Criminal Defense of Immigrants

Prior to the United States Supreme Court decision in Lopez v. Gonzales, [356] a complicated matrix of possibilities determined whether a state controlled substances conviction would qualify as an aggravated felony drug trafficking conviction.[357]  In light of Lopez, a state conviction must be for an offense that, if prosecuted under federal law, would be punishable as a felony.  Therefore, in the context of aggravated felony drug trafficking offenses, it no longer matters whether a state chooses to label an offense a felony or a misdemeanor, and it does not matter how the state chooses to distinguish between felonies and misdemeanors.  See § 19.58, supra.

[356] Lopez v. Gonzales, 549 U.S. ___ , 127 S.Ct. 625 (Dec. 5, 2006) (South Dakota felony conviction of aiding and abetting another to possess cocaine, in violation of S.D. Codified Laws § § 22-42-5, 22-6-1, 22-3-3, did not constitute a “felony punishable under the Controlled Substances Act,” under 18 U.S.C. § 924(c)(2), and therefore did not constitute an aggravated felony drug trafficking conviction, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of removal and disqualification from eligibility for cancellation of removal, since it was not punishable as a felony under federal law).

[357] See N. Tooby & J. Rollin, Aggravated Felonies § 3.57 (2006).