A few weeks ago, we discussed the conspicuous absence of AG Holder from the ongoing Silva-Trevino controversy.  Since that time, the BIA has issued another opinion attempting to articulate when it is proper for an IJ to abandon traditional categorical (Step One) and Modified Categorical (Step Two) and resort to Silva-Trevino’s amorphous Step Three.

Removal matters decided solely on Silva-Trevino Step Three continue to make their way to Circuit Court.  The issue then becomes whether the agency’s opinion in Silva-Trevino is entitled to any judicial deference, and if so, how much.

AILA, joined by the Immigrant Defense Project, Immigrant Legal Resource Center, National Immigration Project of the National Lawyers’ Guild, and the University of Maryland School of Law Immigration Clinic, filed an Amicus Brief with the 4^th Circuit Court of Appeals last week arguing former AG Mukasey’s needless departure from a century of case law in Silva-Trevino is entitled to no deference.  In fact, the 4^th Circuit observed thirty-five years ago that the focus of the INA “is on the type of crime committed rather than on the factual context surrounding the actual commission of the offense.”  Castle v. INS, 541 F.2d 1064, 1066 n. 5 (4^th Cir. 1976).  There was no ambiguity then (which could make room for reasonable agency interpretation) and there is no ambiguity now.  AG Mukasey simply ignored the plain language of the statute, which makes the focus on the criminal conviction, rather than the circumstances surrounding a criminal arrest.

The Waheed brief was assembled and edited by Jeremy McKinney, Maria Andrade, and Russell Abrutyn for AILA and Isaac Wheeler for the Immigrant Defense Project.  However, the brief itself is simply the latest rendition of what AILA and other associations have been saying since Silva-Trevino was released in 2008.  The original scholarship came from many others who blazed the trail, such as Br. of IDP et al. as Amicus Curiae, Prudencio v Holder, No. 10-2382 (4^th Cir. 2011) and Br. of AILA et al. in Support of Motion for Reconsideration, Matter of Silva-Trevino (A.G. 2008).  Hopefully, our unified message and team approach to Silva-Trevino litigation will continue to yield results!

Two months before leaving office, President George W. Bush’s Attorney General, Michael Mukasey, issued a landmark immigration decision overturning a century of jurisprudence regarding the analysis of criminal convictions for immigration consequences.  In a nutshell, the decision states that to determine whether a crime is a “crime involving moral turpitude” (CIMT), first an Immigration Judge looks to the elements of the offense and asks whether the crime categorically involves moral turpitude or not (the inquiry ended there for most of the last century).  If there is a “realistic probability” that the prohibited act sometimes does and sometimes does not involve moral turpitude, then the Court can look to the record of conviction to see if the specific case involves moral turpitude.  If the record of conviction does not yield an answer, the Court may consider evidence outside the record of conviction.  Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).  The BIA quickly illustrated that while DHS has the ability to attach removal consequences in three different ways (if step 1 doesn’t work, try step 2; if step 2 doesn’t work, try step 3), the noncitizen in removal proceeding does not share the ability to detach immigration consequences based on the underlying circumstances of the conviction.  See, e.g., Matter of Louissaint, 24 I. & N. Dec. 754 (BIA 2009).

As the AILA Amicus Committee reported last year, “Immigrant advocates, although caught completely unawares–the AG had never told Mr. Silva-Trevino, let alone the broader legal community, why the case was certified–reacted swiftly. Several organizations submitted an amicus brief to the AG urging reconsideration of his decision because of the defective process behind the certification, its inconsistency with a century of uniform precedent, and the negative practical consequences Silva-Trevino will have on the functioning of immigration and criminal systems.”

To date, Attorney General Holder has been silent on this issue.  The administrative board he oversees, the BIA, continues to apply Silva-Trevino with vigor.  Most recently, the Board issued a precedent decision with the following headnote:

Absent otherwise controlling authority, Immigration Judges and the Board of Immigration Appeals are bound to apply all three steps of the procedural framework set forth by the Attorney General in Matter of Silva-Trevino for determining whether a particular offense constitutes a crime involving moral turpitude.

Matter of Guevara Alfaro, 25 I. & N. Dec. 417 (BIA 2011) (emphasis added).  Reading the headnote in isolation, one could conclude that every case addressing whether an offense is a CIMT now requires a “mini-trial” since step 3 (allowing the IJ to consider any evidence) swallows steps 1 and 2 of the inquiry.  Such a reading, however, contradicts the AG’s own words.  Silva-Trevino, 24 I&N Dec. at 703 (“allowing inquiry beyond the record of conviction does not mean that the parties would be free to present ‘any and all evidence bearing on an alien’s conduct leading to the conviction.’ … In many, if not most, cases, the judge will not have to go beyond the record of conviction, which includes the transcript of any plea.”).

Unfortunately, this flawed headnote reading is already at play in Immigration Courts.  For example, an Atlanta Immigration Judge had terminated proceedings in a case presenting the question whether Georgia’s public indecency statute was a CIMT.  The IJ had terminated proceedings, finding that Georgia’s public indecency statute was not categorically a CIMT (Matter of Mueller, 11 I&N Dec. 268 (BIA 1965)), and the conviction record failed to evidence a lewd or evil intent.  DHS filed a Motion for Reconsideration.  Guevara Alfaro was released while the DHS motion was pending, and DHS immediately notified the IJ of the BIA decision.  The IJ denied DHS’s Motion for Reconsideration, but, in doing so, applied all three steps of Silva-Trevino.  This exercise prolonged the respondent’s detention for several more weeks.

Understanding Guevara Alfaro requires reading beyond the headnote.  The specific question before the Board was whether “the substantive holding with regard to statutory rape offenses in [Silva Trevino] is limited to cases in which the defendant knew or should have known the victim’s age, and the question whether the respondent’s case meets that criterion can be determined only upon application of the third step of Silva-Trevino’s procedural framework.”  Id. at 419.  The Board concluded in determining whether an “indecency with a child” conviction was a CIMT, an additional inquiry would have to be made to determine whether respondent knew or should have known the age of the victim.  This does not mean that such an additional inquiry would be necessary in “many, if not most” cases.  The Guevara Alfaro headnote, however, does not make any such limitation.  The application of this case is just the latest example of “circumstance-specific” analysis run amuck.

Prior to Silva-Trevino, we have a century of jurisprudence that gives prosecutors, criminal defendants and their attorneys general guidance as to what is and what is not a CIMT, in an age where “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”  Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  We have a century of jurisprudence which promotes the uniform application of the law to similar convictions (regardless of disparate underlying facts).  We have a century of jurisprudence that promotes the efficient adjudication of removal matters.  Silva-Trevino and its progeny turn these principles on their head.

Our current Attorney General needs to hit the “reset” button and get us back to established precedent – which is just in its sheer simplicity — “Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed. When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral. Conversely, when it does, no evidence is competent that he was in fact blameless.” United States ex rel. Robinson v. Day, 51 F.2d 1022, 1023 (2nd Cir. 1931) (L. Hand, J.).

Mr. Holder, where art thou?

One of the funniest parts of my job (in a sad way) is explaining to criminal defense attorneys, prosecutors, and state court judges that the INA’s definition of the word “conviction” differs from their ordinary sense of the word.  In 1996, Congress changed the definition of the word “conviction” to read as follows:

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).  Ignorance of the definition can result in disaster.  A criminal defendant can be subjected to mandatory detention and removal, even when a prosecutor and court do not desire a defendant’s exile from the United States.  North Carolina’s best example of this is its drug diversion program.  N.C. Gen. Stat. § 90-96.   A criminal defendant with a first-time drug possession charge is often offered this program to avoid a conviction.  Entry into “90-96″ requires a guilty plea or finding of guilt and placement on probation by a state court judge.  Once the conditions of probation are successfully completed, the drug possession charge is dismissed, and the criminal defendant may later become eligible to expunge the charge.  Id.  Even though this statute was designed and intended to promote rehabilitation and a second chance at life without carrying the “felon” label, North Carolina’s “90-96″ program seems to satisfy the INA’s definition of conviction.  See Matter of Salazar, 23 I&N Dec. 223 (BIA 2002).

One would think the plain language of the statute is expansive enough, but of course some judges have stretched the boundaries of the word “conviction” further.  See, e.g., Singh v. U.S. Atty. Gen., 561 F.3d 1275, 1279 (11^th Cir. 2009)(a state’s conviction of a minor in adult court is considered a conviction for immigration purposes); Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008)(holding that courts costs alone constitute a “penalty”).

Therefore, it was refreshing to see a panel of the 4th Circuit recently embrace a more natural reading of the word “conviction.”  In Crespo v. Holder, __ F.3d ___, No. 09-2214 (4th Cir. 2011), the Court held that some criminal court adjudications conducted pursuant to Virginia’s first offender statute do not constitute convictions under the INA.

“Crespo’s 1997 adjudication was pursuant to Virginia Code § 18.2-251, which applies to a first offender who ‘pleads guilty to or enters a plea of not guilty to possession of … marijuana.’ Va.Code Ann. § 18.2-251. After such a plea, ‘if the facts found by the court would justify a finding of guilt,’ the court may, ‘without entering a judgment of guilt,’ instead ‘defer further proceedings and place’ the offender on probation. Id. In his case, Crespo pled not guilty to the offense and the judge found facts justifying a finding of guilt and deferred adjudication over the Commonwealth’s objection. Crespo was sentenced to one year of probation, which he served without incident.”  Id. at 5-6 (slip opinion).

The question thus became whether in deferred adjudication proceedings, a plea of not guilty combined with a judicial finding of facts “justifying a finding of guilt” satisfies the first prong of the INA’s definition of conviction.  The government argued such a finding “made by the judge under § 18.2-251 is the functional equivalent of a judge finding the alien ‘guilty’.”  Id. at 6-7.  The panel disagreed.  “[I]f the judge finding the alien ‘guilty’ was intended to encompass Crespo’s situation then the phrase ‘or has admitted sufficient facts to warrant a finding of guilt’ would be rendered superfluous since an alien’s plea of guilty would likewise encompass such an admission.”  Id. at 7.  The panel found the most natural reading requires that “the defendant’s guilt has been established by a trial, plea, or admission.”  Id.  An informal factual inquiry is not a trial.  Crespo made no guilty plea or admission.  Therefore, the first prong of the INA’s definition of conviction was not satisfied.

The Crespo decision should encourage us all to re-examine our own State’s first offender statutes.  The above-referenced “90-96″ program, for example, is limited to a criminal defendant who “pleads guilty to or is found guilty.”  N.C. Gen. Stat. § 90-96(a).  What does it mean in North Carolina to be “found guilty”?  Is it analogous to Virginia’s judicial finding of facts sufficient to justify a finding of guilt, or is it analogous to a trial?  Thanks to Crespo, I look forward to finding out.

For years, practitioners in North and South Carolina have been the victims of a forced marriage with the Atlanta Immigration Court and the 11th Circuit Court of Appeals.  In late 2008, we finally got our own Immigration Court in Charlotte, NC.  Yesterday, the BIA issued its first precedent decision originating from the Charlotte Immigration Court.  And it was a big one…

Luis Felipe Garcia-Arreola is a long-time permanent resident with a drug conviction.  This conviction makes Mr. Garcia-Arreola deportable but eligible for 212(c) relief.  After getting arrested on a domestic assault (which was dismissed by the State of NC) and transferred to ICE custody, ICE sought mandatory detention pursuant to INA § 236(c) and Matter of Saysana.

In a brave decision, Immigration Judge Teresa Holmes-Simmons distinguished Saysana with the facts of Mr. Garcia Arreola’s case and recognized that Saysana had been universally rejected by Federal District Courts.  DHS appealed and AILA Amicus Committee stepped in to provide amicus support.  During this time, the Saysana case itself was rejected by the First Circuit Court of Appeals.  DHS then changed its position and retreated.  Yesterday, the BIA overruled Saysana!

The good news:  the holding specifically states that mandatory detention applies where there has been a (a) release (b) from non-DHS custody (c) after October 8, 1998, (d) that is “directly tied” to the basis for detention under INA §§ 236(c)(1)(A)–(D).

The bad news:  Primarily because it was unaddressed by the parties, the Board left standing another horrible mandatory detention decision – Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), a deeply-divided Board decision which concluded mandatory detention applies even if ICE fails to assume custody of an alien “when released.”  Our work is not done.  The AILA Amicus Committee believes returning to the plain language of the statute means not only overruling Matter of Saysana, but also Rojas.  Like Saysana, Rojas has led to a mountain of litigation and the inconsistent application of our mandatory detention statute nationwide.

The Board’s “resort to contortions” in Rojas and Saysana has only resulted in creating more chaos in our immigration detention system and wasted hours and resources on needless litigation, all in an effort to prevent an Immigration Judge from exercising discretion in bond redetermination decisions.  See Rojas, 23 I&N Dec. at 130 (dissent).   Our committee celebrates the Board’s decision yesterday in Garcia-Arreola, but also looks forward to fully restoring the exercise of discretion in Immigration Court.

 –by guest writer Trina Realmuto at the National Immigration Project

Tired of filing a bond motion and preparing for a bond hearing only to find out that your client has been transferred before the hearing date and the IJ refuses to conduct the hearing due to the transfer?  Well, if you practice in the Carolinas, Kentucky, or another of the many jurisdictions where this routinely happens, you’re likely to be fed up.

The practice of moving a detainee after a bond hearing is requested and scheduled but before it can take place impedes your ability as an attorney to represent your client.  It forces you to file subsequent bond motions in other immigration courts and travel to the location of the new hearing (or wait on the phone for hours for a telephonic bond hearing), and has a draconian impact on detainees, many of whom cannot afford to pay for additional filings and removal representation, post bond, and put food on the table.  And, significantly, detainees, including those who ultimately are granted bond, have spent additional days, weeks, and months simply waiting for a rescheduled bond hearing to take place.  Why?

Well, it all boils down to the interpretation of 8 C.F.R. § 1003.19(c), the regulation saying that a detainee’s bond hearing request shall be filed where the person is detained.  Advocates say that, as long as the request is filed with the immigration court having administrative control of the place of detention at the time the request is filed, the detainee has complied with this procedural regulation and the bond hearing should go forward even if the detainee has been transferred (provided, of course, that the detainee consents to waive his/her appearance at the hearing).  Interpreting the regulation in this way, advocates argue, would comport with the regulation’s language and purpose, facilitate prompt bond hearings, and improve access to counsel, including communication between attorneys and detainees.

On the other hand, DHS claims that the regulation is jurisdictional and that a bond hearing can never go forward without the person present in the assigned area of responsibility.  DHS does not argue that the detainee must be present at the bond hearing.  DHS, nor does DHS agree that a detainee can waive his or her own presence to allow the bond hearing to take place sooner.  Rather, DHS stoically asserts that a detainee must be physically located within the court’s assigned geographical area for any immigration court to exercise jurisdiction.

The Board of Immigration Appeals has an opportunity to set forth its interpretation of the regulation as, earlier this year, a North Carolina immigration judge asked the BIA to hear the issue on certification.  Briefing in the case was completed on May 27, 2010.  The National Immigration Project of the National Lawyers Guild, along with the Maxwell Street Legal Clinic and the Southern Coalition for Social Justice, filed an amici curiae brief in support of the respondent, who is represented by Jeremy McKinney.

We hope that the BIA will rule favorably on this important issue.  In the meantime, readers with a case presenting this issue are encouraged to contact Trina Realmuto at the National Immigration Project (trina@nationalimmigrationproject.org) as the Project has a practice advisory, model brief, and sample bond hearing requests available on its website and is monitoring this issue.

In Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), the Board of Immigration Appeals concluded that mandatory detention was triggered when an alien (1) is removable due to one of the triggering offenses listed at INA § 236(c)(1) and (2) the alien is “released” from any non-DHS custodial setting, whether the release is related to the triggering offense or not. To date, the BIA has had a hard time finding one federal judge that agrees with this legal conclusion. Last December, the 1^st Circuit directly rejected the BIA’s decision and agreed that Mr. Saysana was entitled to a bond hearing. Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009). However, the Board’s precedential Saysana decision continues to control in the remainder of the country’s Immigration Courts, a position the AILA Amicus Committee believes is untenable. Why? Because this particular brand of mandatory detention typically preys upon noncitizens who have long put their criminal history behind them and stand the best chance of winning relief before an Immigration Court.

A classic example of this came to the Committee’s attention recently. Luis Felipe Garcia-Arreola was convicted of a drug offense prior to 1996, which made him removable but eligible for INA § 212(c) relief. He was also not subject to mandatory detention because his release from the drug offense pre-dated the effective date of the mandatory detention statute. However, Mr. Garcia-Arreola was arrested last year for misdemeanor assault. The charge was dismissed by the State of North Carolina, but ICE used this “non-DHS custodial encounter” to make an immigration arrest and hold him pursuant to mandatory detention. AILA member Gerry Chapman represented Garcia-Arreola before the Charlotte Immigration Court. In a courageous decision, Immigration Judge Teresa Holmes-Simmons granted bond to Garcia-Arreola and distinguished Saysana. The government appealed the judge’s decision and, for a few days, attempted to enforce an automatic stay of Garcia-Arreola’s detention. The prompt filing of a habeas petition by a member of the AILA Amicus Committee resulted in ICE dropping the automatic stay. Mr. Garcia-Arreola is currently out of ICE custody but his bond appeal remains pending.

In its brief filed in late 2009, the government rehashed their standard mandatory detention arguments. However, earlier this year, in light of the First Circuit’s decision, Immigration and Customs Enforcement sent a letter to the BIA asking for the court to reconsider Matter of Saysana in the context of Mr. Garcia Arreola’s bond appeal. Due to the importance of this issue and the distinct possibility of a positive change of national mandatory detention policy, AILA’s Amicus Committee notified the BIA that an amicus brief in support of Mr. Garcia Arreola and the Immigration Judge’s decision would be filed.

Today, the AILA Amicus Committee filed a brief in support of Mr. Garcia Arreola’s bond with the Board of Immigration Appeals (BIA).

The brief outlines the Board’s losing streak in the District Court via habeas corpus filings challenging the government’s mandatory detention statutory interpretations under Matter of Saysana and culminating with the First Circuit overturning Matter of Saysana for Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island. While encouraging the Board to overturn Saysana, concomitantly AILA Amicus Committee asked the tribunal to reconsider its overall approach to mandatory detention. The Board’s on-going support for the broad interpretations of INA § 236(c), even beyond Saysana, has resulted in large numbers of additional detainees filing the nation’s detention centers, not to mention untold emotional, financial and psychological hardship and suffering imposed on both detainees and their families. The Amicus Committee urged the BIA to reconsider its heretofore strict and frequently overturned interpretations of INA § 236(c) in favor of a narrower and more tightly applied mandatory detention policy.

In short, the Amicus team is asking the BIA to follow the plain language of the law: mandatory detention applies when ICE detains a noncitizen removable for one of the INA § 236(c)(1) offenses “when released” from criminal custody. The statute (and anyone’s simple notion of justice) requires a nexus between the triggering offense and the criminal custody. It is our hope that the BIA will see the writing on the wall and do the right thing.

—Co-written by AILA Amicus Committee Members Kerry Doyle and Jeremy McKinney

There is an internal struggle in the 4th Circuit regarding the Court’s review of asylum claims. The fact that there is a struggle at all is a sign of progress as the Fourth Circuit (based in Richmond, VA) is traditionally viewed as a very conservative court.

Last summer, a divided panel of the 4^th Circuit held, in part, that the record did not compel reversal of a BIA Withholding of Removal denial – a claim involving an adult Senegalese woman who fears female genital mutilation (FGM). The majority upheld the BIA denial because the record established FGM was “rare in large urban areas” and “90% of the women who undergo FGM in Senegal are between the ages of two and five.” Gomis v. Holder, 571 F.3d 353, 360 (4^th Cir. 2009). Judge Gregory wrote a vigorous dissent, finding Gomis’ facts and fears “indistinguishable” from a Judge King-penned FGM decision, Haoua v. Gonzales, 472 F.3d 227 (4^th Cir. 2007). Judge Gregory closed his dissent as follows:

The IJ found Gomis credible, which means that her testimony regarding the practices of her specific ethnic group should have been properly considered, along with the abundance of evidence from her family that she will be circumcised upon her return. Only by reading the State Department’s report generally, and isolating Gomis’s age and urban upbringing in order to apply them blindly to the statistics presented, can one possibly conclude that Gomis is unlikely to undergo FGM. To deny her withholding of removal and send her back to Senegal, to virtually certain circumcision, would be a great miscarriage of justice. If we choose to ignore the blatant evidence before us of her specific situation by shielding our eyes with general statistics, then we will be sending her to a torturous future of which I shudder to imagine.

Id. at 364 -365. Judge Gregory felt so strongly about the potential “miscarriage of justice” that he requested en banc review. Gomis, herself, did not request rehearing or en banc review, but rather unsuccessfully sought certiorari before the U.S. Supreme Court. Judges Michael, Motz, King, Gregory, and Duncan voted to rehear this case, and Chief Judge Traxler along with Judges Wilkinson, Niemeyer, Shedd, and Agee voted to deny rehearing en banc. FIVE TO FIVE! But you need a majority for en banc review – so review was denied in another published decision released last September. Gomis v. Holder, 585 F.3d 197 (4^th Cir. 2009). Judge Gregory wrote another blistering dissent.

While Gomis herself lost, subsequent published asylum decisions reveal that the 4^th Circuit may be reexamining its self-described “deferential role” in reviewing asylum, withholding, and CAT denials. In fact, asylum seekers have been on a roll in the 4^th Circuit all fall and winter! In Baharon v. Holder, 588 F.3d 228 (4^th Cir. 2009), a panel led by Judge Gregory found the BIA’s conclusion that Baharon was not subjected to past persecution in Yemen was “clearly erroneous.” The IJ and BIA erred by reducing Baharon’s treatment to a single, three-day detention, despite crediting his testimony as credible. The panel concluded the IJ and BIA had ignored the other evidence of past persecution that was within the record. In Kourouma v. Holder, 588 F.3d 234, 241 (4th Cir.2009), another panel led by Judge Gregory concluded an adverse credibility finding was not supported by substantial evidence, and that Kourouma has established past persecution in the form of female genital mutilation. The Court concluded the IJ was hung up on Kourouma’s nationality, but the BIA found she was from Guinea. Significantly, Judge Gregory noted that the BIA should have considered how the country condition documents of record corroborated Kourouma’s testimony. Finally, in Marynenka v. Holder, 592 F.3d 594 (4^th Cir. 2010), a panel (which included Judges Michael and Gregory) concluded the IJ improperly denied a rape-based asylum claim based on lack of corroborating evidence. For example, the panel found a physician’s letter should not have been discredited solely because it was “not written on printed letterhead” and was lacking a “chain of custody.” Id. at 601. The IJ should not have found that waiting “overnight to seek medical attention after a traumatic sexual assault” implausible. “[I]f anything,” Judge Michael wrote, “it is understandable.” Finally, the panel rejected the IJ’s discrediting of an affidavit written by a person seemingly available to testify. In what later may be the most quoted sentence of the opinion, Judge Michael wrote, “There is no general rule that evidence offered in corroboration requires independent corroboration.” Id. at 602.

Clearly, these three cases reveal a less deferential Circuit Court. We shall see how asylum law continues to develop within the Fourth Circuit. A new Immigration Court opened in Charlotte, North Carolina in late 2008, which will have the effect of sending additional cases to the 4^th Circuit. And the Gomis tie will now be broken with the addition of new judges. Three days ago, the Senate unanimously confirmed Virginia Supreme Court Justice Barbara Milano Keenan to a seat. There remain four more vacancies to the Court.

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.” The brief can be found here.

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 5^th and 7^th 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 5^th and 7^th 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 5^th and 7^th 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.