June 14, 2010

Supreme Court Decides Carachuri-Rosendo v. Holder

On June 14, 2010, the Supreme Court decided Carachuri-Rosendo v. Holder, No. 09-60, holding that an immigration judge may not reclassify a legally resident alien's state-court conviction for simple drug possession, a misdemeanor, as a conviction for an "aggravated felony" that permits the alien's deportation by assuming that the offense would have been charged as a felony if it had been prosecuted in federal court. Deportability depends on the conviction that was actually adjudged, not on a conviction that hypothetically might have been possible on the facts of the case.

Jose Crachuri-Rosendo was convicted in Texas court of misdemeanor possession of marijuana, for which he received a 20-day jail sentence. A year later, he was convicted of misdemeanor possession of one tablet of a prescription antianxiety drug, for which he received a 10-day sentence. Although Texas law would have allowed enhancement of his sentence for the second offense on account of the prior conviction, the state did not elect to seek an enhanced sentence. The federal government then initiated removal proceedings against Crachuri-Rosendo. He conceded that he was removable but claimed that he was eligible for discretionary relief from removal under a provision of the Immigration and Nationality Act (INA) allowing such relief if a lawful permanent resident "has not been convicted of any aggravated felony." "Aggravated felony" is defined as including a "drug trafficking crime," which in turn is defined as "any felony punishable under," among other statutes, the Controlled Substances Act (CSA).

Under the CSA, simple drug possession ordinarily is a misdemeanor, but the statue permits a felony charge in the case of a second or subsequent offense. Thus, a conviction for recidivist drug possession would have qualified as an "aggravated felony" to bar Crachuri-Rosendo's request for discretionary relief from removal. The immigration judge treated his second state conviction as such a conviction and held that he was ineligible for discretionary relief. The Board of Immigration Appeals and the Fifth Circuit affirmed. The Fifth Circuit reasoned that, because the conduct on which the second state conviction was based could have been charged as a felony under the CSA, that conviction qualified as an "aggravated felony."

The Supreme Court reversed unanimously, holding that the actual conviction, rather than what might have been charged, determines whether a prior conviction involves an "aggravated felony" for INA purposes. An immigration court cannot enhance the state offense of record because it knows of facts that would have authorized a greater penalty than was sought and imposed in the state court. Allowing an immigration judge to apply his or her own recidivist enhancement after the fact would denigrate state prosecutors' independent judgment in enforcing the criminal laws of their own state. The Court said that the Fifth Circuit's hypothetical approach was based on a "misreading" of Lopez v. Gonzales, 549 U.S. 47 (2006). Although Lopez holds that a state drug conviction does not qualify as an "aggravated felony" for INA purposes unless the offense for which the individual was actually convicted would have been punishable as a felony under federal law, the case does not permit an immigration court to base its ruling on facts that could have, but did not, serve as the basis for the state conviction and punishment.

Justice Stevens delivered the opinion of the Court, in which Justices Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Alito, and Sotomayor joined. Justices Scalia and Thomas filed opinions concurring in the judgment.

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