Second Conviction for Simple Possession does not Mean Deportation for Legal Resident

The United States Supreme Court recently decided an important case for non-citizens, lawfully present in the United State, with multiple simple drug possession convictions. In CARACHURI-ROSENDO v. HOLDER, the Court shifted course, and held that a second conviction for simple possession is not necessarily an aggravated felony, and does not necessarily preclude immigration relief , i.e cancellation.

To best illustrate the essence of the holding, a hypothetical is helpful:

In 2003, John, who is in the U.S. legally, is convicted of a marijuana crime in the “state pretend” court. the maximum penalty he could face on the offense is 6 months in prison. Therefore, it is not an aggravated felony under federal law. the judge in state court sentences him to ten days in jail.

In 2005, John is again arrested for the same offense. In state pretend, a second offense in this instance could be enhanced, and he could be sentenced to 2 years in jail. However, state pretend prosecution does not prosecute on this basis and he pleads guilty to the 6 months version of this offense. He is sentenced to 20 days in jail.

Prior to this recent Supreme Court decision, John would have been deportable. However, the court held in CARACHURI-ROSENDO v. HOLDER, that second offense for a simple possession crime that would not ordinarily subject the defendant to a year or more of prison, does not become an aggravated felony for removal purposes, unless the state used the evidence of the prior conviction in the second case.

It is important to understand that a crime that is punishable by a year or more in prison is still considered an aggravated felony. But this new case law provides some relief to those non-citizens who have got involved in minor drug arrest where the possible punishment was less than a year, and the quantities were small.