleaded guilty to criminal sale fourteen years after becoming an LPR. Davila, No. 08-60530, slip op. at 2. The IJ determined that this conviction constituted an [...]
SCOTUS: Second simple drug possession offense is not aggravated felony unless prosecuted as recidivist offense
In a decision of enormous significance to many thousands of non-citizens, the U.S. Supreme Court announced this week that a second or subsequent simple drug possession offense does not constitute illicit trafficking in a controlled substance unless the subsequent offense was prosecuted in the criminal proceeding on the basis of a prior conviction. Carachuri-Rosendo v. Holder, No. 09-60, slip op. (Jun. 14, 2010) (Stevens, Roberts, Kennedy, Ginsburg, Breyer, Alito, and Sotomayor; Scalia and Thomas concurred in the judgment). Justice Stevens wrote the Court’s opinion. José Ángel [...]
SCOTUS argument today: Is recidivist drug possession always an aggravated felony?
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 [...]