The Supreme Court stated its June 14, 2010 decision in Carachuri-Rosendo v. Holder that "Second or subsequent simple possession offenses are not aggravated felonies under §1101(a)(43) when ... the state conviction is not based on the fact of a prior conviction."
"[O]nly recidivist simple possession offenses are "punishable" as a federal "felony" under the Controlled Substances Act, 18 U. S. C. §924(c)(2)"
Citing its earlier decision, the Supreme Court re-iterated "[I]n Lopez v. Gonzales , 549 U. S. 47, 56 (2006), we determined that, in order to be an "aggravated felony" for immigration law purposes, a state drug conviction must be punishable as a felony under federal law. We held that "a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law"
The Court re-iterated: "[A]s we noted in Leocal v. Ashcroft , 543 U. S. 1, 11, n. 8 (2004), ambiguities in criminal statutes referenced in immigration laws should be construed in the noncitizen’s favor."
Ricky Malik
Attorney at Law