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United States Supreme Court Offers Relief for Some Immigrants With Drug Convictions

Are You a United States Permanent Resident or Immigrant and in Deportation Proceedings for a Criminal Drug Charge?

Recently the United States Supreme Court pushed back on immigration’s hard stance on drug convictions. In the case of Carachuri -Rosendo v. Holder the Court limited the instances where an individual who is in removal proceedings or is subject to removal from the United States cannot seek cancellation of removal.

As a general proposition an immigrant convicted of an “aggravated felony” is not eligible for cancellation of removal. The term “aggravated felony” encompasses any felony punishable under the Controlled Substances Act (CSA).

Usually a person convicted of possession of a small quantity of drugs is charged with a misdemeanor under the CSA and not a felony and therefore, depending upon the facts and circumstances of the case, not subject to removal. The problem occurs when an individual is charged with a second simple possession. If the prosecutor seeks to elevate the charges under a recidivist statute the second simple possession drug conviction is now a felony under the CSA and the immigrant is not eligible for cancelation of removal.

But what if the second simple possession charge was not so enhanced is that still recidivist possession and can the immigrant seek cancellation of removal?

The Supreme Court tackled this issue in Carachuri -Rosendo v. Holder finding “[for] a state offense to qualify as an “aggravated felony,” so as to preclude cancellation of removal, the defendant must have been convicted of as crime that is itself punishable as a felony under federal law.”

The Court found that it was not enough that there existed facts outside the record, holding a prior conviction for simple possession that could have resulted in a federal felony conviction was not enough to elevate the second conviction to an “aggravated felony”. The fact that the defendant could have been prosecuted as a felon was not enough and not relevant.

What this now means is that the door is opening up to give so many non-citizens an opportunity to fight their case in immigration court and seek cancellation of removal.

Call the Law Office of Olga M. Arandia, P.C. for an immediate consultation at (718) 263-2100. Hablamos Español.

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