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Second Drug Possession Convictions Held Not To Be Aggravated Felonies Unless First Conviction Was Admitted By Defendant Or Found By Judge Or Jury

by Norton Tooby and Joseph Justin Rollin

In Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007), the BIA found that absent controlling circuit court authority to the contrary, a noncitizen's state conviction for a second or subsequent possession will not be considered an aggravated felony on the basis of recidivism unless the noncitizen's status as a recidivist was either admitted by the noncitizen at plea or determined by a judge or jury in connection with a prosecution for the subsequent simple possession offense. The rule of Matter of Carachuri-Rosendo results in the following circuit court breakdown:

First Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Berhe v. Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006).

Second Circuit: a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. United States v. Simpson, 319 F.3d 81, 85-86 (2nd Cir. 2002).

Third Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Steel v. Blackman, 236 F.3d 130, 137-38 (3d Cir. 2001).

Fourth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007); Matter of Thomas, 24 I. & N. Dec. 414 (BIA 2007).

Fifth Circuit: a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. United States v. Sanchez-Villalobos, 412 F.3d 572, 576-577 (5th Cir. 2005).

Sixth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. United States v. Palacios-Suarez, 418 F.3d 692, 699-700 (6th Cir. 2005).

Seventh Circuit: a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. United States v. Pacheco-Diaz, 506 F.3d 545-548-549 (7th Cir. 2007).

Eighth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007); Matter of Tomas, 24 I. & N. Dec. 414 (BIA 2007).

Ninth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004).

Tenth Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007); Matter of Tomas, 24 I. & N. Dec. 414 (BIA 2007).

Eleventh Circuit: noncitizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007); Matter of Tomas, 24 I. & N. Dec. 414 (BIA 2007).

Copyright (c) 2007 by Norton Tooby. All rights reserved.


About The Author

Norton Tooby is a criminal defense attorney with offices in Oakland, California. After graduating from Harvard University in 1967, he attended Stanford Law School where he served as President of the Stanford Law Review in 1969-1970. Since 1986, he has specialized in criminal defense of non-citizens, and his career has been devoted almost entirely to criminal defense work, culminating in the successful appeal of a death penalty case before the California Supreme Court under Chief Justice Malcolm Lucas in 1988 in which all convictions were reversed and his client was set at liberty. Since that time, he has increasingly specialized in criminal representation of immigrants.

Joseph Justin Rollin B.A., University of Washington, 1997, J.D., University of Washington School of Law, 2001, worked for two years as an Attorney Advisor for the Executive Office of Immigration Review before joining the Law Offices of Norton Tooty as an Associate Attorney in 2003. He has since co-authored CRIMES OF MORAL TURPITUDE (2d ed. 2005), AGGRAVATED FELONIES (3d ed. 2006), and SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005) with Mr. Tooby.

For more information about Norton Tooby's Practice Manuals and CD's, see here. For information about upcoming seminars, see here.

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