Immigration Solutions; Supreme Court Rules: Not All Felonies Are Aggravated Felonies

Article excerpt

Byline: Robert Reeves

This week the United States Supreme Court in Lopez v. Gonzales held that not all felony drug convictions are aggravated felonies for immigration purposes. The case involved Mr. Lopez, a long time lawful permanent resident who had suffered a state drug felony conviction for aiding and abetting another persons drug possession. After his conviction, the Government deported Mr. Lopez after finding him ineligible for cancellation of removal because the Government considered his drug conviction an aggravated felony under INA As. 101(a)(43)(B). Mr. Lopez disagreed with the Governments position and took his case all the way to the Supreme Court, winning an 8-1 decision in his favor.

Before addressing the substantive arguments, the Supreme Court noted the different treatment non-citizens received by the different Courts of Appeal around the country and felt that the Supreme Court should settled the issue once and for all. Writing for the eight Justice majority, Justice Souter got right to the point -- _[t]he question raised is whether conduct made a felony under state law but a misdemeanor under the Controlled Substance Act is a "felony punishable under the Controlled Substance Act. 18 U.S.C. As. 924(c)(2). We hold it is not."

For Mr. Lopez, the outcome meant that his state felony drug conviction was not an aggravated felony, and therefore he was eligible for cancellation of removal. However, the impact of this case reaches far beyond Mr. Lopez conviction. If a non-citizen is convicted of an aggravated felony they are subject to removal with little or no opportunity for relief. Moreover, non-citizens that are charged with an aggravated felony are also subject to mandatory detention without bond.

The INA makes a non-citizen guilty of an aggravated felony if he has been convicted of "a drug trafficking crime" as defined as "any felony punishable under the Controlled Substance Act." However, the federal Controlled Substance Act punishes possession of a drug as a misdemeanor "not a felony." The Government took an expansive reading of this statute and argued that a state felony (even for possession) qualifies as an aggravated felony. …