Wednesday, December 16, 2009

Carachuri-Rosendo v. Holder Supreme Court grants cert on multiple drug possession issue

On whether any second or subsequent drug possession offense must be deemed a drug trafficking aggravated felony. The case is Carachuri-Rosendo v. Holder. Granted December 14, 2009.

Docket: 09-60

The specific question presented to the Court in this case is:

Whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.

This case challenges the adverse rulings on this issue of the 5th and 7th Circuits in which these courts found that virtually any second or subsequent state possession conviction may be deemed an aggravated felony for immigration purposes, as well as for federal criminal sentence enhancement purposes.

Mr. Carachuri-Rosendo is represented pro bono by Sri Srinivasan of O’Melveny & Myers and Geoffrey A. Hoffman of the University of Houston Law Center. An amici brief in support of cert was filed in Carachuri-Rosendo v. Holder by the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, the National Association of Federal Defenders, the Immigrant Defense Project, the Immigrant Legal Resource Center, the National Immigrant Justice Center, and the National Immigration Project. The Court should hear argument and decide this issue sometime before the end of the Court’s current term in June 2010.

Initial planning is underway for amicus briefing on the merits. Please contact Manny Vargas at the Immigrant Defense Project (mvargas@immigrantdefenseproject.org, 212-725-6485) for information about planned amicus briefing.

Also, in order to prepare for amicus briefing seeking to humanize the potential impact of the Court’s ruling on this issue, the NYU Immigrant Rights Clinic is gathering cases and stories involving individuals in immigration proceedings who have two or more drug possession convictions. In particular, the clinic is interested in the stories of people who received some form of discretionary relief (particularly cancellation of removal or asylum) at the IJ level, especially if their grants of relief were reversed by the BIA because of the adverse case law in the 5th and 7th Circuits. The clinic is also seeking cases involving individuals who have not received discretionary relief but present equities that would make them strong candidates, such as people who have served in the U.S. military; people who entered the U.S. at a very young age and have lived most of their lives here; people who have strong family, community and employment ties to the U.S.; people who were convicted of minor offenses or received very light punishments; or people who successfully completed drug treatment. If you know of or are working on such a case, please email Alba Villa or Stephen Kang at alucerovilla@gmail.com and stephenbkang@gmail.com.

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