Pro Se Advisory for Immigrants with Multiple Drug Possession Convictions:
Instructions for Challenging Whether You Have Been Convicted of an Aggravated
Felony
Last updated October 17, 2007
This advisory is for information purposes only and is not a substitute for legal advice. The
information here may no longer be up-to-date. You should talk to a qualified immigration
expert in order to prepare your case in immigration court.
This advisory applies to you if you (1) have been convicted more than once for possession
of a drug and (2) are being charged by the Department of Homeland Security as having been
convicted of an aggravated felony because of your drug possession offenses. The advisory
includes background information on aggravated felonies and drug convictions, a sample
brief that can be completed and submitted to the Immigration Judge, and instructions for
writing and submitting the brief.
Please note that the attached sample brief addresses only the issue of whether a subsequent
drug possession offense is an aggravated felony. This sample brief does not address all
the legal issues that you might need to raise before an Immigration Judge. If you have
additional arguments that you need to make in your case, you should add those
arguments to any written briefs or oral arguments you make in immigration court.
Background Information on Aggravated Felonies and Drug Convictions
1.

Aggravated Felony as Ground for Deportation and as Bar to Relief

The Department of Homeland Security (DHS) may charge you as deportable for
having a conviction for an aggravated felony if your criminal conviction falls into categories
listed in the Immigration and Nationality Act (INA) § 101(a)(43), 8 U.S.C. § 1101(a)(43).
The aggravated felony charge would be on the Notice to Appear that you received from the
DHS. The DHS must then prove to the Immigration Judge that you were convicted of an
aggravated felony. If the Immigration Judge agrees with the DHS that you have an
aggravated felony, then you are deportable. Note that you could also be deportable for
convictions that are not aggravated felonies.
Having an aggravated felony bars you from applying for certain forms of relief, such
as cancellation of removal, asylum, and/or naturalization. If you can prove to the
Immigration Judge that you do not have an aggravated felony, then you may be eligible to
apply for that relief. Note that each form of relief has other requirements not discussed in
this advisory.
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2.

Most First-Time Simple Possession Convictions Are Not Aggravated
Felonies

One type of aggravated felony under federal immigration law is “drug
trafficking,” which includes drug offenses that would be felonies (i.e., punishable by a
sentence of more than one year) under federal law. It generally does not include state
drug possession offenses that would be misdemeanors (i.e., punishably by a year or
less) under federal law. The key issue is how the conviction would be treated under
federal law. In the case of Lopez v. Gonzales, 127 S. Ct. 625 (2006) the Supreme
Court decided that even if the state law classifies the offense as a felony, it would
generally not be a “drug trafficking” aggravated felony for immigration purposes if
the offense would not be a felony under federal law as well. A conviction for a firsttime drug simple possession offense is generally not an aggravated felony. There
are two exceptions to this rule. The first exception is for simple possession of
more than five grams of crack cocaine. The second exception is for simple
possession of flunitrazepam, a date rape drug. All other first-time possession
offenses are NOT aggravated felonies, even if classified as a felony by the state.
Non-citizens convicted of a state first-time simple drug possession offense may
therefore be eligible to apply for cancellation of removal for lawful permanent
residents, asylum and/or naturalization, and certain other forms of relief from
removal.
3.

Subsequent Possession Conviction Is Not an Aggravated Felony If Not
Prosecuted as a Recidivist Offense

As mentioned above, the Supreme Court in Lopez v. Gonzales, 127 S. Ct. 625
(2006), held that that most first-time possession convictions were not drug trafficking
aggravated felonies. There is a federal statute—21 U.S.C. § 844(a)—that increases
the punishment for a conviction for drug possession from a misdemeanor to a felony
if preceded by a prior drug conviction. The Court said that a conviction for a
subsequent offense under § 844(a) would be a conviction for an aggravated felony.
The Court also said that a conviction for a state offense that corresponded to a
recidivist conviction under § 844(a) would also be a conviction for an aggravated
felony.
In order for an offense to be a subsequent offense under § 844(a), (1) the
prosecutor must have proved a prior conviction, (2) that prior conviction must be
“final” before the subsequent possession offense was committed, and (3) government
must fulfill the requirements of § 851—to provide the defendant with notice about
the recidivist enhancement and an opportunity to challenge the fact, finality, and
validity of the prior conviction.
The DHS has been arguing that any subsequent possession conviction, at least
when the first conviction is final before the second offense, is a conviction for an
aggravated felony. The DHS argues that as long as an immigrant could have possibly
received a recidivist enhancement similar to that under federal law at § 844(a), that
immigrant is an aggravated felon.
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No circuit court has agreed with the DHS on this issue in a binding decision
yet. In fact, the First and Third Circuits have held that the defendant must have been
convicted under a statute that follows the requirements of §§ 844(a) and 851 for the
second and subsequent conviction to be an aggravated felony. See Berhe v. Gonzales,
464 F.3d 74, 85–86 (1st Cir. 2006); Steele v. Blackman, 236 F.3d 130, 137–38 (3d
Cir. 2001). In addition, the Ninth Circuit has held that a subsequent possession
conviction cannot be treated as an aggravated felony conviction at all. OliveiraFerreira v. Ashcroft, 382 F.3d 1045 (9th Cir. 2004). However, immigrants in
removal proceedings within the Ninth Circuit should also raise any arguments based
on the state disposition not meeting the requirements of §§ 844(a) and 851. The Fifth
and Sixth Circuit have addressed the finality requirement, holding that a prior
possession conviction that was not “final” under § 844(a) cannot be used to convert a
subsequent possession conviction into an aggravated felony. See Smith v. Gonzales,
468 F.3d 272, 277 (5th Cir. 2006); United States v. Palacios-Suarez, 418 F.3d 692,
700 (6th Cir. 2005). Furthermore, as discussed on pages 8–9 of the sample brief, the
decisions that the DHS often cites to support its position are no longer treated as
binding by the circuit courts that issued them.
However, the Supreme Court has not yet heard a case specifically addressing
this issue of recidivist offenses, so the law is in flux. That is why you should submit a
brief to the Immigration Judge explaining why your subsequent possession conviction
is not an aggravated felony.1
The sample brief presents arguments as to why the correct reading of the
Supreme Court’s Lopez decision and statutory law is that recidivist enhancements are
not automatic and require proof, notice and opportunity to challenge. Briefly, those
arguments are that
(1) Lopez requires courts to apply a strict federal felony standard comparing
state convictions to their federal counterparts,
(2) recidivist convictions under §§ 844 and 851 occur only if the government
fulfilled statutory proof, notice and opportunity to challenge requirements,
(3) only state convictions that correspond to the requirements under both §§
844 and 851 can be aggravated felonies,
(4) courts should interpret any ambiguity in the applicable statutes favorably
toward immigrants given that the end result—deportation—is a serious
consequence.
Using the Sample Brief
You can use the sample brief in your immigration proceeding. These
instructions will help you to fill out the brief.
Page 1 – Header
1. Fill out your name, address, and alien number in the top left corner.
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If you received an enhanced sentence for your subsequent conviction because you had already received a conviction for
possession, then the attached sample brief is not sufficient to prove to the Immigration Judge that you do not have an aggravated
felony. You would additionally need to point out any differences between the state recidivist statute you were convicted under
and the federal offense described by 21 U.S.C. §§ 844(a) and 851. You should speak to a qualified immigration expert to prepare
a brief that explains these differences.

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2. Fill out the name city and state of the immigration court.
3. Fill out your name and alien number in the “In the Matter of” box.
Pages 2-10 – A #
1. Fill out your alien number at the bottom right corner of every page in the
blank spot provided.
Page 2 – Statement of Facts
1. List the offenses that the DHS says you have been convicted of. You
should copy the following information from the Notice to Appear:
a. date of conviction and/or commission
b. statute
c. name of the offense name
d. sentence imposed.
For example: “Convicted on October 5, 2006, of N.Y. Penal Law § 220.03,
possession of controlled substance, with a 10-day sentence.”
DO NOT LIST ANY CONVICTIONS THAT THE DHS HAS NOT LISTED
IN THE NOTICE TO APPEAR.
Page 7 – Finality and State Recidivist Statutes
In the lines provided at the top of page 7, you should add, if applicable, the
sentences that are explained on pages 4–5 of this advisory about (a) the
finality of your first possession conviction and (b) the state recidivist statutes
you could have been—but were not—charged under. If neither of these
options applies to you or you are unsure what to write, leave the lines on page
7 blank.
Page 7 – (a) Finality
If your first conviction was not final before the second possession
offense was committed, then you could not have been convicted for
recidivist possession under § 844(a). For example, you could not be
charged as a recidivist under federal law if
a. the time to appeal or seek discretionary review of the first
conviction has not run out before your second possession offense
was committed (whether or not you actually appealed your
conviction),
or
b. you received a conviction for a possession offense and were later
charged with a possession that occurred before that first conviction
(this includes if you received multiple possession convictions on
the same day).
1.

If your first conviction for possession was not final as
described above before you committed the second
possession offense, then you should add the following
sentence:
Respondent could not have received a recidivist
enhancement similar to § 844 because Respondent’s
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alleged prior conviction for possession was not final
before the alleged second possession offense was
committed because__________ [insert the appropriate
phrase from the options below]:
a. “the time for appeal and/or discretionary review had
not run.”
or
b. “the second possession offense occurred before
Respondent had been convicted of the prior
offense.”
For example: “Respondent could not have received a
recidivist enhancement similar to § 844 because
Respondent’s alleged prior conviction for possession
was not final before the alleged second possession
offense was committed because the time for appeal
and/or discretionary review had not run.”
2.

If your first conviction for possession was final before
you committed the second possession offense, then do
not write a sentence about finality on page 7.

Page 7 – (b) State Recidivist Statutes
Most states have some way of enhancing sentences for recidivist offenders
either through enhancements for specific types of repeat possession offenses,
for controlled substances offenses in general, or for any subsequent state
misdemeanor or felony offense. Since you were not charged as a recidivist or
repeat offender under those statutes, the point you’re making here is that the
prosecutor had the choice to try to get a recidivist enhancement and he did not
actually get that enhancement. The court should honor that choice and also
recognize that the prosecutor may not have pursued the recidivist
enhancement because your prior conviction was not valid in some way.
1. In the lines provided at the top of page 7, let the Immigration Judge know
that the state where you were convicted has a recidivist enhancement
statute(s) that you could have been charged under. To do this:
a. Look up the state where you received your subsequent possession
conviction in the chart on pages 7–10 of this advisory entitled “State
Recidivist Provisions” (please note that this chart may be incomplete).
b. Compare your conviction with the convictions that can receive
recidivist enhancements in that state.
c. If you find a recidivist enhancement statute that could have applied to
you, write the following sentence in the blank on page 7 (if you wrote
a sentence addressing finality, then this sentence should follow the
finality sentence):
“Respondent was not charged as a recidivist offender under the state’s
recidivist law. See ____________ [insert the statute number(s) and
parenthetical(s) from the chart].”
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For example, if you were convicted twice of marijuana possession in Alabama
but did not receive a recidivist enhancement, you would write: “Respondent
was not charged as a recidivist offender under relevant state law. See Ala.
Code § 13A-12-213(a)(2) (recidivist enhancement for second and subsequent
marihuana possession offense).”
2. If you cannot find a recidivist enhancement statute that you could have
been charged under for that state, do not write a sentence about state
recidivist statutes on page 7.
Page 10 – Conclusion
1. If you wrote sentences on page 7, rewrite them in the lines provided at the top of
page 10.
For example: “Respondent could not have received a recidivist enhancement
similar to § 844 because Respondent’s alleged prior conviction for possession was
not final before the alleged second possession offense was committed because the
time for appeal and/or discretionary review had not run. Respondent was not
charged as a recidivist offender under relevant state law. See Ala. Code § 13A12-213(a)(2) (recidivist enhancement for second or subsequent marihuana
possession offense).”
2. If you did not write anything on page 7, then you should not write anything in this
blank space on page 10.
Page 10 – Signature
1. Write the date on the line after “Date.”
2. Sign your name on the line above “Respondent Name.”
3. Print your name on the blank space after “Respondent Name.”
Certificate of Service
The last page of the sample is the Certificate of Service. If you are filing your motion
before your court date, then fill out the Certificate of Service on both the Immigration
Judges’ and DHS’ copy.
1. Fill out the name city and state of the immigration court.
2. Fill out your name and alien number in the “In the Matter of” box.
3. Fill out your name, the date on which you submitted the brief, and DHS’ address
(which should be on your Notice to Appear) in the short paragraph.
4. Place a check or “x” next to the method by which you submitted your brief to
DHS.
5. Sign your name on the line above “Respondent’s Name.”
6. Print your name on the blank space after “Respondent’s Name.”
Submitting the Brief
You should file the brief with the Immigration Court and with DHS at least ten days
before your next hearing date. Bring copies with you to the hearing just in case they did not
receive them yet. It should be signed, stapled, and two-hole punched at the top.
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State Recidivist Provisions Chart
Look up the state where you received your subsequent possession conviction and compare your
conviction with what convictions can receive recidivist enhancements in that state. If you think
you could have been charged as a recidivist in that state, follow the directions on page 5 of this
advisory on how to fill out the lines at the top of pages 7 and 10 of the sample brief with that
information. Please note that this chart does not necessarily include all states or all recidivist
or repeat offender statutes. The chart may be incomplete and may no longer be up-to-date.
State
Alabama

Alaska
Arizona

Arkansas
California
Colorado

Connecticut

District of
Columbia
Georgia
Hawaii
Idaho

Illinois

Recidivist statute(s) applicable to possession
- Ala. Code § 13A-12-213(a)(2) (providing recidivist enhancement for second
or subsequent marihuana possession conviction)
- Ala. Code § 13A-12-231(12) (providing recidivist enhancement for second or
subsequent conviction under Ala. Code § 13A-12-231(1)–(11))
- Alaska Stat. § 12.55.155(c)(31) (providing recidivist enhancement for
conviction of five or more class A misdemeanors)
- Ariz. Rev. Stat § 13-901.01(F) (providing recidivist enhancement for second
possession of a controlled substance conviction)
- Ariz. Rev. Stat. § 13-604 (providing recidivist enhancement for second or
subsequent felony conviction)
- Ark. Code Ann. § 5-64-401(c)(2) (providing recidivist enhancement for
second or subsequent possession of a controlled substance conviction)
- Cal. Health & Saf. Code § 11357(b) (providing recidivist enhancement for
certain third or subsequent cannabis-related conviction)
- Col. Rev. Stats. § 18-18-405 (providing recidivist enhancement for
subsequent controlled substance conviction under same statute)
- Col. Rev. Stats. § 18-18-406 (providing recidivist enhancement for
subsequent marihuana possession conviction)
- Conn. Gen. Stat. § 21a-279 (providing recidivist enhancement for second or
subsequent conviction for possession of a narcotic, hallucinogen, cannabis-type
substance)
- D.C. Code § 48-904.08 (providing recidivist enhancement for second or
subsequent controlled substance conviction)
- Ga. Code Ann. § 16-13-30 (providing recidivist enhancement for second or
subsequent controlled substance conviction)
- Haw. Rev. Stat. § 706-662 (providing recidivist enhancement for certain third
or subsequent felony convictions)
- Idaho Code § 37-2739 (providing recidivist enhancement for second or
subsequent controlled substance conviction)
- Idaho Code § 19-2514 (providing recidivist enhancement for third felony
conviction)
- 720 Ill. Comp. Stat. Ann. § 570/408 (providing recidivist enhancement for
second or subsequent controlled substance conviction)
Note: does not apply to cannabis possession
- 720 Ill. Comp. Stat. Ann. § 550/4 (providing recidivist enhancement for
second and subsequent cannabis possession conviction)

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State Recidivist Provisions Chart

State
Indiana

Recidivist statute(s) applicable to possession
- Ind. Code Ann. § 35-48-4-11 (providing recidivist enhancement for second or
subsequent conviction for marihuana/hashish/ hash oil)
Iowa
- Iowa Code § 124.401(5) (providing recidivist enhancement for second or
subsequent conviction for controlled substance possession)
- Iowa Code § 902.8 (providing recidivist enhancement for third or subsequent
felony)
Kansas
- Kan. Stat. Ann. § 65-4162 (providing recidivist enhancement for second or
subsequent conviction for possession of various controlled substances)
Kentucky
- Ky. Rev. Stat. § 218A.1415–1417 (providing recidivist enhancement for
second or subsequent conviction for possession of various controlled
substances)
- Ky. Rev. Stat. § 532.080 (providing recidivist enhancement for second or
subsequent felony conviction)
Louisiana
- La. Rev. Stat. 40:966(E) (providing recidivist enhancement for second or
subsequent marihuana possession conviction)
- La. Rev. Stat. § 40:982 (providing recidivist enhancement for second or
subsequent controlled substance conviction)
Maine
- 17-A Maine Rev. Stat. § 1107-A (providing recidivist enhancement for
cocaine possession following prior controlled substance conviction)
Maryland
- Md. Crim. Law Code Ann. § 5-905 (providing recidivist enhancement for
second or subsequent controlled substances conviction)
Massachusetts - Mass. Gen. L. ch. 94C, § 34 (providing recidivist enhancement for second or
subsequent controlled substances possession conviction)
Michigan
- Mich. C. L. § 333.7413 (providing recidivist enhancement for second or
subsequent controlled substances conviction)
Minnesota
- Minn. Stat. §§ 152.021-152.025 (providing recidivist enhancement for
subsequent controlled substances possession conviction)
Mississippi
- Miss. Code Ann. § 41-29-147 (providing recidivist enhancement for second or
subsequent controlled substances possession conviction)
- Miss. Code Ann. § 99-19-81 (providing recidivist enhancement for third or
subsequent felony conviction)
Missouri
- Mo. Rev. Stat. § 195.295 (providing recidivist enhancement for subsequent
controlled substances possession conviction)
Montana
- Mont. Code Ann. § 45-9-102(2) (providing recidivist enhancement for
subsequent conviction of marijuana possession)
- Mont. Code Ann. § 45-9-102(5) (providing
recidivist enhancement for subsequent conviction of methamphetamine
possession)
Nebraska
- Neb. Rev. Stat. Ann. § 28-416(13) (providing recidivist enhancement for
subsequent conviction of marijuana possession)
- Neb. Rev. Stat. Ann. § 29-2221(1) (providing recidivist enhancement when
two prior felony convictions received sentences of more than one year)
Nevada
- Nev. Rev. Stat. Ann. § 453.336 (providing recidivist enhancement for
subsequent convictions of controlled substances possession)

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State Recidivist Provisions Chart

State
New
Hampshire
New Mexico

New York
North
Carolina
North Dakota

Ohio
Oklahoma

Pennsylvania
Rhode Island

South
Carolina

South Dakota

Tennessee

Recidivist statute(s) applicable to possession
- N.H. Rev. Stat. Ann. § 651:6(II)(a) (providing recidivist enhancement when
two prior convictions received sentences of more than one year)
- N.M. Stat. Ann. § 30-31-23 (providing recidivist enhancement for subsequent
marijuana possession conviction)
- N.M. Stat. Ann. § 31-18-17 (providing recidivist enhancement for second or
subsequent felony conviction)
- N.Y. Penal Law § 70.70 (providing recidivist enhancement for second felony
drug conviction)
- N.C. Gen. Stat. § 14-7.1 (providing recidivist enhancement for fourth or
subsequent felony conviction)
- N.D. Cent. Code, § 12.1-32-09 (providing recidivist enhancement for drug
possession offenses under N.D. Cent. Code § 19-03.1-23(6))
Note: does not apply to possession of ½-1 ounces of marijuana
- Ohio Rev. Code Ann. § 2925.11(c)(2)(a) (providing recidivist enhancement
for second or subsequent conviction of controlled substances possession)
- 63 Okla. Stat. Ann. § 2-402(B) (providing recidivist enhancement for second
or subsequent controlled substances convictions)
- 21 Okla. Stat. Ann. § 51.1 (providing recidivist enhancement if convicted of
any crime within ten years of prior conviction for offense punishable by
imprisonment)
- 35 Pa. Stat. § 780-113(b) (providing recidivist enhancement for second or
subsequent controlled substance conviction)
- R.I. Gen. Laws § 21-28-4.01(c)(3) (providing recidivist enhancement if
pleads no contest to second or subsequent marijuana possession offense)
- R.I. Gen. Laws § 21-28-4.11 (providing recidivist enhancement for second
conviction of various controlled substance offenses)
- R.I. Gen. Laws § 21-28-4.14 (providing recidivist enhancement for third
conviction of various controlled substance offenses)
- R.I. Gen. Laws § 12-19-21(a) (providing general habitual offender
enhancement if convicted of two or more felonies arising from separate
instances and sentenced to imprisonment for a crime punishable by at least one
year in prison)
- S.C. Code Ann. § 44-53-370(d) (providing recidivist enhancement for second
or subsequent controlled substance possession conviction)
- S.C. Code Ann. § 44-53-375(A) (providing recidivist enhancement for second
or subsequent possession of methamphetamine or cocaine base)
- S.D. Codified Laws § 22-7-7 (providing recidivist enhancement for second or
third felony conviction)
- S.D. Codified Laws § 22-7-8 (providing recidivist enhancement for fourth or
subsequent felony provided a prior felony was a crime of violence)
- S.D. Codified Laws § 22-7-8.1 (providing recidivist enhancement for fourth
or subsequent felony if none of the previous felonies was a crime of violence)
- Tenn. Code Ann. § 39-17-418(e) (providing recidivist enhancement for third
or subsequent conviction of controlled substances possession)

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State Recidivist Provisions Chart

State
Texas

Utah
Vermont

Virginia
Wisconsin

Wyoming

Recidivist statute(s) applicable to possession
- Tex. Penal Code § 12.43 (providing recidivist enhancement for second or
subsequent misdemeanor conviction)
- Tex. Penal Code § 12.42 (providing recidivist enhancement for second or
subsequent felony conviction)
- Utah Code Ann. § 58-37-8(2) (providing recidivist enhancement for second
or subsequent conviction for controlled substances possession)
- 18 Vt. Stat. Ann. § 4230(a)(1) (providing recidivist enhancement for second
or subsequent conviction for marijuana possession)
- 18 Vt. Stat. Ann. § 4238 (providing recidivist enhancement for second or
subsequent conviction for controlled substances possession)
Note: does not apply to marijuana possession
- 13 Vt. Stat. Ann. § 11 (providing recidivist enhancement for fourth or
subsequent felony conviction)
- Va. Code Ann. § 18.2-250.1(A) (providing recidivist enhancement for second
or subsequent conviction for marijuana possession)
- Wis. Stat. § 961.41(3g) (providing recidivist enhancement for second or
subsequent conviction for controlled substances possession)
- Wis. Stat. § 939.62 (providing recidivist enhancement if convicted of felony
or of three misdemeanors within previous five years)
- Wyo. Stat. § 35-7-1031(c) (providing recidivist enhancement for third or
subsequent conviction for possession of small amounts of controlled
substances)
- Wyo. Stat. § 35-7-1038 (providing recidivist enhancement for second or
subsequent conviction for controlled substances possession not covered by §
35-7-1031(c))

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