U.S. Supreme Court

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: Defense attorney must inform client whether plea carries risk of deportation

In a decision published yesterday, the U.S. Supreme Court held that criminal defense counsel must inform a client whether a plea carries a risk of deportation. Padilla v. Kentucky, 559 U.S. __, No. 08-651, slip op. (March 31, 2010). Justice Stevens delivered the majority opinion, which Kennedy, Ginsburg, Breyer, and Sotomayor joined. Justice Alito concurred in the judgment, with whom Chief Justice Roberts joined. Justice Scalia dissented, joined by Thomas. José Padilla, a 40-year lawful permanent resident, pled guilty to transporting a large amount of marijuana in Kentucky. Padilla, No. [...]

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 [...]

SCOTUS: “Physical force” defined as violent force in statute identical to “crime of violence” definition; affirms Leocal’s definition of COV aggravated felony

The U.S. Supreme Court held this week that the phrase “physical force” means “violent force” for purposes of a statute that uses the exact language as the statutory definition of “crime of violence.” Johnson v. United States, No. 08-6925, slip op. (March 2, 2010) (Scalia, Roberts, Stevens, Kennedy, Ginsburg, Breyer, and Sotomayor). Scalia wrote for the majority; Alito dissented and was joined by Thomas. This case involved a conviction for Florida’s felony offense of battery, Fla. Stat. § 784.03(1)(a), (2). The question before the Court was whether the battery conviction constitutes a [...]

Article: SCOTUS should overturn 5th Cir Carachuri-Rosendo conclusion that two possession convictions equals aggravated felony

In a Case Comment appearing in the latest issue of the Suffolk University Law Review, Lauren P. Gearty argues that the Supreme Court should disagree with the Fifth Circuit’s holding in Carachuri-Rosendo v. Holder, 570 F.3d 263, 267-68 (5th Cir. 2009) (discussing United States v. Cepeda-Rios, 530 F.3d 333, 335 (5th Cir. 2008)), “that a second possession offense may constitute an aggravated felony regardless of whether an alien is charged or convicted as a recidivist offender.” Lauren P. Gearty, Immigration Law-Second Drug Offense Not Aggravated Felony Merely Because of Possible Felony [...]

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 [...]