To qualify as an "aggravated felony" under the Immigration and Nationality Act, 8 U.S.C.S. § 1101 et seq., a defendant must have been actually convicted of a crime that is itself punishable as a felony under federal law. The mere possibility that a defendant's conduct, coupled with facts outside of the record of conviction, could have authorized a felony conviction under federal law is insufficient to satisfy the statutory command that a noncitizen be convicted of an aggravated felony before he loses the opportunity to seek cancellation of removal. 8 U.S.C.S. § 1229b(a)(3).
Petitioner was convicted by Texas courts, in separate trials, of possession of less than two ounces of marijuana and possession without a prescription of one tablet of anti-anxiety medication. The U.S. Government initiated removal proceedings against him. Petitioner conceded that he was removable, but claimed he was eligible for discretionary relief from removal. An immigration judge (IJ) found that petitioner was not eligible for relief because his second conviction was an "aggravated felony" under the law. The Board of Immigration Appeals and the U.S. Court of Appeals for the Fifth Circuit upheld the IJ's determination.
Was the petitioner’s second conviction an aggravated felony?
The Supreme Court reversed the court of appeals' judgment. Although the State of Texas could have charged petitioner as a recidivist in his second trial, it did not do so, and his second conviction in state court was therefore not punishable as a felony under federal law. The conviction itself was the starting place, not what could have been charged, and immigration courts were not allowed, ex post, to enhance a state offense of record just because facts known to the court would have authorized a greater penalty. In short, the Court held that second or subsequent simple drug possession offenses were not aggravated felonies when the state conviction was not based on the fact of a prior conviction.