In just the last two weeks, congressional calls to #EndFamilyDetention have turned the tide of momentum significantly.
AILA Doc No. 10021159 | Dated February 11, 2010
Last December, the U.S. Supreme Court granted certiorari in CARACHURI-ROSENDO V. HOLDER (09-60) to consider whether "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." Last week, AILA signed on to an amicus brief submitted by 18 other "community groups, civil rights organizations, immigrant justice organizations and legal service providers." View the brief.
One of the 21-part definition of "aggravated felony" is a "drug trafficking crime (as defined in section 924(c) of title 18)." Section 924(c) defines the "drug trafficking crime" as "any felony punishable under the Controlled Substances Act [CSA]." Simple possession of a controlled substance is ordinarily a misdemeanor under the CSA. However, under the CSA, when a person unlawfully possesses a controlled substance after already sustaining a prior state or federal possession conviction, the prosecutor has the option of seeking a recidivist sentencing enhancement. If pursued successfully by the prosecution, this sentencing enhancement would convert what would normally be a misdemeanor into a felony. So, what if a person sustained two or more convictions for simple possession but the prosecutor never sought a recidivist enhancement, but could have? The Seventh and Fifth Circuit Courts of Appeal have concluded that a subsequent simple possession conviction could be considered an aggravated felony because, hypothetically, the offense could have been prosecuted as a felony. So far, four other circuit courts and the BIA disagree with the 5th and 7th Circuits. The Supreme Court took the case to resolve the Circuit split.
Attorneys for Carachuri submitted a brief which examines the statutory language and effectively argues why the "hypothetical felony" rule is bad law. The Amicus brief examines the impact of the "hypothetical felony" rule on the lives of immigrants with minor criminal records. Using examples from real cases, the authors paint a grim picture of long-time residents being separated from family in the United States based solely on minor drug convictions. They also detail success stories of aliens granted relief from removal outside the 5th and 7th Circuits. The Amicus Brief in Carachuri represents a refreshing departure from our system's robotic and unemotional adherence to statutory interpretation. The Amicus Brief asks more matter-of-fact questions: In light of the harsh consequences which flow from the "aggravated felony" label, does the 5th and 7th Circuits interpretation of the INA make sense? Does it make sense to stretch the law, and re-characterize misdemeanor acts as felonious acts, in order to forcibly deport permanent residents? In doing so, aren't we categorically condemning the exact type of person (resident aliens with minor convictions but also established family and economic ties to our country) who would normally be deserving of a favorable exercise of discretion in Immigration Court?
It is my hope that as the Justices examine Carachuri's statutory argument, they also take time to consider the impact of their ruling on the lives of the ordinary people, as effectively described in the Amicus Brief.
Cite as AILA Doc. No. 10021159.