IDP Issues New Practice Advisory on "Using Lopez v. Gonzales to Challenge Aggravated Felony Drug Trafficking Charges or Bars on Relief" (105K PDF)

This practice advisory’s purpose is to aid immigration law practitioners (and immigrants themselves) in developing legal arguments that certain drug-related crimes do not constitute aggravated felonies. In doing so, this practice advisory provides the following information: 

• Background information about Lopez v. Gonzales, the 2006 Supreme Court decision bearing on drug trafficking aggravated felony determinations. 
• A checklist of questions to consider when the government has alleged that a state drug offense is a drug trafficking aggravated felony. The checklist suggests arguments that could be raised to challenge such drug trafficking aggravated felony allegations either when raised in the context of a deportability charge or a claim of ineligibility for relief from removal. 

Board of Immigration Appeals Limits Automatic Deportation for Legal Immigrants on Issue Left Unresolved by Supreme Court Decision in Lopez v. Gonzales: Practice Advisory

On December 13, 2007, the Board of Immigration Appeals issued two precedent decisions that together mean that, in cases arising outside the Second, Fifth and Seventh Circuits, a non-citizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. The BIA left open the question of when a noncitizen who was convicted by the state as a recidivist could be deemed convicted of an aggravated felony.

In cases arising in the Fifth Circuit, as well as the Second and Seventh Circuits, the BIA indicated that it was constrained by circuit precedent to find that a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. However, the practice advisory below provides arguments for individuals in these circuits to show that the precedents from these circuits cited by the BIA do not preclude a finding that a second or subsequent state possession offense is not an aggravated felony.

Practice Advisory: The Impact of the BIA Decision in Matter of Carachuri and Matter of Thomas on Removal Defense of Immigrants With More than One Drug Possession Conviction (Dec. 19, 2007) (183K PDF)

Supreme Court Limits Automatic Deportation For Legal Immigrants: Lopez v. Gonzales Practice Advisories and Media Materials

On December 5, 2006, in an 8-1 opinion written by Justice Souter, the U.S. Supreme Court held that the government has been misapplying immigration law by subjecting lawful permanent resident immigrants to automatic deportation for drug possession offenses. The decision, Lopez v. Gonzalez , will have a dramatic protective impact on the rights of the nation's 12 million legal immigrants.

Pro Se Advisory: Immigrants With Multiple Drug Possession Convictions: Instructions for Challenging Whether You Have Been Convicted of an Aggravated Felony (Oct. 12 ,2007) (123K PDF)

Practice Advisory: Removal Defense of Immigrants in Drug Possession Cases--The Impact of Lopez v. Gonzales (April 12, 2007) (156K PDF)

Practice Advisory: Criminal Defense of Immigrants in State Drug Cases--The Impact of Lopez v. Gonzales (Dec. 14, 2006) (141K PDF)

Practice Advisory: Defending Immigrants with Prior Drug Possession Convictions in Illegal Entry/Reentry Cases--The Impact of Lopez v. Gonzales (Dec. 11, 2006) (145K PDF)

The following materials provide background and further information on these issues.

Key Legal Precedents (36K PDF)

Amicus Briefs Fact Sheet (38K PDF)

Glossary of Key Terms (11K PDF)

Overview of Cases: Unfair and Harsh Laws Tear Families Apart (24K PDF)

For amicus briefs in these cases and in other cases raising this issue, go to our Drug Litigation page .

A community training will be held on Saturday, February 24, 2007. Click here (179K PDF) for information.