Immigrant Cannot be Denied Discretionary Relief Based on Hypothetical Felony

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 that has been his lawful home for more than thirty years.

Simple possession is a misdemeanor under the Controlled Substances Act. However, section 924(c)(2) of the Act allows the government to charge any subsequent possession offense as a felony, which can entail a two year prison sentence upon conviction, and may constitute an “aggravated felony” under the INA, a category carrying the harshest deportation consequences and prohibiting petitions for discretionary relief. Mr. Carachuri-Rosendo was previously convicted for misdemeanor possession of less than two ounces of marijuana, and again for misdemeanor possession of a single pill of Xanax without a prescription. In seeking to deport him to Mexico, a country he left with his parents at the age of five, the government argued that he is ineligible to submit a petition for discretionary relief, because although his possessing a pill of Xanax was a misdemeanor, it could have been charged as a felony in federal court, and therefore constitutes an “aggravated felony” for deportation purposes, under the INA.

Not a single Supreme Court Justice agreed with the government’s interpretation. Justice Stevens, writing for the majority (Justices Scalia and Thomas concurred in the judgment), urged particular caution in evaluating the government’s position because mere possession of a Xanax tablet does not accord with the commonplace notion of an “aggravated felony.” Justice Stevens noted that a revocation of Mr. Carachuri-Rosendo’s right to petition for discretionary relief for a misdemeanor offense, based only on the hypothetical possibility of a felony charge, violates the plain text of the INA, evades substantial procedural protections integral to the Controlled Substances Act, misconstrues important Supreme Court precedent, and ignores common practice in federal courts.