Supreme Court Offers Reprieve For Some Immigrants With Drug Convictions

Even minor drug offenses can result in serious penalties, but this is particularly true for non-citizen immigrants in the United States. Whereas a simple charge for possession of marijuana might result in a small fine for a citizen, this same charge may leave a non-citizen just a few steps away from deportation.

However, the U.S. Supreme Court recently offered immigrants a reprieve in limited situations.

In Carachuri-Rosendo v. Holder, the Supreme Court clarified the scope a law that sits squarely at the intersection of drug laws and immigration laws. The Court limited the situations where an individual who is subject to removal from the country cannot seek a discretionary review of this decision, thereby giving more immigrants facing deportation the chance to stay in the United States.

The Law Governing Immigrants And Drug Offenses

Under the Immigration and Nationality Act (INA), immigrants convicted of violating federal laws relating to controlled substances may be removed from the country. In some circumstances these individuals may request discretionary cancellation of removal, or the ability to remain in the United States; if granted, the individual is allowed to stay in the country.

However, under the INA, an immigrant who has been convicted of an “aggravated felony” is not eligible for cancellation of removal. Among other things, the term “aggravated felony” incorporates any felony punishable under the Controlled Substances Act (CSA).

Generally, someone who is arrested for simple possession of a small quantity of drugs will be charged with a misdemeanor under the CSA, not a felony. However, if someone has previously been convicted of possession of a controlled substance, a prosecutor may seek a recidivist enhancement, resulting in elevated charges for a repeat offender. In this case, mere possession of drugs can result in felony charges. If convicted of such charges, an immigrant is not eligible to seek cancellation of removal.

The law is well-established on this point. However, until recently, the Supreme Court had not addressed whether an immigrant is eligible for cancellation of removal if an immigrant’s second conviction was not based on the fact a prior conviction. Is recidivist possession always a felony for immigration purposes? This was the issue before the Court in Carachuri-Rosendo v. Holder.

The Case Of Jose Angel Carachuri-rosendo

Jose Angel Carachuri-Rosendo, a lawful permanent resident of the United States, has lived here since he was five years old. He has been convicted of two misdemeanor drug offenses in Texas. In 2004, he was convicted of possessing less than two ounces of marijuana, a Class B misdemeanor; in 2005, he was convicted of a Class A misdemeanor for possession of a single tablet of Xanax.

Under Texas law, the prosecutor in the second case could have sought a sentencing enhancement based on Carachuri-Rosendo’s first conviction. Notably, the prosecutor did not seek this enhancement.

Based solely on these misdemeanor convictions, the federal government sought his removal.

Although the immigration judge allowed Carachuri-Rosendo to seek cancellation of removal, his request was ultimately denied. The immigration judge held that Carachuri-Rosendo’s second simple possession conviction constituted an aggravated felony that made him ineligible for cancellation.

The Board of Immigration Appeals affirmed the decision, as did the Fifth Circuit Court of Appeals. Carachuri-Rosendo appealed to the Supreme Court, which granted his petition.

The Supreme Court’s Decision

The Supreme Court reversed the decision of the Appellate Court, holding that Carachuri-Rosendo may seek cancellation of removal and thereby potentially avoid the harsh consequence of mandatory removal. This is not to say that he will necessarily be granted this relief, but only that he is not automatically denied the ability to seek it.

As the Court explained, “[for] a state offense to qualify as an “aggravated felony,” so as to preclude cancellation of removal, the defendant must have been actually convicted of a crime that is itself punishable as a felony under federal law.” It is not enough that the defendant’s conduct coupled with facts outside of the record (such as his first conviction) could have authorized a federal felony conviction. The defendant must have actually been convicted of a crime that is punishable as a felony under federal law.

In this case, the prosecutor did not choose to charge Carachuri-Rosendo as a recidivist in the second case; the second conviction was in no way based on his initial conviction – therefore not an “aggravated felony.” The fact that he could have been prosecuted as a felon in federal court because of his first possession offense is not relevant.


The Court’s decision expands the opportunities for some non-citizens convicted of drug crimes to stay in the United States. However, even with this chance, many convicted of drug offenses will find a significant immigration battle ahead. The most effective way to avoid deportation based on a conviction related to controlled substances is to avoid the conviction entirely.

For anyone accused of any drug crimes, it is important to speak to a criminal defense attorney as soon as possible. A knowledgeable lawyer can help to protect the rights and interests of those facing criminal charges.

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