Last week, the Board of Immigration Appeals ("BIA") issued an important precedential decision that is likely to have a tremendous impact on immigration cases involving drug offenses, especially ones arising out of New Jersey. In Matter of Rosa, 27 I & N Dec. 228 (BIA 2018), the Board held that immigration judges are not limited to comparing a state drug offense to its closest or most similar federal counterpart when trying to determine whether the state crime is an aggravated felony. The Court ruled that it is permissible for an adjudicator to look at multiple provisions of the Controlled Substance Act to determine whether the conduct proscribed by the state also falls within the range of conduct punishable by a federal provision.
The particular statute in question was a New Jersey one, 2C:35-7, which outlaws distribution of a controlled dangerous substance on or within 1000 feet of a school. In an unpublished Third Circuit decision which attorneys have acclaimed and predicated some defense arguments on, Chang-Cruz v. Atty General, the Court had ruled that 2C:35-7 did not categorically constitute an aggravated felony because it was broader than its closest federal analogue under 21 USC 860. Using the arguments advanced in that case, attorneys have been successful in contesting the aggravated felony charge which, in some cases, enabled their clients to apply for relief. Now, however, the government may begin arguing that 2C:35-7 is an aggravated felony "drug trafficking crime" because it would be punished as a felony under the Controlled Substance Act, specifically 21 USC 841(a)(1), a lesser included offense of section 860 that does not require the element of being within proximity to a school.
If Courts begin following Rosa, which they are bound to in the absence of a contrary federal circuit court decision, immigrants convicted of Distribution within 1000 feet of a school zone may find themselves precluded from many forms of relief, given the draconian consequences of an aggravated felony. Some of the more popular applications that may be precluded in immigration court include asylum; withholding of removal; cancellation of removal; and voluntary removal. In addition, people who are determined to have been convicted of aggravated felonies are subject to mandatory detention and permanently barred from re-entering the United States after removal.
In light of the momentous impact of this decision, it is critical that non-US citizens charged with any drug offense consult with both criminal and immigration counsel. The punitive aspects of a criminal conviction are obviously very significant, but for people who can no longer return to their native countries, the immigration consequences may arguably be just as, if not more, severe.
For a confidential review and analysis of any potential immigration consequences, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney-client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.