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Supreme Court Rules For Thousands Deported: State Felony Drug Possession Offense That Would Be Classified As A Misdemeanor Under Federal Law Is Not An "Aggravated Felony"

by Thomas K. Ragland

On December 5, 2006, the Supreme Court in Lopez v. Gonzales[1] ruled that a simple drug possession offense that is classified as a felony under state law but a misdemeanor under federal law cannot be a felony punishable under the Controlled Substances Act (CSA) and thus is not an aggravated felony under the immigration laws. "Unless a state offense is punishable as a federal felony it does not count." Reversing the U.S. Court of Appeals for the Eighth Circuit, the Supreme Court found in Lopez's favor, dismissing an aggravated felony charge and affording him the opportunity to apply for discretionary cancellation of removal. In so doing, the Supreme Court effectively concluded that thousands of non-citizens have been deported in error and that the Government may no longer characterize certain offenses as aggravated felonies without compelling justification in the law. The procedural history and facts of the case are briefly set out below, as is the Supreme Court's holding and its implications for foreign nationals.

In September 1997, Jose Antonio Lopez, a lawful permanent resident of the United States, was convicted in South Dakota of aiding and abetting another person's possession of cocaine, a felony under the state's drug laws. He pleaded guilty and was sentenced to five years' imprisonment, but was released for good conduct after 15 months. Federal immigration authorities then placed Lopez in deportation proceedings, charging him with a controlled substance violation as well as with having committed an "aggravated felony." The latter charge has particularly harsh consequences under the immigration laws and, if sustained, renders a non-citizen ineligible for various forms of discretionary relief from deportation, including cancellation of removal and asylum. Lopez challenged the aggravated felony charge in immigration court, arguing that although his offense was a felony under South Dakota law, it would only be punishable as a misdemeanor under federal law. Thus, he maintained, the offense did not qualify under the relevant statute as "illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section 924(c) of Title 18)," where a federal "drug trafficking crime" is defined as "any felony punishable under the Controlled Substances Act ("CSA")."[2]

An immigration judge initially agreed with Lopez's argument, ruling that because the conduct proscribed under his state conviction was not a felony under the CSA, his offense did not qualify as an aggravated felony. However, after the Board of Immigration Appeals ("BIA") switched its position on the issue, the same immigration judge ruled that Lopez's simple possession crime was an aggravated felony after all, owing to its designation as a felony under state law. Finding Lopez ineligible for cancellation of removal as an aggravated felon, the immigration judge ordered him deported. The BIA affirmed, and the Eighth Circuit upheld the BIA's decision.[3] Lopez then appealed to the U.S. Supreme Court.

Writing for an 8 to 1 majority,[4] Justice David Souter found the Government's argument to be "incoherent with any common-sense conception of ‘illicit trafficking.'" Specifically, the Court rejected the Government's contention that simple drug possession's "felonious character as a state crime is enough to turn it into an aggravated felony" even though the equivalent federal offense would be punishable only as a misdemeanor. The Government had insisted that although the CSA classifies possession as a misdemeanor, the "felony element" was met for "aggravated felony purposes" in Lopez's case, because the state of South Dakota punishes simple drug possession as a felony. The Supreme Court found, to the contrary, that conduct which is classified as a felony under state law but as a misdemeanor under federal law cannot be a "felony punishable under the Controlled Substances Act." Lopez's simple drug possession offense, therefore, is not an aggravated felony under the immigration laws. "Unless a state offense is punishable as a federal felony it does not count."

The Supreme Court's near-unanimous opinion is significant for a number of reasons, not least because in the complex and somewhat esoteric realm of U.S. immigration law, the Court emphasized the importance of looking to the "everyday meaning" and "regular usage" of terms not explicitly defined by statute. Hence, the term "illicit trafficking," which "ordinarily connotes some sort of commercial dealing," cannot be unreasonably expanded to include simple possession crimes. As the Court declared, "[c]ommerce . . . was no part of Lopez's South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession." The Government's contrary position "would often turn simple possession into trafficking, just what the English language tells us not to expect." According to the Court, for such a tortured reading to prevail would require "some indication that Congress meant to define an aggravated felony of illicit trafficking in an unorthodox and unexpected way." However, no such indication is discernible in the statute: "[t]he Government's argument to the contrary contravenes normal ways of speaking and writing," which reveal that "felony punishable under the . . . Act" means felonies punishable as such or defined by the CSA, but does not refer to state felonies. In essence, the Court held that because federal law classifies virtually all simple possession offenses as misdemeanors, without reference to the quantity of drugs involved, the Government may no longer deem a state felony possession offense to be an aggravated felony unless it would also be a felony under federal law.

Accordingly, after Lopez, first-time simple drug possession offenses are no longer aggravated felonies for immigration purposes, even if classified as felonies by the state in which they were committed. The only exceptions to this rule occur where a state offense "corresponds" to the analogous federal crime – for example, possession of more than five grams of crack cocaine or possession of flunitrazepam, both of which are punishable as felonies under the CSA. In addition, a second or subsequent drug possession offense could qualify as an aggravated felony, where the particular state offense corresponds to the federal "rescidivism possession" felony.[5] To conclude otherwise, the Court observed, would make the law of alien removal and of sentencing for illegal reentry variable depending on state criminal classifications. "We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors [in the INA] if it meant courts to ignore it whenever a State chose to punish a given act more heavily."

The Supreme Court's opinion has dramatic implications for foreign nationals who have been charged with or convicted of certain crimes. Previously, a simple drug possession conviction in a jurisdiction that punishes the offense as a felony would have resulted in an aggravated felony charge, foreclosing eligibility for various forms of relief from deportation. After Lopez, however, an offender who is a lawful permanent resident might no longer be barred from such discretionary forms of relief as cancellation of removal and termination of proceedings to pursue naturalization. Moreover, an individual who fears persecution in her homeland might no longer be ineligible for asylum or withholding of removal. As a consequence of the Court's decision, in many cases reopening of removal proceedings or the introduction of new arguments on appeal will be appropriate and should be pursued.


1 No. 05-547, 549 U.S. ___ (Dec. 5, 2006).

2 See section 101(a)(43)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(B); Controlled Substances Act, 21 U.S.C. § 801 et seq.

3 Lopez v. Gonzales, 417 F.3d 934 (8th Cir. 2005).

4 Justice Clarence Thomas was the sole dissenter.

5 See 21 U.S.C. § 844(a).

© 2007 Maggio & Kattar, P.C.

About The Author

Thomas Ragland is a Senior Attorney with Maggio & Kattar, P.C. He is an experienced immigration litigator, having successfully represented individuals in all aspects of immigration law before the immigration courts and the Board of Immigration Appeals, as well as in the federal district and circuit courts of appeals. He specializes in the immigration consequences of criminal convictions, waivers of inadmissibility, asylum, adjustment of status and naturalization, detention and bond issues, and deportation defense.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.