Immigration Law - second drug offense not aggravated felony merely because of possible felony recidivist prosecution - Alsol v. Mukasey.

• Author: Gearty, Lauren P.
• Position: CASE COMMENTS

Immigration Law--Second Drug Offense Not Aggravated Felony Merely Because of Possible Felony Recidivist Prosecution--Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008)

Under the Immigration and Nationality Act (INA), an alien is subject to deportation if convicted of any aggravated felony. (1) A state misdemeanor drug offense is an aggravated felony if that offense would constitute a felony had it been charged under the Federal Controlled Substance Act (CSA). (2) The recidivist provision of the CSA extends the maximum allowable imprisonment for an alien who commits a second drug possession offense to two years, thus rendering the alien a felon under the CSA. (3) In Alsol v. Mukasey, (4) the United States Court of Appeals for the Second Circuit considered whether a second state drug possession conviction constitutes a felony under the CSA because it could have been prosecuted as a recidivist offense. (5) The Second Circuit held that a second possession offense is not automatically a recidivist offense and therefore not an aggravated felony subject to immigration consequences. (6)

The Second Circuit consolidated two cases involving aliens who appealed decisions of the Board of Immigration Appeals (BIA) ordering them removed as aggravated felons. (7) Petitioners Karen Nicola Alsol and Donald Overton Powell were each convicted of criminal possession of a controlled substance in violation of New York Penal Law on two separate occasions. (8) The state did not seek recidivism-based sentencing enhancement against Alsol and Powell for their second possession offenses. (9)

In October 2004, an immigration judge found that Powell was not an aggravated felon because the state did not prosecute him as a recidivist drug offender. (10) The Department of Homeland Security (DHS) appealed the decision and the BIA sustained its appeal, ordering Powell removed as an aggravated felon because the state could have prosecuted him as a recidivist. (11) In october 2006, an immigration judge found that Alsol's second possession conviction was not an aggravated felony for immigration purposes. (12) The DHS appealed the decision to the BIA, which vacated the decision and ordered that Alsol be removed as an aggravated felon. (13) On petition for review, the Second Circuit vacated both BIA decisions and held that a second state possession offense is not an aggravated felony merely because the state could have prosecuted it as a recidivist offense. (14)

An alien convicted of an aggravated felony faces adverse immigration consequences. (15) The INA defines an aggravated felony, in pertinent part, as "illicit trafficking in a controlled substance ... including a drug trafficking crime" whether in violation of state or federal law. (16) A "drug trafficking crime" is defined as any felony punishable under federal drug laws, including the CSA. (17) The CSA defines a felony as any offense that carries a maximum term of imprisonment exceeding one year. (18)

In Lopez v. Gonzales, the United States Supreme Court held that a state drug offense constitutes a felony for CSA purposes only if the offender's conduct is a felony under federal law. (20) While a simple possession offense generally proscribes conduct punishable as a federal misdemeanor, the government may seek recidivism-based sentencing enhancement against an alien charged with a second misdemeanor drug offense. (21) If a court determines that an alien is a recidivist offender, that alien is considered an aggravated felon because the increased sentence exceeding one year would render the alien a felon under federal law. (22) The BIA determined that this increased sentence is only applicable if an alien admits or a judge or jury determines that the alien is a recidivist offender. (23) The BIA also declared it would apply this rule unless circuit precedent mandates otherwise. (24)

The circuit courts are split on whether a second simple possession conviction constitutes an aggravated felony for immigration purposes when the government could have, but did not, prosecute it as a recidivist offense. (25) The First, Third, and Sixth Circuits agree with the BIA that a second possession offense is not automatically a recidivist offense and therefore not an aggravated felony for immigration purposes. (26) These circuits maintain that an alien is not a recidivist offender unless the record establishes that the alien admitted to recidivist possession or that the judge or jury convicted the alien of recidivist possession. (27) By contrast, the Fifth and Seventh Circuits assert that a second possession offense may constitute an aggravated felony regardless of whether an alien is charged or convicted as a recidivist offender. (28) The Fifth and Seventh Circuits reason that a second possession offender is an aggravated felon because an alien would have been subject to enhanced sentencing had the alien been federally charged. (29)

In Alsol v. Mukasey, the Second Circuit considered whether a second state possession conviction constitutes a felony under the CSA where the government could have prosecuted it as a recidivist offense. (30) The court rejected the Fifth and Seventh Circuits' positions that an alien is an aggravated felon if the prosecution could have charged the alien as a recidivist. (31) The court asserted that Lopez does not automatically qualify two state possession convictions as a felony recidivist conviction merely because the state could have pursued recidivist charges. (32) Instead, the court maintained that Lopez requires an actual conviction of a state offense punishable as a federal felony, not merely a potential conviction. (33) The court also emphasized that its conviction requirement is consistent with the INA, which determines removability based on actual--not hypothetical--convictions. (34)

The Second Circuit refused to deem Powell and Alsol aggravated felons when the state court neither litigated nor established their recidivist status. (35) The court stressed that recidivist sentence enhancement requires the government to file notice of the prior conviction and, if contested, prove its existence beyond a reasonable doubt. (36) The court refused to qualify Powell and Alsol's convictions as federal recidivist felonies when state prosecutors elected to forgo recidivist enhancement. (37) Further, the court warned against combining state offenses for the first time in removal proceedings because an alien has no right to challenge the validity of his prior conviction in removal proceedings. (38)

The Second Circuit, in refusing to label Alsol and Powell as aggravated felons merely because the state could have prosecuted them as recidivists, correctly concluded that the ruling body must base an alien's status as an aggravated felon on an actual conviction. (39) The court properly foreclosed hypothetical considerations of whether an alien's conduct would have resulted in federal conviction. (40) Such an approach affords immigration judges too much discretion to inquire into an alien's criminal history, combine offenses for the first time in removal proceedings, and then determine hypothetically that the government could charge the alien with a federal felony. (41) Accordingly, the Fifth and Seventh Circuits' approach improperly adds a second hypothetical to the "hypothetical federal felony" approach. (42)

The court sensibly mandated that recidivist sentence enhancement requires compliance with significant procedural safeguards. (43) The safeguards ensure that the accused has proper pretrial notice of the charge and affords the accused the opportunity to challenge the prior conviction. (44) Under the Fifth...