Is recidivist possession always a felony for immigration purposes?

By Anna Christensen
on Mar 31, 2010 at 8:18 am

This morning, the Court will hear oral arguments in No. 09-60, Carachuri-Rosendo v. Holder.  Check the Carachuri-Rosendo SCOTUSwiki page for additional updates.

In 1952, Congress enacted the Immigration and Nationality Act (INA), which – among other things – outlines the circumstances under which immigrants can be removed from the country.  Under the INA, aliens convicted of violations of a federal law “relating to a controlled substance” are removable but may seek cancellation of removal from the Attorney General.  However, an alien is ineligible for cancellation of removal if he has been “convicted of an aggravated felony,” which the INA defines as any “drug trafficking crime,” which in turn is defined as “any felony punishable under the Controlled Substances Act [CSA].”

The CSA sets out the classification and sentencing terms for federal drug offenses, and, in relevant part, characterizes simple possession of a controlled substance as a misdemeanor.  If an individual is found to possess a controlled substance after a prior misdemeanor drug conviction has become final, the prosecutor may seek a recidivist enhancement for the second offense, thereby converting the second misdemeanor possession offense into a felony.  To do so, however, the prosecutor must follow a series of procedures which give the court and the defendant an opportunity to address the validity of the prior convictions.

Petitioner Jose Angel Carachuri-Rosendo was born in Mexico and obtained lawful permanent residency after immigrating to the United States as a child.  In 2004, he was convicted in Texas for possession of a small amount of marijuana, a Class B misdemeanor according to state law.  He was arrested again the following year, this time for possession of one tablet of Xanax, a Class A misdemeanor in Texas.  Carachuri-Rosendo pled nolo contendere to the charge, and because his prior offense had been for a Class B misdemeanor, the prosecutor in his case could not use that conviction as the basis for a recidivist enhancement.

In 2006, the federal government charged Carachuri-Rosendo with being removable based on his Class A misdemeanor conviction.  Although an immigration judge indicated that he could seek cancellation of removal, the judge ultimately denied such relief, reasoning that Carachuri-Rosendo was ineligible for cancellation because his conviction for possession constituted a conviction for an aggravated felony.  Carachuri-Rosendo appealed to the Board of Immigration Appeals (BIA), which concluded that, although the Fifth Circuit might “want to reexamine its law in the wake of” the Court’s then-recent decision in Lopez v. Gonzales, it was compelled by that circuit’s precedent to affirm the immigration judge’s decision.

The court of appeals affirmed, and Carachuri-Rosendo petitioned for certiorari, identifying a circuit split on the question whether an individual convicted under state law for a simple possession misdemeanor has been convicted of an aggravated felony because he could have been prosecuted for recidivist possession.  The Court granted the petition on December 14, 2009.

In his brief on the merits, Carachuri-Rosendo categorically argues that he was not convicted of an aggravated felony by virtue of his second possession conviction.  The INA, he contends, provides for mandatory removal only when individuals “have ‘been convicted’ of an aggravated felony; the possibility that an individual “‘could have been convicted’ of an aggravated felony” is irrelevant.

Because the convicting court did not enter a finding of recidivism in his case, Carachuri-Rosendo argues, he has not been “convicted” of felony recidivism and thus cannot be ineligible for cancellation of removal.  Citing the Court’s ruling in Lopez, which indicates that drug possession “fails to constitute ‘trafficking’ [an aggravated felony] as a matter of ordinary meaning,” Carachuri-Rosendo asserts that a possession offense cannot be construed to constitute an aggravated felony absent a “clear statutory command.”  Under the terms of the INA, he notes, the term “conviction” refers to “a formal judgment of guilt…by a court”; because his own circumstances do not meet this test, he has not been “convicted” of an aggravated felony.

To underscore the perceived flaws in the Fifth Circuit’s reasoning, Carachuri-Rosendo speculates that if he had been prosecuted under federal instead of state law, he would have been ineligible for a sentence of over one year, and therefore incapable of being charged with a felony; nonetheless, the Fifth Circuit would deem him to have been “convicted” of an aggravated felony, because he could have been charged with recidivism. Carachuri-Rosendo further argues that even if recidivism were an element of aggravated felony, without a conviction for recidivism, a defendant has been convicted of conduct that is a misdemeanor and not a felony.

Carachuri-Rosendo also identifies a series of procedures that in his view are required by the CSA before a finding of recidivist possession can be reachedunder federal law.  The  existence of this prosecutorial screen, he continues, reflects Congress’s view “that prosecutors possess the experience and judgment to determine the circumstances in which a charge of recidivism…is appropriate.”  These procedures must also be met in a corresponding state prosecution.  Because these “absolute preconditions were not met in his case, he argues, it cannot be said that he was convicted of an aggravated felony.

Further, the Fifth Circuit’s interpretation, according to Carachuri-Rosendo, has the potential to visit “unnecessarily…harsh” consequences upon lawful permanent residents with strong ties to the United States.  A finding in his favor, though, would not automatically entitle individuals in similar circumstances to remain in the country, but would merely afford them the opportunity to request discretionary relief.  Finally, pointing to principles of lenity in both criminal and immigration law, Carachuri-Rosendo urges the Court to resolve any lingering ambiguities in his favor.

In its brief on the merits, the government focuses on the text of 8 U.S.C. 1229b(a)(3) and 1101(a)(43)(B) and 18 U.S.C. 924(c)(2), which stipulate that aliens convicted of offenses that are “punishable” as felonies are ineligible for cancellation of removal. Regardless of the nature of Carachuri-Rosendo’s actual sentence for his second conviction, the government contends, the offense was “punishable” as a felony based on the Court’s ruling in Lopez, which indicated that immigration consequences of state convictions should be governed by Congress’s perception of the offense’s seriousness, rather than by the nature of the actual punishment.

Turning to Carachuri-Rosendo’s point that his recidivism was not established by the state court, the government responds that no such determination is necessary before an offense can be “punishable” as a felony under the terms of the CSA.  In Lopez and in Nijhawan v. Holder (2009), the Court maintained that a determination that an individual was “convicted” of an offense does not require every fact “relevant to categorization of [that] offense” to be established in the state conviction.  “By ignoring the fundamental distinction between offense elements and sentencing factors,” Carachuri-Rosendo would have the definition of the term “aggravated felony” “depend on how an offender actually was punished in state court, rather than…on how the offense was ‘punishable’…under federal law.”

Addressing Carachuri-Rosendo’s reliance on the point that specific procedures are required for a recidivist felony conviction, the government argues that the classification of an offense as an aggravated felony depends on how the offense could have been punished in federal court, not on how it actually was punished in state court.  Further, the government emphasizes that there was a deliberate effort by Congress’s behalf to address a “serious threat to public safety” by treating recidivist drug offenses as aggravated felonies under the terms of the INA.  A ruling in Carachuri-Rosendo’s favor, the government contends, would constrict the scope of that provision and would lead to a “patchwork application of federal immigration law,” in direct contrast to the Court’s interpretation in Lopez of Congress’s intent.  Finally, turning to Carachuri-Rosendo’s reliance on the presumption of lenity in criminal and immigration law, the government counters that no such canon is necessary in this case because there are no lingering ambiguities in the law.