Is recidivist drug possession always an aggravated felony?
Today the Supreme Court will hear oral arguments in a much-anticipated crImmigration case: Carachuri-Rosendo v. Holder, No. 09-60. The question before the Court (the “question presented” in Supreme Court parlance) is this: Whether a person convicted under state law for simple drug possession (a federal law misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal law felony), even though there was no charge or finding of a prior conviction in his prosecution for possession. The Fifth and Seventh Circuit Courts of Appeal hold that a person, including Carachuri-Rosendo, convicted under these circumstances has been convicted of an illicit trafficking type of aggravated felony. In contrast, four circuits—the First, Second, Third, and Sixth Circuits—and the BIA hold that this does not render a person an aggravated felon. I have written about the impact of Carachuri-Rosendo many times—the Fifth Cir
