In Lopez v. Gonzales, decided on December 5, 2006, the Supreme Court, in an 8-1 decision, held that drug possession convictions that qualify as state felonies, but would not qualify as felonies under federal law, are not “aggravated felonies” as defined under INA section 101(a)(43)(B) (“drug trafficking crimes”). The Court resolved a split among the federal circuit courts, unequivocally stating that, “Unless a state offense is punishable as a federal felony it does not count.”
The Court’s decision means that a noncitizen convicted for the first time of a state felony simple drug possession offense (except for persons convicted of possession of more than five grams of crack cocaine or any amount of flunitrazepam) does not have an “aggravated felony” conviction for immigration purposes. That person is therefore no longer barred from applying for INA 240A(a) cancellation of removal, asylum, and/or naturalization based on aggravated felony eligibility bars.