Emerging Issues In Crime And Immigration:New Hope For Immigrant Drug Offenders
Three important legal developments that will protect thousands facing deportations
GROUNDBREAKING DEVELOPMENT
Three new groundbreaking federal cases will have huge potential for immigrants convicted of certain California drug offenses. Decided in 2013, two of those cases come directly from the United States Supreme Court, Moncrieffe v. Holder, and Descamps v. United States. The other, Olivas-Motta v. Holder, was decided by the Ninth Circuit Court of Appeals.
The new case law illustrates that many California statutes defining controlled substance offenses are overly board and significantly distinguishable from federally defined control substances. The Courts illuminate a complex area of legal construction, which had been often misunderstood. Specifically, the Courts define how State statutes are to be analyzed in federal matters. In essences, in the context of deportation, certain California convictions, which do not match the federal criminal grounds of removal may not support a deportation order.
Prior to the Court’s holding in Moncrieffe, Descamps and Olivas-Motta, immigrants with California drug convictions had very little hope in avoiding deportation. Today, individuals who are in deportation proceedings can challenge the legal sufficiency of the charges against them. Importantly, in some cases, individuals who have been previously ordered deported may be able to reopen their case.
The trio of new case law repudiates the traditional analysis of certain California drug conviction as criminal grounds for deportations. In essence, certain California control substance convictions are insufficient for federal deportation. The tasks of analyzing State criminal offenses and their baring in deportation proceedings has taken an important turn. Now the next important step is educating immigration judges that the rules have changed in deportation proceedings.
WHAT THIS MEANS FOR NON-CITIZENS IN CALIFORNIA?
1. Facing Charges: if facing drug charges in California Courts it is extremely important to understand if the specific statute will have adverse immigration consequences.
2. Convicted: if already convicted of a drug crime is important to determine if post conviction relief is appropriate. Post conviction relief can often help individuals challenge the legality of their original conviction.
3. In Deportation Proceedings: individuals who find themselves in deportation proceedings must determine if the trio of new case law is applicable.
4. Order of Deportation: in some cases it may be possible to reopen the prior deportation matters.
UNDERSTANDING THE MONCRIEFFE, DESCAMPS AND OLIVAS-MOTTA
The trio of cases, Moncrieffe, Descamps and Olivas-Motta, are truly game changers.
The breath of their application is a matter of great importance and the subject of intense litigation. To read the cases in their entirety the citation are below.
• Moncrieffe v. Holder, 133 S.Ct. 1678 (April 23, 2013)
• Olivas-Motta v. Holder, 716 F.3d 1199 (May 17, 2013)
• Descamps v. United States, 133 S.Ct. 2276 (June 2013)
BY SHAN D. POTTS
Attorney Shan D. Potts is a graduate of Berkeley University, Southwestern School of Law (J.D.) and the Universidad of Guanajuato in Mexico. Mr. Potts has been assisting businesses and individuals solve complex immigration questions for almost 15 years. He focuses on complex issues in immigration removal and criminal post-conviction. Shan is an active member of the American Immigration Lawyers Association (AILA), the California State Bar and Los Angeles Bar Association.
This article is intended for educational purpose and does not constitute legal advice, nor does it create an attorney-client relationship.
