Wednesday, December 06, 2006

State Felony Conviction for Simple Drug Possession Is Not an "Aggravated Felony" within Meaning of the Immigration and Nationality Act

The Supreme Court ruled yesterday in Lopez v. Gonzales that a state felony conviction for simple drug possession does not qualify as an "aggravated felony" for purposes of the Immigration and Nationality Act. And although the Court had granted cert. in a companion case involving the same interpretive question but in the Sentencing Guidelines context, the Court dismissed that criminal case in a one-sentence order stating that the "writ of certiorari is dismissed as improvidently granted."

This outcome yields some uncertainty for those who practice in the Second Circuit, because this Circuit has divergent holdings on this issue depending on whether it arises in the immigration context or the Guidelines context. Thus, on the one hand, the Circuit ruled in Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996), that a state possession felony is not an aggravated felony in the immigration context. On the other hand, the Circuit ruled in United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), that a state possession felony is an aggravated felony in the Guidelines context. Thus, Lopez could be read very narrowly as simply affirming Aguirre, and saying nothing about Pornes-Garcia -- a very bad result for defendants in this Circuit.

There are, however, very strong arguments to be made that (1) Lopez applies to the Guidelines context as well (see especially Op. at 2 and 10, which seems to equate the two contexts), and that (2) the Circuit's divergent reading of "aggravated felony" in the two contexts is itself wrong (see footnote 8 of the Supreme Court's Leocal decision, stating that statutory language must be interpreted "consistently, whether we encounter its application in a criminal or noncriminal context"), and thus that Lopez requires a ruling that a state possession felony is not an "aggravated felony" in either context. Indeed, we do not yet know what the Government's position on this is -- DOJ may well concede that the same term should be read the same way in either context.

Our colleague Steve Sady of the Oregon FPD has already come up with some strong arguments for extending Lopez to the Guidelines context. (Luckily for us, the 9th Circuit had the same two-faced reading of "aggravated felony" as the 2d Circuit, pre-Lopez). Click here for his discussion.

In any event, everyone should be on the lookout for this issue, and object to any attempt to follow Pornes-Garcia after Lopez.


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