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May 17, 2007
Supreme Court Rules: Not All Felonies are Aggravated Felonies
- Atty. Robert Reeves Email this article

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 person’s 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 § 101(a)(43)(B). Mr. Lopez disagreed with the Government’s 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. § 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 noncitizen is convicted of an aggravated felony they are subject to removal with little or no opportunity for relief. Moreover, noncitizens that are charged with an aggravated felony are also subject to mandatory detention without bond.


The INA makes a noncitizen 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. However, the Supreme Court read the statute in context and disagreed. Rather than look to the different treatments given by States, the Supreme Court “naturally” looked to the crimes that are punishable as felonies under the Act.   


In his opinion, Justice Souter notes Humpty Dumpty “used a word to mean ‘just what [he chose] it to mean – neither more nor less.’”  This reference is appropriated given that all the King’s Horses and all the King’s men were not able to help Humpty Dumpty after his fall. Because a noncitizen faces extremely harsh immigration consequences if he suffers an aggravated felony, the best approach is to avoid the fall altogether.


Remember, the Supreme Court’s decision does not mean automatic relief for noncitizens convicted of drug crimes. Indeed, the Government may still try to argue that a drug conviction qualifies as an aggravated felony because it involved a trafficking element. Rather, this case provides an opportunity for a noncitizen to establish that his state drug felony is not an aggravated felony for immigration purposes and therefore permits permanent residents to seek relief from removal. The consequences of a criminal conviction can be severe, making it all the more important to seek an experienced and trusted attorney.



Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.


Atty. Reeves has represented clients in numerous landmark immigration cases that have set new policies regarding INS action and immigrants' rights. His many successes have been published in Interpreter Releases, Immigration Briefings and AILA Monthly which are nationally recognized immigration periodicals widely read by immigration lawyers, State Department and immigration officials. His cases are also cited in test books as a guide to other immigration practitioners.


His offices are located in Pasadena, San Francisco, Beijing and Makati City.

Telephone: 759-6777



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