Second or subsequent simple possession offenses are not aggravated felonies under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction

In Carachuri-Rosendo v. Holder (09-60), the Court reverses, in an opinion by Justice Stevens.  The vote is unanimous, though Justices Scalia and Thomas each file opinions concurring in the judgment only.

Issue: 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. http://www.supremecourt.gov/opinions/09pdf/09-60.pdf

Petitioner, a lawful permanent resident of the United States, faced deportation after committing two misdemeanor drug offenses in Texas.For the first, possession of a small amount of marijuana, he received 20 days in jail. For the second, possession without a prescription of one antianxiety tablet, he received 10 days. Texas law, like federal law, authorized a sentencing enhancement if the State proved that petitioner had been previously convicted of a similar offense, but Texas did not seek such an enhancement here. After the second conviction, the Federal Government initiated removal proceedings. Petitioner conceded that he was removable, but claimed that he was eligible for discretionary cancellation of removal under the Immigration and Nationality Act (INA) because he had not been convicted of any “aggravated felony,” 8 U. S. C. §1229b(a)(3). Section 1101(a)(43)(B) defines that term to include, inter alia, “illicit trafficking in a controlled substance . . . including a drug trafficking crime” as defined in18 U. S. C. §924(c), which, in turn, defines a “drug trafficking crime” as a “felony punishable under,” inter alia, “the Controlled Substances Act (21 U. S. C. 801 et seq.).” A felony is a crime for which the“maximum term of imprisonment authorized” is “more than one year.” §3559(a). Simple possession offenses are ordinarily misdemeanors punishable with shorter sentences, but a conviction “after a prior conviction under this subchapter [or] the law of any State . . . has become final”—a “recidivist” simple possession offense—is “punishable” as a “felony” under §924(c)(2) and subject to a 2-year sentence. Only this “recidivist” simple possession category might be an“aggravated felony” under 8 U. S. C. §1101(a)(43). A prosecutor must charge the existence of the prior conviction. See 21 U. S. C. §851(a)(1). Notice and an opportunity to challenge its validity, §§851(b)–(c), are mandatory prerequisites to obtaining a punishment based on the fact of the prior conviction and necessary prerequisites to “authorize” a felony punishment, 18 U. S. C. §3559(a), for the simple possession offense at issue. Here, the Immigration Judge held that petitioner’s second simple possession conviction was an “aggravated felony” that made him ineligible for cancellation of removal. The Board of Immigration Appeals and Fifth Circuit affirmed. Relying on the holding in Lopez v. Gonzales, 549 U. S. 47, 56—that to be an “aggravated felony” for immigration law purposes, a state drug conviction must be punishable as a felony under federal law—the court used a “hypothetical approach,” concluding that because petitioner’s “conduct” could have been prosecuted as a recidivist simple possession under state law, it could have also been punished as a felony under federal law.

A court of appeals also may set aside a decision in which the BIA has abused its discretion in applying the law to the facts-7th Cir

Kucana v. Holder, No. 07-1002
"The Supreme Court remanded this proceeding to the 7th Circuit for decision on the merits after holding that 8 U.S.C. §1252(a)(2)(B) does not affect judicial review of situations in which immigration officials’ discretion is specified by regulation rather than statute. Kucana v. Holder, 130 S. Ct. 827 (2010). Our original opinion, 533 F.3d 534 (7th Cir. 2008), had held that No. 07-1002 a decision by the Board of Immigration Appeals declining to reopen a removal proceeding may be reviewed only to determine whether the Board misunderstood a regulation, a statute, or the Constitution. 8 U.S.C. §1252(a)(2)(D).  The Justices concluded that a court of appeals also may set aside a decision in which the Board has abused its discretion in applying the law to the facts.

Agron Kucana contends that the Board abused its discretion in two ways: by not discussing an affidavit submitted in support of the motion to reopen, and by disregarding his eligibility for adjustment of status. Our 2008 opinion understood the second of these arguments to be a legal one and rejected it as forfeited: Kucana did not make such an argument to the Board, which is not required to consider possibilities never presented for decision. 533 F.3d at 538–39. It is unnecessary for us to revisit that subject. The only remaining question concerns the Board’s decision not to mention the affidavit."

On remand from the Supreme Court for a ruling on the merits after its holding that 8 U.S.C. section 1252(a)(2)(B) does not affect judicial review of situations in which immigration officials' discretion is specified by regulation rather than statute, and that a court of appeals also may set aside a decision in which the Board has abused its discretion in applying the law to the facts, Albanian citizen's petition for review of the BIA's refusal to reopen removal proceedings is denied as the Board's conclusion that the evidence did not show a material adverse change in country conditions between 2002 and 2006 did not constitute an abuse of discretion.

Law professor Amanda Leiter (Catholic) argued as amicus against judicial review because Solicitor General Elena Kagen agreed with the petitioner on the availability of judicial review of the denial of a motion to reopen.

Having overslept, Kucana, a citizen of Albania, missed a hearing on his asylum and withholding of removal claims. He sought a motion to reopen the proceedings, which the immigration court and BIA denied. The Seventh Circuit dismissed the petition for review for lack of jurisdiction, a holding in conflict with six other circuits. The Suoereme Court granted certiorari to resolve the conflict.

Justice Ruth Bader Ginsburg wrote the opinion for the Court. Justice Samuel Alito concurred in the judgment. The Court ruled that the applicable provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 by its terms only barred the review of the discretionary judgments by the Attorney General, not the discretionary determinations delegated by the Attorney General to the Board of Immigration Appeals. Thus, the Court held that courts of appeals have the authority to review denials of motions to reopen by the BIA.

The Court expressed the view that a motion to reopen is an "'important safeguard'" (citing Dada v. Mukasey, 554 U.S. 1 (2008). This is a very different approach to motions to reopen than seen in years past, with the Court (INS v. Wang (1981) and INS v. Abudu (1988)) emphasizing the need for the courts to defer to the judgment of the BIA on motions to reopen. In the Court's estimation, the language of the statute, the history of the statute and regulations, and the presumption favoring judicial review of administrative action, all militated in favor of judicial review of the denial of a motion to reopen.

Padilla v. Kentucky and the Immigration Consequences of Crimes

On March 31, 2010, in a landmark decision called Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment requires criminal defense counsel to advise a noncitizen defendant regarding the immigration consequences of a guilty plea, and that absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.

On Immigration Advocates Network:

The "Immigration and Crimes" library contains:
- "National Practice Advisory: Duty of Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky," by the Immigrant Defense Project on behalf of the Defending Immigrants Partnership at http://www.immigrationadvocates.org/link.cfm?14988
(login required). This national practice advisory provides a summary and key points of the Padilla decision for criminal defense lawyers, a brief review of select defense lawyer professional standards cited by the court, an immigration consequences of crimes checklist, and a summary of resources available to criminal defense lawyers nationally.
- "Immigration Consequences of Criminal Convictions Checklist" at http://www.immigrationadvocates.org/link.cfm?14989
(login required). This is a one page reference sheet that provides an overview of the immigration consequences of criminal convictions.
- "Removal Defense Checklist in Criminal Charge Cases" at http://www.immigrationadvocates.org/link.cfm?14990
(login required). This checklist summarizes some defensive legal arguments and strategies that non-citizens and their legal representatives may pursue in removal proceedings involving crime-related charges.
- Quick reference guides and manuals on the immigration consequences of state offenses in over 18 states and for federal offenses at http://www.immigrationadvocates.org/link.cfm?14991 (login required). This section of the library contains 11 comprehensive charts, including Arizona, California, Florida, Illinois, Indiana, New Jersey, New York, Virginia, Washington, Wisconsin, and federal. It also includes six abbreviated charts that cover Connecticut, Florida, Vermont, New Mexico, North Carolina, Massachusetts, and Texas.

- "Practice Advisory: The Impact of Nijhawan v. Holder on the Application of the Categorical Approach to Aggravated Felony Determinations," by the Immigrant Defense Project and the National Immigration Project, at http://www.immigrationadvocates.org/link.cfm?14992 (login required). This practice advisory analyzes the Nijhawan's impact on the application of the categorical approach to aggravated felony determinations generally, and provides specific suggestions on how Nijhawan may be used affirmatively to overcome unfavorable case law in certain jurisdictions on certain aggravated felony issues, including the reach of the sexual abuse of a minor and drug trafficking grounds.

- "Practice Advisory: The Impact of Nijhawan v. Holder on the Application of the Categorical Analysis to Selected Grounds of Inadmissibility and Deportability," by the Immigrant Legal Resource Center, at http://www.immigrationadvocates.org/link.cfm?14993
(login required). This practice advisory provides a summary of the opinion, practice tips for criminal and immigration counsel, highlights one issue to be considered under the categorical approach called the "missing element" rule, and explores the potential effect of the decision if courts apply Nijhawan to the grounds of inadmissibility and deportability.
- "Practice Advisory: Recent Developments in the Categorical Approach: Tips for Criminal Defense Lawyers Representing Immigrant Clients," by the Immigrant Defense Project, at http://www.immigrationadvocates.org/link.cfm?14994 (login required). This practice advisory discusses the basics of the "categorical approach" that immigration courts employ to determine whether a state or federal criminal offense falls within the criminal grounds of removal (deportation) and why it is important to criminal defense attorneys. It also provides background on recent developments in the "categorical approach" and provides practice tips to help criminal defenders represent immigrant clients to take advantage of the categorical approach where it applies and to avoid or mitigate negative immigration consequences under these new legal developments.

- "Practice Advisory: Defense Arguments Against Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)," by the Immigrant Legal Resource Center, at http://www.immigrationadvocates.org/link.cfm?14995 (login required). This advisory provides arguments to refute the BIA's decision that a respondent bears the burden of document production to establish that a conviction under a divisible statute is not a bar to relief and that any conviction of a crime involving moral turpitude is a bar to non-LPR cancellation.

The "Podcasts" section contains:

- "Immigration Consequences of Crimes: Statutory Rape - When is it an Aggravated Felony," by Kathy Brady, Senior Staff Attorney at the Immigration Legal Resource Center. This podcast analyzes the BIA and circuit court decisions on statutory rape, consensual sex and sexual abuse of a minor, misdemeanor and felony convictions in this area of law, the importance of examining the record of conviction and other related issues at http://www.immigrationadvocates.org/link.cfm?10563 (login required)

- "Understanding the Immigration Law Consequences of Criminal Activity," produced by the American Immigration Lawyers Association (AILA), this podcast features AILA members Mary E. Kramer, David Leopold, and Thomas E. Moseley. It provides general advice for representing foreign born clients with respect to deportation or inadmissibility consequences of pleas at http://www.immigrationadvocates.org/link.cfm?10089 (login required)
- "Common Questions and Answers on the Immigration Consequences of Juvenile Delinquency," presented by Angie Junck, Staff Attorney at the Immigrant Legal Resource Center (ILRC). This podcast discusses what a juvenile delinquency disposition is, whether there are immigration consequences to a delinquency disposition, how to obtain records of delinquency dispositions, special considerations when representing minors with delinquency dispositions and other issues at http://www.immigrationadvocates.org/link.cfm?13436 (login required)

The "Webinars" section contains:

- "Immigration Consequences of Delinquency," presented by the Immigration Legal Resource Center. This webinar provides an overview and framework for analyzing the immigration consequences of delinquency and underscores the differences from the immigration consequences of crimes analysis. It provides background and strategies on particular grounds that are troublesome for immigrant youth, such as drug trafficking, drug use, gang, and violent related offenses. It also covers legal considerations in the disclosure of juvenile conduct in immigration applications, with a special focus on Form I-485, Adjustment of Status. Finally, practitioners share challenges, strategies, and other tips in representing youth with delinquency issues and how to win these cases as a matter of discretion. It is available at http://www.immigrationadvocates.org/link.cfm?14996 (login required)

- "Crimes Involving Moral Turpitude: Advocacy Strategies in Self-Petitioning and U Visa Representation," with Ann Benson, Directing Attorney for the Washington Defender Association's Immigration Project. This webinar discusses the crimes involving moral turpitude (CIMT) grounds of inadmissibility as it relates to self-petitioning and U visa applicants. Ann also discusses how to determine which CIMT grounds apply, how to apply the current CIMT analytical framework, and how to analyze cases and advocate for clients when there is a potential CIMT offense at http://www.immigrationadvocates.org/link.cfm?14997 (login required)

- "Crimes Based Inadmissibility Issues," presented by Mary Holper, Visiting Assistant Professor at Boston College Law School, and Sarah Bronstein, Staff Attorney with CLINIC. This webinar discusses the crime based grounds of inadmissibility, including crimes involving moral turpitude, controlled substance violations, exceptions to crime based grounds of inadmissibility, and the waivers that are available at http://www.immigrationadvocates.org/link.cfm?10958
(login required)
Upcoming Trainings on Immigration and Crimes:

- On Friday, April 9, from 9 a.m. to 5 p.m. at the Dallas Bar Association, Catholic Charities of Dallas Immigration and Legal Services will host a training called, "Immigration Consequences of Crimes: Relief from Removal." More information is available at http://www.immigrationadvocates.org/link.cfm?14998

- The American Bar Association presents "The Intersection of Criminal and Immigration Laws: Padilla v. Kentucky and Other Recent Decisions of the U. S. Supreme Court," an in-person training, teleconference and live audio webcast on Thursday, April 29, 2010. More information is available at http://www.immigrationadvocates.org/link.cfm?14999

- The Immigrant Legal Resource Center is hosting a crimes webinar series from April through June, which includes: Part I: Introduction to Immigration Consequences of Crimes on Thursday, April 15 from 10:00 - 11:30 a.m. PDT; Part II: Family Immigration for Clients with Criminal Histories on Tuesday, May 4 from 12:00 -1:30 p.m. PDT; and Part III: Applications for Relief in Removal Proceedings on Thursday, June 10 from 12 - 1:30 p.m. PDT. To register, visit http://www.ilrc.org and select "seminars."

- The Defending Immigrants Partnership will be presenting a national webinar, "The Duty of Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky," at the end of April for indigent criminal defenders. For updates visit http://www.defendingimmigrants.org.

- For ongoing immigration and crimes trainings throughout the year, visit the Law Offices of Norton Tooby website at http://www.criminalandimmigrationlaw.com

Other Resources on Immigration and Crimes:

Defending Immigrants Partnership
The Defending Immigrants Partnership website is dedicated exclusively to providing resources to criminal defenders representing noncitizen defendants at www.defendingimmigrants.org.

Immigrant Legal Resource Center
The Immigrant Legal Resource Center website contains information on the intersection of immigration and criminal law at http://www.ilrc.org/immigration_law/criminal_and_immigration_law.php

National Immigration Project of the NLG
The National Immigration Project of the NLG website includes advisories, pleadings and other information on the immigration consequences of criminal convictions at http://www.nationalimmigrationproject.org/CrimPage/CrimPage.html

Immigrant Defense Project
The Immigrant Defense Project website provides information and resources on the immigration consequences of criminal convictions for criminal defenders, immigration advocates, and immigrants at http://www.immigrantdefenseproject.org/

U.S. Supreme Court ruling preserves the right to judicial review for immigrants facing deportation.

HELD: Section 1252(a)(2)(B)’s proscription of judicial review applies only to Attorney General determinations made discretionary by statute, not to determinations declared discretionary by the Attorney General himself through regulation.

Kucana v. Holder (PDF)

(a) The motion to reopen is an “important safeguard” intended “to ensure a proper and lawful disposition” of immigration proceedings. Dada v. Mukasey, 554 U. S. 1, ___. Federal-court review of adminis-trative decisions denying motions to reopen removal proceedings dates back to at least 1916, with the courts employing a deferential abuse of discretion standard of review. While the Attorney General’s regulation in point, 8 CFR §1003.2(a), places the reopening decision within the BIA’s discretion, the statute does not codify that prescription or otherwise “specif[y]” that such decisions are in the Attorney General’s discretion. Pp. 6–7.

(b) Section 1252(a)(2)(B) does not proscribe judicial review of denials of motions to reopen. Pp. 8–16.

(1) The amicus defending the Seventh Circuit’s judgment urges that regulations suffice to trigger §1252(a)(2)(B)(ii)’s proscription. She comprehends “under” in “authority . . . specified under this subchapter” to mean, e.g., “pursuant to,” “subordinate to.” Administrative regulations count for §1252(a)(2)(B) purposes, she submits, be-cause they are issued “pursuant to,” and are measures “subordinate to,” the legislation they serve to implement. On that reading,§1252(a)(2)(B)(ii) would bar judicial review of any decision that an executive regulation places within the BIA’s discretion, including the decision to deny a motion to reopen. The parties, on the other hand, read the statutory language to mean “specified in,” or “specified by,” the sub-chapter. On their reading, §1252(a)(2)(B)(ii) precludes judicial review only when the statute itself specifies the discretionary character of the Attorney General’s authority. Pp. 8–9.

(2) The word “under” “has many dictionary definitions and must draw its meaning from its context.” Ardestani v. INS, 502 U. S. 129, 135. Examining the provision at issue in statutory context, the parties’ position stands on firmer ground. Section 1252(a)(2)(B)(ii) is far from IIRIRA’s only jurisdictional limitation. It is sandwiched between two subsections, §1252(a)(2)(A) and §1252(a)(2)(C), both dependent on statutory provisions, not on any regulation, to define their scope. Given §1252(a)(2)(B)’s statutory placement, one would expect that it, too, would cover statutory provisions alone. Pp. 9–11.

(3) Section 1252(a)(2)(B)(i) places within the no-judicial-review category “any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255.” Each of the referenced statutory provisions addresses a different form of discretionary relief from removal and contains language indicating that the decision is entrusted to the Attorney General’s discretion. Clause (i) does not re-fer to any regulatory provision. The proximity of clause (i) and the clause (ii) catchall, and the words linking them—“any other decision” suggests that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation. Read harmoniously, both clauses convey that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute. Pp. 11–12.

The Illegal Immigration Reform and Immigrant Responsibility Act of1996 (IIRIRA) amended the Immigration and Nationality Act (INA or Act), codifying certain rules, earlier prescribed by the Attorney General, that govern the process of reopening removal proceedings. IIRIRA also added a provision stating that no court has jurisdiction to review any action of the Attorney General “the authority for which is specified under this sub-chapter to be in the discretion of the Attorney General.” 8 U. S. C. §1252(a)(2)(B)(ii). A regulation, amended just months before IIRIRA’s enactment, provides that “[t]he decision to grant or deny a motion to reopen . . . is within the discretion of the [Board of Immigration Appeals (BIA)],” 8 CFR §1003.2(a). As adjudicator in immigration cases, the BIA exercises authority delegated by the Attorney General. Petitioner Kucana moved to reopen his removal proceedings, asserting new evidence in support of his plea for asylum. An Immigration Judge denied the motion, and the BIA sustained that ruling. The Seventh Circuit concluded that it lacked jurisdiction to review the administrative determination, holding that §1252(a)(2)(B)(ii) bars judicial review not only of administrative decisions made discretionary by statute, but also of those made discretionary by regulation.

(4) Also significant is the character of the decisions insulatedfrom judicial review in §1252(a)(2)(B)(i). The listed determinations are substantive decisions the Executive makes involving whether or not aliens can stay in the country. Other decisions specified by statute “to be in the discretion of the Attorney General,” and therefore shielded from court oversight by §1252(a)(2)(B)(ii), are of a like kind. See, e.g., §1157(c)(1). Decisions on reopening motions made discretionary by regulation, in contrast, are adjunct rulings. A court decision reversing the denial of a motion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims have been accorded a reasonable hearing. Had Congress wanted the jurisdictional bar to encompass decisions specified as discretionary by regulation as well as by statute, moreover, Congress could easily have said so, as it did in provisions enacted simultaneously with §1252(a)(2)(B)(ii). See, e.g., IIRIRA, §213, 110 Stat. 3009–572. Pp. 12–14.

(5) The history of the relevant statutory provisions corroborates this determination. Attorney General regulations have long ad-dressed reopening requests. In enacting IIRIRA, Congress simultaneously codified the process for filing motions to reopen and acted tobar judicial review of a number of executive decisions regarding removal. But Congress did not codify the regulation delegating to the BIA discretion to grant or deny reopening motions. This legislative silence indicates that Congress left the matter where it was pre-IIRIRA: The BIA has broad discretion, conferred by the Attorney General, “to grant or deny a motion to reopen,” 8 CFR §1003.2(a), but courts retain jurisdiction to review the BIA’s decision. It is unsurprising that Congress would leave in place judicial oversight of this “important [procedural] safeguard,” Dada, 554 U. S., at ___, where, as here, the alien’s underlying asylum claim would itself be reviewable. The REAL ID Act of 2005, which further amended the INA by adding or reformulating provisions on asylum, protection from removal, and even judicial review, did not disturb the unbroken line of decisions upholding court review of administrative denials of motions to reopen. Pp. 14–16.

(c) Any lingering doubt about §1252(a)(2)(B)(ii)’s proper interpretation would be dispelled by a familiar statutory construction principle: the presumption favoring judicial review of administrative action. When a statute is “reasonably susceptible to divergent interpretation,” this Court adopts the reading “that executive determinations generally are subject to judicial review.” Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 434. The Court has consistently applied this interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction. See, e.g., Reno v. Catholic Social Services, Inc., 509 U. S. 43, 63–64. Because this presumption is “ ‘well-settled,’ ” ibid., the Court assumes that “Congress legislates with knowledge of” it, McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496. It therefore takes “ ‘ “clear and convincing evidence” ’ ” to dislodge the presumption. Catholic Social Services, Inc., 509 U. S., at 64. There is no such evidence here. Finally, reading §1252(a)(2)(B)(ii) to apply to matters where discretion is conferred on the BIA by regulation would ignore Congress’ design to retain for itself control over federal court jurisdiction. The Seventh Circuit’s construction would free the Executive to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions “discretionary.” Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted. Pp. 16–17. 533 F. 3d 534, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment.