Supreme Court Redefines “Aggravated Felony”

In Lopez v. Gonzales, 127 S.Ct. 625 (Dec. 5, 2006), the United States Supreme Court held that a conviction for possession of a controlled substance, i.e., cocaine, heroin, etc. does not qualify as an “aggravated felony” under the Immigration and Nationality Act (hereinafter referred to as “INA”). This distinction is important since a non-citizen convicted of an “aggravated felony” is not eligible for Cancellation of Removal under INA §240A, nor would be eligible for asylum relief. Until the Supreme Court decided this case the immigration courts, as well as numerous courts in the nation, removed non-citizens for mere possession of controlled substances, without giving them the benefit of a waiver.

Effect Upon §240A Waivers

Under §240A, a non-citizen is eligible for cancellation of removal if he meets the following requirements: (1) not convicted of an “aggravated felony,” (2) has been a legal permanent resident for at least 5 years, and (3) has resided in the U.S. continuously for seven years after having been admitted in any status, i.e., as a visitor, H1-B, etc. It is important to note that the seven-year period of “continuous” residence cannot be broken by the commission of a serious crime.

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Pending or Completed Cases are Effected

A person who currently has a pending case, either in the Immigration Court, the Board of Immigration Appeals, or in a Circuit Court on a Petition for Review, wherein the non-citizen was removed on the basis of an “aggravated felony” for a drug conviction should seriously consider having his or her case re-evaluated to determine whether the Lopez case could be helpful. Even a case that has already been decided, or where the non-citizen was already removed, may have remedies to bring the case to the attention of the court again. It should be noted, however, that illegally returning to the U.S. to bring such an action would not be advisable. The action should, at least, be initiated while the non-citizen is outside the country, and permission ought to be obtained before returning to the U.S.

Lopez Opens Door to Challenge “Delivery” Charges

It is important to note that the Supreme Court did not discuss whether or not delivery and/or manufacture of controlled substances would not be an “aggravated felony.” The immigration courts, at this point, still interpret delivery as “trafficking,” and, thus, an “aggravated felony” under the INA. Chicago Immigration Advocates, however, have advanced arguments that dispute that delivery charges are “aggravated felon[ies]” under the INA. The Supreme Court’s opinion in Lopez lends support that the immigration court’s interpretation of delivery of controlled substances is too harsh and looks forward to making this argument before the 7th Circuit Court of Appeals and the United States Supreme Court in some of its pending cases.