Background
The harsh penalties for drug use and sale have torn families and communities apart without providing the safety those communities deserve. IDP is working to end the double punishment of people with drug convictions and reverse the harms of the drug war for immigrant communities.
In 1996, Congress enacted legislation hugely expanding the numbers of immigrants subject to mandatory detention, deportation, and denial of lawful status based on state drug offenses. Successive administrations have sought to apply the drug provisions of immigration laws extremely aggressively. IDP has been fighting to narrow the scope of drug-related laws used to detain and deport immigrants, including the controlled substance offense and drug trafficking aggravated felony grounds of removability.
NEW! Resources Regarding Second Circuit’s Landmark September 6th Decision in U.S. v. Minter, Holding Certain New York Drug Convictions Are not Aggravated Felonies or Offenses Relating to a Controlled Substance
The Second Circuit has issued a decision that New York’s definition of cocaine is categorically broader than the federal Controlled Substances Act. This decision also renders New York’s definition of cocaine and narcotic drug categorically broader than the Immigration and Nationality Act’s removability sections: offense relating to a controlled substance, and drug trafficking aggravated felony. Certain noncitizens are now eligible to terminate removal proceedings, apply for relief in removal proceedings, file motions to reconsider and reopen prior removal orders, and apply for immigration benefits such as naturalization. Below IDP provides resources about this decision for community members, lawyers, and advocates impacted by New York drug convictions and the immigration system. The Minter decision builds on years of litigation against the immigration and federal sentencing consequences of the drug war. See Hylton v. Sessions, Harbin v. Sessions, Martinez v. Mukasey, Mathis v. United States, Mellouli v. Lynch, Moncrieffe v. Holder, Carachuri Rosendo v. Holder, Lopez v. Gonzales. IDP is committed to ending the double punishment of people with drug convictions. For further assistance with impacted cases, please contact IDP. For a detailed analysis of the Minter decision and immigration consequences for New Yorkers, please subscribe to Quick Reference Chart for Determining Key Immigration Consequences of Common New York Offenses (2023), available at https://www.immigrantdefenseproject.org/product/updated-new-york-quick-reference-chart-2023-edition/.
- FAQ: Update on immigration consequences for New York “narcotic drug” convictions
- For community members (English/Spanish)
- For advocates
- For defenders
- Sample Motion to Reconsider and/or Reopen Removal Proceedings, in Light of U.S. v. Minter (downloadable MS Word version)
- FAQ and “How to Use” Sample Motion
- BIA and Immigration Judge Decisions cited in Sample Motion:
- In re B-P-, AXXX-XXX-XXX (B.I.A. Jul. 24, 2023)
- In re X-, AXXX-XXX-976 (B.I.A. Aug. 16, 2023)
- In re X-, AXXX-XXX-XXX (B.I.A. Mar. 17, 2022)
- Decision of Immigration Judge Alice Segal, In r. A-XXX-XXX-XXX (N.Y. Imm. Ct. Dec. 1, 2021)
- Decision of Immigration Judge Margaret Kolbe, In re A-XXX-XXX-XXX (N.Y. Imm. Ct. Dec. 7, 2021)
- Decision of Immigration Judge Douglas Schoppert, In re A-XXX-XXX-XXX (N.Y. Imm. Ct. Aug. 13, 2020)
Legal Resources Relating to Drug Convictions and Identity of Controlled Substance
- Additional briefs
- Practice Note Harbin v. Sessions and New York “Controlled Substance” Offenses (2017, by IDP)
- Updated Practice Advisory “Realistic Probability in Immigration Categorical Approach Cases (June 3, 2021, by IDP and NIP-NLG)
- Prior Version of Practice Advisory The Realistic Probability Standard: Fighting Government Efforts to Use It to Undermine the Categorical Approach (Nov. 5, 2014, by IDP and NIP-NLG)
- Amicus Brief Brief of IDP submitted before New York City’s Immigration Court from 2015-2017 Regarding Overbreadth and Indivisibility of New York Penal Law “Controlled Substance” Convictions (Amicus counsel NYU Immigrant Rights Clinic)
- Practice Advisory Mellouli v. Lynch: Further Support for a Strict Categorical Approach for Determining Removability under Drug Deportation and Other Conviction-Based Removal Grounds (June 8, 2015, by IDP and NIP-NLG)
- Amicus Brief Mellouli v. Lynch, Brief of the National Association of Criminal Defense Lawyers, IDP and NIP-NLG in Support of Petitioner (Amicus counsel Wilmer Cutler Pickering Hale and Dorr LLP)
Legal Resources Relating to Drug Distribution Convictions and the Means of Distribution
- Amicus Briefs Pascual v. Holder, 723 F.3d 156 (2d Cir. 2013):
- Brief of IDP and immigration and criminal defense organizations in Support of Petition for Rehearing En Banc (Amicus counsel Gibson Dunn & Crutcher LLP, IDP)
- Brief of IDP and immigration and criminal defense organizations in Support of Petitioner (Amicus counsel Gibson Dunn & Crutcher LLP, IDP)
- Practice Advisory Moncrieffe v. Holder: Implications for Drug Charges and Other Issues Involving the Categorical Approach (May 2, 2013, by IDP, NIP-NLG, and AIC)
- Practice Advisory Multiple Drug Possession Cases after Carachuri-Rosendo v. Holder (June 21, 2010, by IDP)
- Amicus Brief Carachuri-Rosendo v. Holder, Brief of NACDL, NLADA, IDP, ILRC, and NIP-NLG in Support of Petitioner (Amicus counsel Gibson, Dunn & Crutcher LLP)
- Amicus Brief Carachuri-Rosendo v. Holder, Brief of NACDL, NLADA, IDP, ILRC, and NIP-NLG in Support of Petitioner (Amicus counsel Gibson, Dunn & Crutcher LLP)