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Carachuri-Rosendo v. Holder

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The Supreme Court held that simple possession offenses are not aggravated felonies under 8 U.S.C. § 1101(a)(43)[1]. Therefore, Carachuri-Rosendo cannot be automatically ineligible for cancellation of removal. Carachuri-Rosendo v. Holder, Slip Opinion No. 09-60.



The U.S. Supreme Court ruled in a unanimous 9-0 decision thatlegal immigrants cannot be deported for minor drug possession charges. The Supreme Court held that for automatic deportation to be valid, the non-citizen must be charged with a serious or violent crime.

To that end the Supreme Court clarified the definition of an aggravated felony finding that aggregation of misdemeanors do not equal an aggravated felony for purposes of deportation under immigration law. Instead, in his opinion Justice Stevens wrote that a felony is a "serious crime usually punishable by imprisonment for more than one year or by death" and that "when a defendant has been convicted of a simple possession offense that has not been enhanced based on the fact of a prior conviction, he has not been 'convicted'...of a "felony punishable" as such "under the Controlled Substances Act."[2]


Jose Angel Carachuri-Rosendo ("Petitioner"), a lawful permanent resident of the United States, committed two misdemeanor drug offenses in Texas. The first offense was for possession of a small amount of marijuana. The second offense was for possession of one antianxiety tablet without a prescription.[3]

After the second offense, the federal government initiated removal proceedings to which petitioner disputed pursuant to the Immigration and Nationality Act. Petitioner claimed he was eligible for discretionary cancellation because he had not been convicted of an "aggravated felony" as defined in 8 U.S.C. § 1229b(a)(3).[4]

The Board of Immigration Appeals held that petitioner's second offense was an "aggravated felony" that eliminated his eligibility for cancellation of removal. The Fifth Circuit court affirmed the Board's decision by relying on the holding in Lopez v. Gonzales, 549 U.S. 47 (2006). The court concluded that petitioner's second offense could have hypothetically been prosecuted as a felony; therefore, petitioner remains disqualified for removal cancellation.[5]

Court Clarifies Definition of Aggravated Felony

The Supreme Court held that second or subsequent simple possession offenses cannot be aggravated felonies pursuant to § 1101(a)(43) when no prior felony conviction actually exists.

According to federal law, if petitioner's record of conviction includes a second or subsequent felony, then he is automatically disqualified for cancellation of removal. 8 U.S.C. § 1229b(a)(3). In this case, the petitioner's second offense was possession of one antianxiety tablet without a prescription which was prosecuted as a misdemeanor.[6]

However, since this was the petitioner's second offense, the government contended that the petitioner's recidivist possession qualified as a felony under 18 U.S.C. § 924(c). The government argued that conduct punishable as a felony should be regarded as tantamount to a felony conviction.[7]

Application of Immigration and Nationality Act

In examining the Immigration and Nationality Act, the federal Attorney General's power to cancel removal only applies to non-citizens convicted of an aggravated felony. 8 U.S.C. § 1229b(a)(3). Here, the petitioner's criminal record holds no aggravated felony conviction and the government cannot successfully assert their position without the existence of such a conviction.[8]

Although the petitioner's record exposes him to greater criminal penalty, the immigration court cannot retroactively apply those facts when they were disregarded by the state courts below. Such action undermines the mandatory notice and due process requirements set forth in federal law. 21 U.S.C. § 851. Our criminal justice system assigns state prosecutors with discretion to determine when recidivist enhancements should be applied.[9]

Lower Court Misinterpreted Lopez

Lastly, the Fifth Circuit court misinterpreted Lopez by utilizing a hypothetical approach in its analysis. This Court did not apply facts disregarded in the lower state courts in its conclusion in Lopez. This level of conjecture cannot be found in Lopez.[10]

Effects of the Law


  1. http://codes.lp.findlaw.com/uscode/8/12/I/1101
  2. http://blogs.findlaw.com/decided/2010/06/sup-ct-rules-against-deportation-for-minor-crimes.html
  3. http://www.supremecourt.gov/opinions/09pdf/09-60.pdf
  4. http://www.supremecourt.gov/opinions/09pdf/09-60.pdf
  5. http://www.supremecourt.gov/opinions/09pdf/09-60.pdf
  6. http://www.supremecourt.gov/opinions/09pdf/09-60.pdf
  7. http://www.supremecourt.gov/opinions/09pdf/09-60.pdf
  8. http://www.supremecourt.gov/opinions/09pdf/09-60.pdf
  9. http://www.supremecourt.gov/opinions/09pdf/09-60.pdf
  10. http://www.supremecourt.gov/opinions/09pdf/09-60.pdf

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