In a published decision issued three years ago, the BIA held that it would not consider Carachuri-Rosendo’s second conviction an aggravated felony because there was no evidence that this conviction was prosecuted as a recidivist offense. Matter of Carachuri-Rosendo, 24 I&N Dec. 382, 391 (BIA 2007). The BIA recognized, however, that the Fifth Circuit, where Carachuri-Rosendo’s immigration case was located, had issued a contrary precedential decision, thus tying the BIA’s hands within that circuit.

Carachuri-Rosendo comes out of the Fifth Circuit and Escobar from the Seventh. The BIA’s precedential decision—in Matter of Carachuri-Rosendo, 24 I & N Dec. 382 (BIA 2007)—siding with the majority of the circuits that have addressed the issue governs in circuits that have not directly decided it.The petitioners, Carachuri-Rosendo and Escobar, are represented by Sri Srinivassan of O’Melveny & Myers and Geoffrey A. Hoffman of the University of Houston Law Center. The National Association of Criminal Defense Lawyers and the Center on the Administration of Criminal Law submitted separate amicus briefs in support of Carachuri-Rosend and Escobar.Several key documents for Carachuri-Rosendo are available here:–Fifth Circuit decision –Petition for certiorari –Brief in opposition –Amicus brief of the National Association of Criminal Defense Lawyers–Amicus brief of the Center on the Administration of Criminal LawKey documents for Escobar are available here:–Petition for certiorari –Brief in oppositionThe Court has not announced the exact date for oral argument but cases granted now are being scheduled for late March or early April.

The Fifth Circuit’s position stands in stark contrast to the position taken by the BIA in Matter of Carachuri-Rosendo, but, as the BIA noted in that case, the Fifth Circuit’s decision is the controlling precedent. See 24 I & N Dec. 382, 393 (BIA 2007). Though the Supreme Court, in 21 U.S.C. § 863(a).

One year after the Supreme Court issued its decision in Lopez, the Board of Immigration Appeals (BIA) applied the Lopez reasoning to removal proceedings based on an individual’s multiple convictions for state drug possession offenses. Matter of Carachuri-Rosendo, 24 I & N Dec. 382 (BIA 2007). The BIA held that “a State conviction cannot proscribe conduct punishable as recidivist possession unless the State successfully sought to impose punishment for a recidivist drug conviction.”