The Courts

Immigrant Cannot be Denied Discretionary Relief Based on Hypothetical Felony

June 28, 2010

On June 14, 2010, the Supreme Court unanimously held that a lawful permanent resident convicted of a second simple possession offense under the Controlled Substances Act, is not guilty of an “aggravated felony” for deportation purposes, under the Immigration and Naturalization Act (INA), because prosecutors did not seek a felony enhancement during his subsequent simple possession offense. The government may still deport Mr. Carachuri-Rosendo, who has spent his entire adult life in the United States, and whose wife and four children are US citizens. But the Court’s ruling in Carachuri-Rosendo v. Holder does ensure Mr. Carachuri-Rosendo the right to petition for discretionary relief, so that he may at least request to stay in the country ...

Immigration-Related Cases: March 2010 Update

April 06, 2010

Recent Supreme Court Decisions Padilla v. Kentucky, 558 U.S. __ 2010 On March 31, the Supreme Court held in Padilla v. Kentucky that defendants considering a plea agreement have a Sixth Amendment right to accurate advice on how their plea might affect their immigration status.  In 2001, Mr. Padilla, a U.S. permanent resident, pled guilty to a marijuana trafficking offense upon advice from his attorney that the plea would not affect his immigration status.  The offense, in fact, is designated an “aggravated felony” under the Immigration and Nationality Act, resulting in mandatory deportation.  When Mr. Padilla appealed for post-conviction relief, the Kentucky Supreme Court ruled that the Sixth Amendment’s guarantee of effective assistance ...

Rodi Alvarado Finally Granted Asylum in U.S.

December 23, 2009

Last week, following 14 years of litigation up and down the immigration courts, Rodi Alvarado was granted asylum in the United States.  Ms. Alvarado fled brutal domestic violence in Guatemala and came to California seeking asylum 14 years ago.  An immigration judge initially granted her claim, but the INS appealed, the Board of Immigration Appeals reversed the decision, and she was ordered deported in 1999.  However, in 2001, then-Attorney General Janet Reno overturned the BIA’s decision, in light of proposed Department of Justice regulations on the subject of gender-based asylum, and remanded Ms. Alvarado’s case to the BIA.  While the case was still dragging along, the newly-created Department of Homeland Security supported Ms. Alvarado’s ...

Supreme Cour to Hear “Aggravated Felony” Case

December 23, 2009

On December 13, the Supreme Court granted certiorari to hear Carachuri-Rosendo v. Holder, a case questioning whether a second conviction for drug possession under state law amounts to an “aggravated felony” under immigration law.  Mr. Carachuri-Rosendo entered the U.S. with his family as a child, and has been a legal resident since 1993.  In 2004, he pleaded guilty to a misdemeanor for simple possession of marijuana.  A year later, he pleaded no contest to misdemeanor possession of Xanax without a prescription.  In the second case, Carachuri-Rosendo could have been prosecuted under federal law for the felony of recidivist possession.  However, this charge was not brought, resulting in no finding of the prior conviction of simple possession ...

Supreme Court Update: Immigration Cases in the 2009-2010 Term

November 08, 2009

Petition for Certiorari Granted   Padilla v. Kentucky, 2009 WL 2832123 (2009) The Supreme Court heard oral arguments, on October 13, 2009, in Padilla v. Kentucky, its first immigration case considered this term.  Mr. Padilla, a legal permanent resident who served in the U.S. Army and has lived in the U.S. for nearly 40 years, pled guilty to a marijuana trafficking offense upon advice from his attorney that the plea would not affect his immigration status.  The offense, in fact, is designated an “aggravated felony” under the Immigration and Nationality Act, requiring mandatory deportation.  The Court will determine whether mandatory deportation stemming from a guilty plea to an “aggravated felony” is a collateral consequence (beyond the ...

Immigration in the Supreme Court - Oct. 2008 through June 2009

August 04, 2009

Last term, the Supreme Court decided five cases, and refused to hear another, that will have a substantial impact on the U.S. immigration system.  The Court rarely takes on such a relatively high number of immigration-related cases.  The results were a mixed bag for the government, which lost three cases and was successful in only two.  Immigration-related issues resolved by the Court last term include: what a prosecutor must prove in aggravated identify theft cases, the extent of the persecutor bar to asylum, the power of the government to clear land for border fencing, what factors govern a court’s ability to grant a stay of removal, the ability of an immigration judge to look into the underlying facts of a prior conviction, and whether ...

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