The United States Supreme Court has just issued an immigration related decision that breaths a whisper of common sense back into the interpretation of our United States immigration laws.
In Carachuri-Rosendo v. Holder, June 14, 2010, the Court found that a second or subsequent simple possession offense may not be interpreted as an aggravated felony under §1101(a)(43) when the state conviction is not based on a prior conviction.
The Supreme Court overturned the Immigration Judge's interpretation that a second simple possession conviction constitutes an “aggravated felony” that renders an individual in-eligible for cancellation of removal.
Both the Board of Immigration Appeals and Fifth Circuit affirmed the Immigration Judge in reliance on the holding in Lopez v. Gonzales, 549 U. S. 47, 56, which states that for a conviction to be an “aggravated felony” for immigration law purposes, a state drug conviction must be punishable as a felony under federal law. Both the Board and the Fifth utilized a “hypothetical approach,” to conclude that if “conduct” could have been prosecuted as a recidivist simple possession under state law, it could have also been punished as a felony under federal law.
In rendering its decision the Supreme Court reaffirmed a previous ruling in Leocal v. Ashcroft, 543 U. S. 1, 11, n. 8, where it held that ambiguities in criminal statutes referenced in immigration laws should be construed in a non-citizen’s favor.
This is a tremendous victory for justice. Hats off to Professor Geoff Hoffman, from the University of Houston Immigration Law Clinic for the fantastic work done on this case.