Can legal immigrants be deported for possession of a controlled substance? A landmark Supreme Court case may give defendants a fighting chance...
If you are a non-citizen but legal immigrant to the United States and face possible deportation for a drug possession charge, you may be able to avoid this severe setback thanks to a U.S. Supreme Court decision handed down in 2010.
In the case of Carachuri-Rosendo v. Holder, the Supreme Court held that a minor drug offense is not automatic grounds for deporting a legal immigrant.
Until that decision, a legal immigrant facing a minor drug offense such as possession of small amounts of marijuana could be deported from this country, while an American citizen facing the same charge might receive a very light punishment.
Texas Case Leads to Supreme Court Decision
In fact, the landmark case involved a marijuana conviction.
At its heart was Jose Angel Carachuri-Rosendo, who'd lived in the U.S. from the age of 5 and was a lawful permanent resident of this country. However, he was convicted on two misdemeanor drug offenses while living in Texas.
First, in 2004, Carachuri-Rosendo was convicted of possessing under two ounces of marijuana, which was a class B misdemeanor. Then, in 2005, he was convicted of possessing a single tablet of Xanax, which was a class A misdemeanor.
Because of these two convictions, the federal government tried to deport the man, whose second charge was later elevated to a felony based on his prior conviction. His request to seek cancellation of such removal was denied by an immigration judge, who held that the second conviction rendered him ineligible for such cancellation.
That decision was upheld by the Board of Immigration Appeals and the Fifth Circuit Court of Appeals, after which Carachuri-Rosendo appealed to the U.S. Supreme Court, which then granted his petition.
The Supreme Court then limited situations in which a person who is subject to removal from the country can seek a discretionary review of that decision. This gave more immigrants who face deportation an opportunity to remain in the U.S. despite a criminal charge.
The law in question, which the Supreme Court clarified, was the Immigration and Nationality Act, or INA. Under that law, immigrants who have been convicted of violating federal laws pertaining to controlled substances may be deported.
In some circumstances, such persons can ask for a discretionary cancellation of such removal and can be allowed to remain in the country anyway.
Felony Convictions Can Lead to Deportation
Under the INA, an immigrant convicted of an "aggravated felony" is not eligible for such cancellation of removal. An aggravated felony includes any felony that is punishable under the Controlled Substances Act.
Having two minor convictions led to Carachuri-Rosendo having a felony charge on his record for simply possessing a drug under the CSA. Under the INA, conviction of a felony charge makes an immigrant ineligible to receive cancellation of such removal, or deportation.
But the Supreme Court reversed the Texas appellate court's decision by holding that Carachuri-Rosendo could seek cancellation of removal and possibly avoid mandatory removal, or deportation.
Keep in mind that did not guarantee that he'd be granted cancellation of removal, but it did hold that he had the right to seek such cancellation.
Basically, the Supreme Court held that a defendant must have been convicted of an actual felony crime, rather than face an elevated felony charge due to a prior misdemeanor conviction.
"We hold that when a defendant has been convicted of a simple possession offense that has not been enhanced based on the fact of a prior conviction, he has not been ‘convicted' under §1229b(a)(3) of a ‘felony punishable' as such ‘under the Controlled Substances Act,' 18 U. S. C. §924(c)(2)," the Supreme Court held in its ruling.
Again, this is no guarantee that legal immigrants will not face deportation from a drug possession charge. But this Supreme Court does give them a chance to remain in the U.S.
Legal Battles to Stay in U.S. Can Be Difficult
Even so, such persons may face a difficult fight to remain in the U.S., since they still must be granted cancellation of removal.
That is why it's vital for any legal immigrant to the U.S. to avoid being convicted of any drug possession charge for a controlled substance – such a marijuana or cocaine – in the first place.
To avoid being convicted of a drug possession charge, it's essential that you engage an experienced, knowledgeable and skilled drug possession attorney such as Houston drug defense lawyer Neal Davis.
As a leading criminal defense attorney for Houston and all of Harris County, Montgomery County and Fort Bend County, Neal Davis is prepared to fight to clients' rights in such situations.
Of course, many other crimes can make a legal immigrant, who is a non-citizen of the U.S., subject to being deported. Those include crimes such as drunk driving, assault and burglary. But for a drug possession charge, viable defenses do exist to avoid being removed from the country - such as the exclusionary rule.
Also, the fact remains that legal immigrants to this day can be deported due to minor offenses. That's why it's so important that they engage a capable drug possession lawyer or attorney to fight for their legal rights – rights enhanced by the 2010 U.S. Supreme Court case described above.
Get a Free Case Review of Your Criminal Charge
To learn more about your legal rights as a legal immigrant to the U.S. who faces a drug possession charge, contact the Neal Davis Law Firm today. You will receive a free and confidential legal review of your case.
Then, you can decide if Neal Davis is the best attorney for you. Rest assured he will fight for your legal rights to the fullest extent of the law.