Criminal Defense of Immigrants

The aggravated felony drug trafficking definition[369] requires that a conviction be a “felony” in order to trigger removal as an aggravated felony.[370]  In Lopez v. Gonzales, the Supreme Court held that a state felony conviction for simple possession of a controlled substance cannot be considered an aggravated felony drug trafficking offense under under 8 U.S.C. § 1101(a)(43)(B).  The court reasoned that simple possession offenses do not have any element of trafficking, and most of them[371] cannot be considered felonies, under 18 U.S.C. § 924(c)(2), because they would only be misdemeanors if prosecuted in federal court.  See § § 19.57-19.59, infra.  Whether a second state conviction for simple possession will constitute a “felony”, in light of Lopez, is now going to be an issue for the courts.  See § 19.58(C), infra.

[369] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).

[370]  See N. Tooby & J. Rollin, Aggravated Felonies § 5.39 (2006).

[371]  The only exceptions are in three instances in which possession of a controlled substance would be a felony if prosecuted in federal court: (1) a possession offense in which the prosecution has charged and proven a prior final drug conviction, (2) possession of more than five grams of cocaine base, or (3) possession of any amount of flunitrazepam. 21 U.S.C. §   844.