Kerry Bretz Immigration Law Blog on Lawyers.com

As a New York City immigration attorney, I took special note on March 31, 2010, of the fact that the U.S. Supreme Court heard arguments on an issue that affects noncitizens who have more than one misdemeanor drug conviction.  Specifically, the U.S. Supreme Court heard arguments on whether Jose Angel Carachuri-Rosendo could be considered as having committed an aggravated felony based on two convictions under state law for simple drug possession.  This case, Carachuri-Rosendo v Holder, 570 F.3d 263, 264 (5^th Cir. 2009), is on appeal from the U.S. Court of Appeals for the Fifth Circuit (“Fifth Circuit”).  The Fifth Circuit affirmed a finding made by the Immigration Judge and upheld by the Board of Immigration Appeals that Mr. Carachuri-Rosendo had been convicted of an aggravated felony because it was hypothetically possible for him to have been prosecuted under the recidivist provision of the Federal Controlled Substance Act (“CSA”), which is a felony.  The Fifth Circuit reached this conclusion despite the fact, as stated in the Petition for A Writ of Certiorari, “there was no charge or finding of a prior conviction in his prosecution for possession.”  This questionable line of reasoning is the minority view among the U.S. Circuit Courts.  Only one other U.S. Circuit Court embraces it, namely the Seventh.  In contrast, four U.S. Circuit Courts rightly take the opposite view -- the First, Second, Third, and Sixth.

A conviction for a crime classified as an aggravated felony under the Immigration and Nationality Act carries harsh, life-changing consequences.  The noncitizen is subject to removal at any time from the United States by virtue of the aggravated felony.  When and if the federal government initiates removal proceedings, that noncitizen is very likely to be held ineligible for most forms of relief, including cancellation of removal and certain waivers.  Once deported, that noncitizen faces a lifetime ban from re-entering the United States, as a visitor or immigrant.  While it is possible to apply for a waiver allowing the readmission of such deportees, the granting of such waiver requests is generally a long shot.

Given the dreadful consequences described above, it seems unjust for a noncitizen to be punished so severely for misdemeanor drug convictions, especially if the criminal incident did not involve victims, trafficking or violence.  In the case being reviewed by the U.S. Supreme Court, the Immigration Judge ruled Jose Angel Carachuri-Rosendo to be ineligible to apply for cancellation of removal because he had pleaded guilty to having less than two ounces of marijuana and had later pleaded guilty to having a single tablet of Xanax without a prescription.  (Xanax is an anti-anxiety medication.)  As a result, Jose Angel Carachuri-Rosendo, a longtime resident, was ordered deported for these minor offences as if these added up to an egregious crime against society.

The outcome of this case before the U.S. Supreme Court will affect numerous immigration court respondents, including clients of Bretz & Coven, LLP, a New York City immigration law firm.   On the day the U.S. Supreme Court heard arguments in the above-mentioned case, I was interviewed, along with one of my clients, Elvis Martinez, on a local TV station, NY1 TV, about the implications of the case for immigration court respondents with similar cases.  Elvis Martinez is one of those respondents.  He had brought his case to Bretz & Coven because he wanted attorneys with experience on deportation law in New York City.  He is a longtime resident (more than 20 years) with three separate misdemeanor marijuana possession convictions.  In the television interview, I pointed out that the Supreme Court is inclined to accept a case where there is conflict among the Circuit Courts on the applicable law. Fortunately, the case of Elvis Martinez was not in the Fifth Circuit.  Bretz & Coven, with its immigration lawyers in New York City, was able to appeal his case to the U.S. Court of Appeals for the 2^nd Circuit (“Second Circuit”).  The Second Circuit held that his convictions did not amount to an aggravated felony and that he was eligible for relief.   

Unfortunately, a significant number of longtime New York residents in need of New York City immigration help have not been able to benefit from the Second Circuit’s enlightened ruling on this issue.  The reason is that many of them after going into ICE custody are arbitrarily transferred to Louisiana and Texas.  Their immigration cases are then heard in immigration courts in those states, subject to the controlling precedents of the Fifth Circuit, with its unjust treatment of multiple misdemeanor drug convictions.  It is deplorable that the determination of a person’s eligibility for relief from deportation can vary so starkly depending on which Circuit Court of Appeals has jurisdiction.  I look forward to the U.S. Supreme Court issuing a decision in Carachuri-Rosendo v Holder that remedies this unequal treatment of multiple misdemeanor drug convictions among the U.S. Circuit Courts of Appeals.