Lopez v. Gonzales: a window on the shortcomings of the federal appellate process.

AuthorNewton, Brent E.
  1. INTRODUCTION

    Several years ago, I discussed in this journal (1) the Fifth Circuit's repeated error in dismissing as frivolous several strong legal arguments, among them the contention that an alien's state felony conviction for simple possession of illegal drugs was not a "drug trafficking" (2) crime that qualified as an "aggravated felony" (3) under the relevant provisions of the Immigration and Nationality Act. (4) Several other circuits, while not classifying it as outright frivolous, had by then also adamantly rejected this argument. (5)

    Despite both the courts' treatment of the claim as entirely lacking merit during the 1990s, and the Fifth Circuit's mentioning the threat of sanctions to attorneys who continued to press the argument, (6) lawyers representing aliens continued to litigate the issue in virtually every circuit and, when they were unsuccessful, to seek review in the Supreme Court. Ultimately, nearly fifteen years after the issue was first decided by a federal appeals court, (7) and only after a multi-dimensional split among the circuits had developed, the Supreme Court addressed the issue. In a 2006 opinion that resoundingly rejected the position adopted by the majority of circuits, the Court held in Lopez that a state felony conviction for simple possession of drugs is not a drug trafficking crime constituting an aggravated felony under the immigration laws. (8)

    The fifteen-year history of the litigation over this issue--a history that ended only with the Supreme Court's decision in Lopez--presents a compelling case study of significant shortcomings in the federal appellate process. First, it demonstrates that many federal appeals courts for well over a decade gave short shrift to a compelling legal argument, which resulted in the denial of relief to an extremely large class of litigants. Second, it demonstrates that the Supreme Court failed to intervene in a timely manner despite the importance of the legal issue and the thousands of litigants affected nationwide. Third, it demonstrates the Justice Department's failure to seek Supreme Court review of an important issue even after it became clear that review at the highest level was warranted. Finally, and of particular interest to practitioners reading this article, the history of the courts' treatment of the issue presented in Lopez also demonstrates the need for counsel to preserve for appeal a legal claim that, although foreclosed by adverse precedent in a particular jurisdiction, eventually may be found by the Supreme Court to be meritorious.

  2. "DRUG TRAFFICKING" AS AN "AGGRAVATED FELONY" UNDER SECTION 101(a)(43)(B) OF THE IMMIGRATION AND NATIONALITY ACT

    Under federal immigration law, a non-citizen (including a permanent resident alien) convicted of an aggravated felony offense (9) is virtually certain to be deported from the United States (10) and, if he thereafter were to return illegally and be discovered by immigration authorities, very likely would be prosecuted in federal court under 8 U.S.C. [section] 1326 and face prison time followed by another deportation. (11) Moreover, such an alien also would face dramatically more prison time than a previously deported alien who illegally reentered without having a prior conviction for an aggravated felony. (12) As the Supreme Court explained in Lopez

    An aggravated felony on [an alien's] criminal record has worse collateral effects than a felony conviction simple. Under the immigration statutes, for example, the Attorney General's discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. [8 U.S.C.] [section] 1229b(a)(3). Nor is an aggravated felon eligible for asylum. [8 U.S.C.] [section] [section] 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i). And under the sentencing law, the Federal [Sentencing] Guidelines attach special significance to the "aggravated felony" designation: a conviction of unlawfully entering or remaining in the United States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for "any other felony." United States Sentencing Commission, Guidelines Manual [section] 2L1.2 (Nov. 2005) (hereinafter USSG); id., comment, n. 3 (adopting INA definition of aggravated felony). (13) Although there are many types of aggravated felonies, one of the most common types arising in immigration cases during the past two decades has been a drug trafficking crime. (14) Since 1990, 8 U.S.C. [section] 1101(a)(43)(B) has provided that an alien's conviction for "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)," qualifies as an aggravated felony. (15) While framing the issue to be decided in Lopez, the Supreme Court noted that 18 U.S.C. [section] 924(c) is the federal penal statute criminalizing the possession or use of a firearm in furtherance of a "drug-trafficking crime," and observed that

    The general phrase "illicit trafficking" is left undefined, but [section] 924(c)(2) of Title 18 identifies the subcategory by defining "drug trafficking crime" as "any felony punishable under the Controlled Substances Act" or under either of two other federal statutes having no bearing on this case. Following the listing, [8 U.S.C. [section] 1101(a)(43)] ... provides in its penultimate sentence that "[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law" or, in certain circumstances, "the law of a foreign country." (16) As explained below, these statutory cross-references, implicating three different titles of the United States Code, spawned a tremendous amount of litigation that took a decade and a half to resolve. During that time, many thousands of aliens were treated as aggravated felons in civil and criminal immigration proceedings only because of their prior state felony convictions for simple possession of illegal drugs.

  3. THE UNNECESSARILY CONVOLUTED HISTORY OF LITIGATION OVER THE MEANING OF "DRUG TRAFFICKING"

    1. The Justice Department's Position

      Beginning in the early 1990s, the Justice Department (17) took the position in deportation proceedings that an alien's state conviction for simple possession of illegal drugs classified as a felony under the relevant state's penal laws (18) was drug trafficking under 8 U.S.C. [section] 1101(a)(43)(B), notwithstanding that simple possession generally is a misdemeanor under federal law and ordinarily is not considered "drug trafficking." (19) The Justice Department's argument was as follows:

      * The statutory phrase "any felony punishable under the [federal] Controlled Substances Act" should be disassembled into its separate components of (1) "any felony" and (2) "punishable under the Controlled Substances Act," and

      * so long as a state conviction satisfied both prongs independently, the underlying offense qualified as a drug trafficking crime, even if it involved simple possession instead of actual trafficking in illegal drugs; and thus

      * because many states punished simple possession of illegal drugs as a felony (even though possession was, if a first offense, "punishable under the Controlled Substance Act" only in the sense that it was treated as a misdemeanor under 21 U.S.C. [section] 844(a)), a state felony conviction for simple possession should be treated as a drug trafficking crime under 8 U.S.C. [section] 1101(a)(43)(B). (20)

      The Justice Department's position received mixed reviews in early litigation. Three-judge panels of the First and Second Circuits agreed with the Department, while the en banc Board of Immigration Appeals (the highest administrative tribunal within the INS) unanimously rejected it. (21) Because those initial decisions set the stage for subsequent litigation over the issue, they warrant close analysis.

    2. The Early Decisions

      1. The First Circuit's Initial Decision: Amaral

        In Amaral v. INS, (22) the first court to address the issue provided alternative rationales for its decision that an alien's Rhode Island felony convictions for simple possession qualified as drug trafficking. After observing that the issue on appeal concerned the operative term "trafficking" in 8 U.S.C. [section] 1101(a)(43)(B), the court described the case as follows:

        Petitioner [an alien ordered deported] contends that the plain meaning of "trafficking" requires something more than simple possession. He contends that the harsh consequences accompanying aggravated felon status were intended only for serious drug traffickers and not simple users or possessors. Both the 1988 and 1990 definitions refer to 18 U.S.C. [section] 924(c)(2). The term "drug trafficking crime" is defined in 18 U.S.C. [section] 924(c)(2) to include "any felony punishable under the Controlled Substances Act (21 U.S.C. [section] 801 et seq.), the Controlled Substance Import and Export Act (21 U.S.C. [section] 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. [section] 1901 et seq.)." Thus, for a drug offense to come within 18 U.S.C. [section] 924(c)(2), and hence, in turn, to fit within the definition of aggravated felony, two criteri[a] must be met: 1) the offense must be punishable under one of the three enumerated statutes, and 2) the offense must be a felony. Petitioner does not dispute that the first criterion--an offense punishable under one of the three enumerated statutes--is met. Possession of drugs is punishable under 21 U.S.C. [section] 844(a), a part of the Controlled Substances Act.... Petitioner contends that the second criterion necessary for an offense to be considered a drug trafficking crime is not satisfied because his 1989 simple possession conviction should not qualify as a felony under [section] 844(a). A felony, however, is defined under the Controlled Substances Act as "any Federal or State offense classified by applicable Federal or State Law as a felony." 21...

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