IDP has been challenging in multiple courts and before the Board of Immigration Appeals the government’s overbroad interpretations of what constitutes a “drug trafficking crime” aggravated felony. On April 3, 2006, the Supreme Court issued orders granting certiorari in two cases challenging federal circuit court holdings that the "illicit drug trafficking" aggravated felony category includes simple possession offenses. One case arose out of the 8th Circuit in the immigration removal proceedings context. Lopez v. Gonzales (Docket No. 05-547). The other case arose out of the Fifth Circuit in the criminal illegal reentry aggravated felony sentence enhancement context. Toledo-Flores v. U.S. (Docket No. 05-7664). The NYSDA Immigrant Defense Project, along with the National Immigration Project, coordinated amicus briefing and other advocacy to limit this broad interpretation of the aggravated felony mandatory detention and deportation ground. (See below Briefs Submitted to the Supreme Court in Lopez v. Gonzales and Toledo-Flores v. U.S.). On December 5, 2006, in an 8-1 decision, the U.S. Supreme Court ruled that the federal government has been misapplying the mandatory deportation “drug trafficking” aggravated felony label to simple possession offenses that would be misdemeanors under federal law. See Lopez v. Gonzales, 127 S.Ct. 625 (2006).
Since the Supreme Court 2006 decision in Lopez v. Gonzales, IDP has supported and continues to support litigation to further limit the federal government’s application of the “drug trafficking” aggravated felony mandatory deportation ground to non-trafficking offenses. (See below Recently filed briefs in other cases). For example, even after the Supreme Court’s 2006 decision, in which the Supreme Court rejected government labeling of first-time drug possession offenses as “drug trafficking” aggravated felonies mandating deportation, the government has continued to argue that second or subsequent simple possession offenses, no matter how minor or how long ago, may be deemed aggravated felonies. IDP has supported and coordinated litigation efforts to challenge these continued broad interpretations of the drug trafficking aggravated felony mandatory deportation ground. So far, there have been the following positive developments as a result of the coordinated litigation efforts on this issue:
- In December 2007, the Board of Immigration Appeals ruled favorably on this issue in Matter of Carachuri-Rosendo, in which the Board found that an immigrant’s state simple possession conviction should not be considered an aggravated felony on the basis of recidivism unless the individual was actually prosecuted and convicted as a recidivist, as required for felony treatment under federal law. However, despite the Board’s favorable decision on this issue, the Board ruled that Immigration Judges must follow the law of the federal circuit in those jurisdictions where the federal circuit court had previously ruled unfavorably on the issue. Thus, subsequent to this decision, the Department of Homeland Security continued to argue that simple possession offenses could be deemed “drug trafficking” aggravated felonies in removal proceedings under the jurisdictions of the U.S. Courts of Appeals for the Second, Fifth, Sixth, and Seventh Circuits.
- In June 2008, the U.S. Court of Appeals for the Sixth Circuit rejected the DHS position in Rashid v. Mukasey
- In November 2008, the U.S. Court of Appeals for the Second Circuit rejected the DHS position in Alsol. v. Mukasey/Powell v. Mukasey.
As a result of these favorable litigation developments, immigrants with only simple possession offenses are now precluded from being able to seek discretionary relief from deportation based on being labeled as “drug trafficking” aggravated felons only in those removal proceedings which take place in the 6 states covered by the Fifth and Seventh Circuits -- Illinois, Indiana, Louisiana, Mississippi, Texas and Wisconsin. Those whose removal proceedings take place in the other 44 states are not automatically deemed aggravated felons and may seek discretionary relief from deportation based on any favorable factors in their cases, such as long residence in the U.S., dependent U.S. citizen family members, service in the U.S. military, etc.
_____________Briefs Submitted to the Supreme Court in Lopez v. Gonzales and Toledo-Flores v. US:
Opening Brief for Petitioner Jose Antonio Lopez (247K PDF)
Opening Brief for Petitioner Reymundo Toledo-Flores (237K PDF)
Amicus Brief of American Bar Association (189K PDF)
Amicus Brief of Former General Counsels of INS (119K PDF)
Amicus Brief of Human Rights First (1.15MB PDF)
Amicus Brief of National Association of Federal Defenders and Families Against Mandatory Minimums (180K PDF)
Amicus Brief about Community Impact (submitted by 24 organizations) (219K PDF)
______________Recently filed briefs in other cases:
Amicus Brief: Fernandez v. Mukasey (Nov. 2008) (954K PDF)
7th Circuit: In this case, IDP filed an amicus brief in support of a petition for rehearing of the divided panel decision issued on September 15th in this case. The brief points out that the majority opinion concludes that immigration courts may treat certain state simple drug possession convictions as illicit trafficking aggravated felonies even when identical possession convictions under federal law could not be so treated and urges rehearing since the decision has far-reaching ramifications and creates disuniformity within the case law of the Seventh Circuit and nationwide.
Amicus Brief: Alsol v. Mukasey (June 2008) (79K PDF)
2nd Circuit: In this case, IDP filed an amicus brief arguing that under the holding and analysis of the December 2006 U.S. Supreme Court decision in Lopez v. Gonzales, a second New York State misdemeanor drug possession offense should not be deemed a drug trafficking crime aggravated felony.
Amicus Brief: Carachuri-Rosendo v. Gonzales (June 2008) (2M PDF)
5th Circuit: In this case, IDP filed an amicus brief arguing that under the holding and analysis of the December 2006 U.S. Supreme Court decision in Lopez v. Gonzales, a second Texas state drug possession offense should not be deemed a drug trafficking crime aggravated felony.
Amicus Brief: Powell v. Gonzales (May 2008) (8K PDF)
2nd Circuit: In this case, IDP filed an amicus brief arguing that, under the holding and analysis of the December 2006 U.S. Supreme Court decision in Lopez v. Gonzales, a second New York State misdemeanor drug possession offense should not be deemed a “drug trafficking crime” aggravated felony.
Amicus Brief: Martinez v. Gonzales (December 2007) (87K PDF)
2nd Circuit: In this case, IDP filed an amicus brief arguing that a New York State marihuana sale misdemeanor offense that covers transfers of a small amount of marihuana for no remuneration should not automatically be deemed a “drug trafficking crime” aggravated felony.
Amicus Brief: Lopiccolo v. Gonzales (July 2007) (80K PDF)
4th Circuit: In this case, IDP filed an amicus brief arguing that, under the holding and analysis of the December 2006 U.S. Supreme Court decision in Lopez v. Gonzales, a second Virginia state drug possession offense should not be deemed a “drug trafficking crime” aggravated felony.
Amicus Brief for the Board of Immigration Appeals (July 2007) (945K PDF)
BIA: IDP filed this amicus curiae brief in a case scheduled for oral argument before the Board of Immigration Appeals on July 12, 2007 arguing that under the holding and analysis of the December 2006 U.S. Supreme Court decision in Lopez v. Gonzales, a second Texas state drug possession misdemeanor should not be deemed a “drug trafficking crime” aggravated felony.
Amicus Brief: Rashid v. Gonzales (June 2007) (1 MB PDF)
6th Circuit: In this case, IDP and the Criminal Defense Attorneys of Michigan filed an amicus brief arguing that, under the holding and analysis of the December 2006 U.S. Supreme Court decision in Lopez v. Gonzales, a second Michigan state drug possession offense should not be deemed a “drug trafficking crime” aggravated felony.
Amicus Brief for the Board of Immigration Appeals: In re Yanez-Garcia (May 2007) (557K PDF)
BIA: IDP filed this amicus curiae brief for the Board of Immigration Appeals arguing that under the holding and analysis of the December 2006 U.S. Supreme Court decision in Lopez v. Gonzales, a second or subsequent state drug possession or other nontrafficking offense should not be deemed a “drug trafficking crime” aggravated felony.
Amicus Brief: Bharti v. Gonzales (March 2007) (129K PDF)
5th Circuit: In this case, IDP and the National Association of Criminal Defense Lawyers filed an amici brief arguing that, under the holding and analysis of the December 2006 U.S. Supreme Court decision in Lopez v. Gonzales , a second or subsequent state drug possession or other nontrafficking offense should not be deemed a “drug trafficking crime” aggravated felony.
Amicus Brief for the Board of Immigration Appeals (March 2007)
BIA: IDP filed this amicus curiae brief for the Board of Immigration Appeals arguing that, under the holding and analysis of the December 2006 U.S. Supreme Court decision in Lopez v. Gonzales , a second or subsequent state drug possession or other nontrafficking offense should not be deemed a “drug trafficking crime” aggravated felony.
Amicus Brief: Rodrigues v. U.S. Attorney General (February 2007)
11th Circuit: In this case, the Florida Immigrant Advocacy Center and the National Immigration Project of the National Lawyers Guild, along with the IDP, filed an amici letter brief addressing the impact of the December 2006 U.S. Supreme Court decision in Lopez v. Gonzales on the case law of the 11th Circuit.
Amicus Brief: Martinez v. Ridge (January 2007)
2nd Circuit: In this case, IDP filed a supplemental amicus letter brief arguing that, under the holding and analysis of the December 2006 U.S. Supreme Court decision in Lopez v. Gonzales , a second or subsequent state drug possession or other nontrafficking offense should not be deemed a “drug trafficking crime” aggravated felony.
Amicus Brief: Lopez v. Gonzales (January 2006)
U.S.Supreme Court: IDP submitted the amicus brief in support of cert. grant in this case, which raises the issue of whether a South Dakota felony conviction for aiding and abetting simple possession of cocaine may be deemed a “drug trafficking crime” aggravated felony, even if that offense is punishable only as a misdemeanor under federal law. IDP recruited additional amici on the brief: the National Association of Criminal Defense Lawyers, the National Legal Aid & Defender Association, the National Association of Federal Defenders, the Capital Area Immigrant Rights Coalition (CAIR), and Immigrant Legal Resource Center (ILRC).
Amicus Brief: U.S. v. Sanchez-Villalolobos (November 2005)
U.S.Supreme Court: IDP, with Capital Area Immigrant Rights and Immigrant Legal Resource Center, submitted the brief of amici in support of cert. grant in this case, which raised the issue of whether a state misdemeanor drug possession offense may be deemed a “drug trafficking crime” aggravated felony. Amici were represented by Nancy Morawetz, Rose Kahn and Hannah Roman of the New York University Law School’s Immigrant Rights Clinic.
Amicus Brief: Henry v. Gonzales (December 2005)
1st Circuit: IDP, together with Massachusetts’ Committee for Public Counsel Services and the National Immigration Project, filed an amicus brief in the case of Henry v. Gonzales. This brief addresses the issue of whether Massachusetts misdemeanor drug offenses that cover non-trafficking conduct may be deemed “drug trafficking crime” aggravated felonies.
Amicus Brief: Martinez v. Ridge (October 2005)
2nd Circuit: In this case, IDP filed an amicus brief submitting that a New York State misdemeanor marihuana offense, criminal sale of marihuana in the fourth degree, that involves the mere giving or offering of a small amount of marihuana to another for no remuneration, may not be deemed a “drug trafficking crime” aggravated felony.
Analysis of New York State Division of Criminal Justice Services Misdemeanor Drug Offense Statistics for the Years 1995 Through 2004 (IDP 2005) (8K PDF) and New York State Conviction Sentences and Lengths Data – 1995 Through 2004 (DCJS 2005) (40K PDF)
Amicus Brief: In re Grant (June 2005)
Board of Immigration Appeals: IDP filed an amicus submitting that a New York State misdemeanor marihuana offense, criminal sale of marihuana in the fourth degree, that involves the mere giving or offering of a small amount of marihuana to another for no remuneration, may not be deemed a “drug trafficking crime” aggravated felony.
