In Najera-Rodriguez v. Barr, the Court of Appeals for the Seventh Circuit, which hears appeals from the federal district courts in Illinois, Indiana and Wisconsin, held that an Illinois state conviction for possession of a controlled substance under a 720 ILCS 570/402(c) does not render a lawful permanent resident removable under the federal Immigration and Nationality Act (INA).
The INA provides, in relevant part, that lawful permanent residents can be deported (removed) if they have been convicted of a state, federal, or foreign offense that relates to a controlled substance, as defined under the federal controlled substances act. There is an exception for a single offense for possession of less than 30 grams of marijuana for personal use.
The defendant, Najera-Rodriguez, was convicted of possession of Xanax, a brand name for Alprazolam, an anti-anxiety medication that is illegal to possess without a prescription. Alprazolam is a controlled substance under both the U.S. and Illinois Controlled Substances Acts. Following conviction, an Illinois state court judge sentenced Najera-Rodriguez to probation, community service, drug and alcohol treatment, educational requirements and fines. In removal proceedings, the immigration judge ordered Najera-Rodriguez removed under the INA § 237. The Board of Immigration Appeals affirmed the immigration judge’s decision.
At first glance, the decision made sense, based on the plain reading of the applicable statutes.
The 7th Circuit Court of Appeals, however, following controlling U.S. Supreme Court precedent, applied the “categorical approach” to determine whether Najera-Rodriguez’s Illinois conviction met the federal definition, and ruled in favor of Najera-Rodriguez, vacating the removal order and remanded the case back to the BIA. In basic terms, they did so because the Illinois Controlled Substances Act lists certain substances that are not listed in the federal Controlled Substances Act, so it is possible to violate Illinois law without violating federal law. Because the categorical approach requires first looking only at the criminal statute of conviction and not the underlying facts, Najera-Rodriguez ultimately prevailed.
The categorical approach is complex and nuanced and Najera-Rodriguez highlights the importance for noncitizens to have experienced legal representation in any criminal or immigration court matters. Criminal defense attorneys should also consult with experienced immigration law practitioners when representing noncitizens to mitigate the serious immigration consequences that can result from certain convictions.
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