News Release ~ 6/14/2010

Minor Drug Offenses Are Not Deportable ‘Felonies’ Statement of NACDL President Cynthia Hujar Orr

Washington, DC (June 14, 2010) – A second minor drug possession offense does not constitute automatic grounds for deportation of a lawful legal resident, the U.S. Supreme Court decided unanimously today, reversing the decision of a federal appeals court. The National Association of Criminal Defense Lawyers (NACDL) wholeheartedly supports this rational and humane decision.

In an opinion by Justice John Paul Stevens, the Supreme Court held that when a defendant has been convicted of a simple possession offense that has not been enhanced by a prior conviction, he has not been “convicted” of an immigration “felony” punishable under the Controlled Substances Act rendering him automatically deportable under federal law. Justices Antonin Scalia and Clarence Thomas concurred in separate opinions.

Jose Angel Carachuri-Rosendo, a lawful permanent resident of the United States since he was five years old, faced deportation after his conviction for two drug misdemeanors in Texas. Carachuri-Rosendo pleaded guilty to possession of a small amount of marijuana in October 2004, for which he served 10 days in jail. More than a year later, he was arrested for possession of a single Xanax tablet, an anti-anxiety medication, without a prescription. He pleaded guilty to possession of the pill and served 20 days in jail. Texas’ recidivist laws generally punish second offenders more harshly than first offenders, but because Carachuri-Rosendo’s first offense was only a Class B offense, the recidivist statute did not apply to him.

Nevertheless, the federal government initiated deportation proceedings against him. An immigration judge found him eligible for deportation, but advised him that he was eligible for discretionary removal. Carachuri-Rosendo applied for cancellation of his deportation, but the Board of Immigration Appeals (BIA) found that his second offense made him automatically deportable. The U.S. Court of Appeals for the 5th Circuit upheld the BIA decision.

Deportation tears lives and families apart, and should be a consequence of last resort resulting only from the most serious of crimes. Deporting Carachuri-Rosendo, who is engaged to a U.S. citizen, has four children who are U.S. citizens, and who is lawfully and gainfully employed, would have been a serious miscarriage of justice. The decision today in his case should give hope to many other legal residents who, like other Americans, make the effort to pull their lives together after suffering the consequences of unlawful drug use.

NACDL, joined by the National Legal Aid and Defender Association, the Immigrant Defense Project, the Immigrant Legal Resource Center and the National Immigration Project of the National Lawyers Guild, filed a friend-of-the-court brief supporting Mr. Carachuri-Rosendo. The brief noted that the perfunctory processing of low-level drug possession cases – misdemeanors under federal law – should not be elevated to the level of deportable “aggravated felonies” under the Immigration and Nationalization Act. Essentially duped into believing that their cases would be disposed of with a quick guilty plea, many non-citizens, including permanent legal residents with spouses and children who are U.S. citizens, found themselves subject to deportation as a consequence of their convictions. The brief was filed pro bono on the organizations’ behalf by Jim Walden, Richard A. Bierschbach, Aaron Simowitz and Jason D. Specht of Gibson, Dunn & Crutcher LLP, New York, NY.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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