By Robert L. Reeves & Nancy E. Miller

UNTIL now, it was an open question whether a non-citizen could be deprived of all relief from deportation as a result of two minor drug possession convictions.  However, today, the United States Supreme Court applied the rule of common sense and held that a non-citizen who has been convicted of a simple possession offense that has not been specifically enhanced as a result of a prior drug-possession conviction has not been convicted of a felony punishable as such under the Controlled Substance Act (CSA).  This is extremely important because a conviction under the CSA as a recidivist would render the non-citizen to be a drug trafficker which is an aggravated felony.  As such, he would be ineligible to apply for any form of relief from deportation.

That is exactly what happened to Jose Angel Casachuri-Rosendo.  Carashuri was born in Mexico but came to the United States with his parents in 1983 when he was 5 years old.  With the exception of his first five years, he spent his whole life in the United States.  At the time of his deportation hearing, his mother, two sisters, common-law wife and four children were all American citizens.  He was a lawful permanent resident.  In 2004, he pleaded guilty to possessing less than two ounces of marijuana (one cigarette) and was sentenced to 20 days of confinement by a Texas court.  In 2005, he pleaded nolo contrendre (no contest) to possessing less than 28 grams – one tablet – of Xanax without a prescription.  For this offense, he was sentenced to 10 days in jail.   Although the prosecutor could have done so, he did not seek an enhancement in the second case based on the prior conviction. In 2006, on the basis of the second conviction, DHS placed Carachuri in removal proceedings.  He applied for cancellation of removal for lawful permanent residents.  The immigration judge held that the second conviction for simple possession was an aggravated felony which made him ineligible for cancellation.  The Board of Immigration Appeals and the United States Court of Appeals for the Fifth Circuit agreed with the immigration judge.  The Supreme Court agreed to take the case in order to decide whether second or subsequent simple possession convictions are aggravated felonies when the conviction is not based on the fact of a prior conviction.  They have now ruled that they are not.

The court acknowledged the importance of determining whether or not the non-citizen has been convicted of an aggravated felony because one convicted of an aggravated felony is not eligible to apply for of cancellation of removal for lawful permanent residents (or most other forms of relief from deportation).  Aggravated felony convictions include illicit trafficking in controlled substances which is a drug trafficking crime.  A drug trafficking crime is any felony punishable under the Controlled Substance Act.  A felony is a crime for which the maximum term of imprisonment authorized is more than one year.  While simple possession is a crime under the CSA, it can be punished as either a felony or a misdemeanor.  However, a conviction for a simple possession offense after a prior conviction for simple possession (known as a recidivist simple possession) can be punished as a felony with a prison sentence of up to two years.

DHS argued that Carachuri could be found to be an aggravated felon because the prosecutor could have charged him with simple possession after a prior conviction.  However, the Supreme Court said that is not good enough.  Applying the “commonsense conception” to the relevant terms, the Court held that for a conviction to be an aggravated felony under immigration law, a state drug conviction must be punishable as a felony under federal law and it must specifically charge the existence of the prior simple possession conviction before trial or before a guilty plea. Because the prosecutor did not do so, the conviction was not an aggravated felony.

A finding that one has been convicted of an aggravated felony can spell the end of one’s life in the United States.  For that reason, it is essential to be represented by an attorney who is knowledgeable and experienced in immigration law in both the criminal and immigration court proceedings.

Robert L. Reeves, who is board-certified, has been specializing in immigration law for 27 years. He has a national reputation as an immigration rights advocate and has successfully represented more than 18,000 immigrants at the CIS and hundreds more in the United States federal courts. He is licensed to practice law before the U.S Supreme Court, the U.S Court of Appeals for the Ninth Circuit, several U.S. District Courts and California State Courts. Reeves has represented clients in numerous landmark immigration cases that have set new policies regarding CIS action and immigrants’ rights. His many successes have been published in Interpreter Releases, Immigration Briefings and AILA Monthly, which are nationally recognized immigration periodicals widely read by immigration lawyers, State Department and immigration officials. His cases are also cited in textbooks as a guide to other immigration practitioners. His offices are located in Pasadena, San Francisco, Las Vegas and Makati City. Tel. no.: 1-800-795-8009; e-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; website: www.rreeves.com. ■

By Attorneys Robert L. Reeves and Jeremiah Johnson

SUMMER is here and for many that means vacations and family trips.  However, for lawful permanent residents (green card holders) extra planning is needed for traveling outside the United States.  One particular issue that can affect a lawful permanent resident’s status is the length of time they are outside the United States.  But how long is too long?   The answer, like most answers to immigration questions, can be somewhat complicated and is very fact dependent.

First, it is important to note that a returning lawful permanent resident is not seeking admission into the U.S. for purposes of immigration law unless he or she has 1) abandoned or relinquished that status; 2) been absent from the U.S. for a continuous period in excess of 180 days; 3) engaged in illegal activity after having departed the U.S.; 4) departed from the U.S. while under removal proceedings; 5) ever committed certain criminal offenses (unless they have already been granted a waiver); or 6) is attempting to enter at place other than a normal port of entry.  So if a legal permanent resident is planning a trip for less than six months, and does not have any past criminal record, he or she can generally travel without too much concern that their immigration status could be in jeopardy.  But sometimes, trips outside the U.S. last longer than six months.  Then what?

If a lawful permanent resident is out of the U.S. continuously for more than six months but less than a year, the Department of Homeland Security (DHS) will look at a number of factors before admitting the returning lawful permanent resident.  If the resident has been outside the U.S. for longer than one year, DHS takes the position that residency has been abandoned.  But DHS’s position is not always correct.  The real question is not how many days the lawful permanent resident spent outside the U.S., but rather whether the trip was temporary.  Under immigration law, a temporary visit is fixed by some event or will end upon the occurrence of an event having reasonable possibility of concurring within a relatively short period of time.  For example, taking care of a sick relative could be considered a temporary visit that could last more than six months or a year.  If the event does not occur within a relatively short period of time, the visit will still be considered temporary if the lawful permanent resident has a continuous uninterrupted intention to return to the U.S. during the entire visit. Criteria to determine whether a trip is temporary include the lawful permanent resident’s purpose of departure; the existence of some fixed termination of visit abroad; and the objective intent to continue to permanently reside in the U.S., evidenced by family ties, job, income tax returns, club memberships, mortgages, etc.

If DHS decides a lawful permanent resident has abandoned their residency, he or she will physically be allowed to enter the U.S. to challenge that finding in immigration court.  DHS has the burden to establish by “clear unequivocal and convincing evidence” that the lawful permanent resident has abandoned her status.  DHS is represented by a trial attorney, and the lawful permanent resident has the right to obtain their own counsel as well.  During the course of the abandonment proceedings, the lawful permanent resident can work and travel until the immigration judge rules on the case.

Fortunately there are things a lawful permanent resident can do to protect their status while traveling. If a lawful permanent resident needs to be outside the U.S. for over a year in order to finish school, work abroad, care for an ailing relative, or any other of a number of reasons, the resident should consider obtaining a re-entry permit, so as to minimize the chances of abandonment.  Residents may use re-entry permits to seek to re-enter the United States if they have been absent for one year or more.  This travel document must be applied for before leaving the United States, and is usually granted for a validity period of two years.

Re-entry permit holders are still subject to inspection at the port of entry and may be denied admission if they are inadmissible.  While possession of a re-entry permit travel document evidences intent to reside in the U.S., it does not guarantee admission into the U.S.  The resident should also have a legitimate reason and supporting documentation for any departure from the U.S. for over six months.

While a re-entry permit travel document requires forethought and planning prior to leaving the U.S., the reality of life is such that not all lawful permanent residents can predict their travel plans.  As such, a resident sometimes leaves the U.S. believing that he or she will return within 6 months or one year, but circumstances force his or her to alter plans.  In such instances, the resident may be eligible for a special immigrant returning resident (SB-1) visa, which is issued at U.S. consular offices abroad.  Issuance of the returning resident visa is contingent on showing that the resident maintains the intent to reside in the U.S., and that the cause of the protracted stay out of the U.S. was beyond the control of the resident.  The resident must also show that she is eligible for the immigrant visa in all other respects.

Consular officers are reluctant to issue the returning resident visas. If a returning resident visa is refused on the grounds that a resident has given up her residence in the U.S., she may have to apply for an immigrant visa on the same basis by which she immigrated originally, if circumstances permit.

Because of the complicated issues involved, if you are a lawful permanent resident and are planning a trip abroad, are currently outside the United States or DHS is claiming that you already abandoned your residency, you should seek the advice of a trusted and experienced immigration attorney.

***

Robert L. Reeves, who is board-certified, has been specializing in immigration law for 27 years. He has a national reputation as an immigration rights advocate and has successfully represented more than 18,000 immigrants at the CIS and hundreds more in the United States federal courts. He is licensed to practice law before the U.S Supreme Court, the U.S Court of Appeals for the Ninth Circuit, several U.S. District Courts and California State Courts. Reeves has represented clients in numerous landmark immigration cases that have set new policies regarding CIS action and immigrants’ rights. His many successes have been published in Interpreter Releases, Immigration Briefings and AILA Monthly, which are nationally recognized immigration periodicals widely read by immigration lawyers, State Department and immigration officials. His cases are also cited in textbooks as a guide to other immigration practitioners. His offices are located in Pasadena, San Francisco, Las Vegas and Makati City. Tel. no.: 1-800-795-8009; e-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; website: www.rreeves.com. ■