Circuit Split Widens on Aggravated Felony Issue

Per BNA's U.S. Law Week, 77 U.S.L.W. 1320 (Nov. 25, 2008):

A second simple possession conviction is not an aggravated felony for immigration purposes so as to make the offending alien ineligible for cancellation of removal, the U.S. Court of Appeals for the Second Circuit holds, joining the First, Third, and Sixth Circuits in a circuit split on the question. The Fifth and Seventh Circuits have held that a second simple possession offense can be considered a federal felony because it could have been prosecuted as a recidivist offense. According to the Second Circuit, however, “a second conviction for simple controlled substance possession under state law is not a felony under the Controlled Substances Act because the conviction does not proscribe conduct punishable as a felony as it does not correspond in any meaningful way with the federal crime of recidivist possession even if it could have been prosecuted in state court as a recidivist offense.” The court also made clear that its discussion in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), as to whether a simple possession conviction constitutes an aggravated felony because of a previous drug conviction was dicta. Alsol v. Mukasey, 2d Cir., No. 07-2068-ag(L), 11/14/08.