Court Victory Could Help Immigrants Convicted of Drug Possession

A Coloradan's recent victory in the Tenth Circuit Court of Appeals could have major implications for other immigrants convicted of drug possession in this state, lawyers say.

The July 31 ruling in the case of Johnson v. Barr "explains that no simple possession offense in Colorado makes a green-card holder deportable," says Hans Meyer, the Denver immigration lawyer who litigated the case for three years. "That’s really important, because the immigration courts were getting the analysis wrong for years."

"Decisions like this are usually a big deal for Coloradans trying to avoid deportation on those specific grounds," explains Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.

Prior to the ruling, immigrants convicted of simple controlled-substance possession charges in Colorado were considered automatically deportable, a relic of the federal government's hard stance against drugs that began decades ago. Now, however, green-card holders and undocumented immigrants may have a chance to stay in this country.

Meyer's client, Everette Johnson, a fifty-year-old Bahamian national, became a green-card holder in 1977 when he was a child. He grew up in Colorado, eventually becoming a carpenter. In 2016, the Colorado resident pleaded guilty to simple possession of hydrocodone, a schedule II controlled substance. Based on that conviction, Immigration and Customs Enforcement detained Johnson at the Aurora Contract Detention Facility in September 2018. An immigration judge ordered Johnson deportable based on that conviction, and the Board of Immigration Appeals did not overturn his order. Johnson was deported last December and is currently living in the Bahamas, but his mother and other extended family members still live in the U.S.

In its ruling, the Tenth Circuit determined that the immigration judge had erred in concluding that Johnson was deportable based on his simple possession conviction. That's because Colorado law criminalizes drugs in a broader manner than does federal law, and immigration rules mandate that individuals can only be deported if they've been convicted of violating a law that exactly matches a law at the federal level.

That rule is in place to ensure that immigrants don't have to be re-tried in immigration court in order to determine whether their conviction in a specific state merits deportation. "It prevents these mini-trials in front of immigration court, and it allows for certainty," says Reichlin-Melnick.

As a result, the Tenth Circuit ruled that Johnson's conviction for possession of hydrocodone under Colorado law couldn't be used to deport him. "It was just a question of pure technical law, and that’s where immigration courts had the wrong analysis," says Meyer. "Unfortunately, that error and analysis were having horrific consequences for human beings."

Now, some immigrants who have been deported, denied their green cards or become the focus of ICE's unwanted attention solely because of a simple possession conviction in Colorado may be able to have their cases revisited and apply for relief.

"It doesn’t mean that every single person can win a case, but it means that, in some situations, people may be able to go back to court and file a motion to return them to their green-card status," says Meyer.

Until now, drug offenses had been considered the only convictions that are essentially unfixable in immigration court. "It's the equivalent of a death-penalty sentence in immigration law. There was no coming back from it," says Meyer. "It's been hard for thirteen years to tell people I can't help them."

In immigration court, a judge can waive many other convictions, depending on the circumstances — just not drug offenses, including simple possession, owing to a law put in place by Congress in 1996.

"It was during the height of the War on Drugs and the tough-on-crime ethos of the mid-’90s that led to these rules, which were extraordinarily harsh on anyone convicted of any controlled-substance offense," says Reichlin-Melnick.

"If you are undocumented, it didn’t matter if you were here for 25 years and you were the second coming of the messiah," adds Meyer. "It didn’t matter who you were or what you had done because of that simple possession crime, no matter how old, how sympathetic or contextualized...

"Now it gives us a chance, which is pretty big."

The Department of Justice did not return a request for comment on the ruling. Read it here: