Lopez v. Gonzales: A Window on the Shortcomings of the Federal Appellate Process

I. INTRODUCTION Several years ago, I discussed in this journal (1) the Fifth Circuit's repeated error in dismissing as frivolous several strong legal arguments, among them the contention that an alien's state felony conviction for simple possession of illegal drugs was not a "drug trafficking" (2) crime that qualified as an "aggravated felony" (3) under the relevant provisions of the Immigration and Nationality Act. (4) Several other circuits, while not classifying it as outright frivolous, had by then also adamantly rejected this argument. (5) Despite both the courts' treatment of the claim as entirely lacking merit during the 1990s, and the Fifth Circuit's mentioning the threat of sanctions to attorneys who continued to press the argument, (6) lawyers representing aliens continued to litigate the issue in virtually every circuit and, when they were unsuccessful, to seek review in the Supreme Court. Ultimately, nearly fifteen years after the issue was first decided by a federal appeals court, (7) and only after a multi-dimensional split among the circuits had developed, the Supreme Court addressed the issue. In a 2006 opinion that resoundingly rejected the position adopted by the majority of circuits, the Court held in Lopez that a state felony conviction for simple possession of drugs is not a drug trafficking crime constituting an aggravated felony under the immigration laws. (8) The fifteen-year history of the litigation over this issue--a history that ended only with the Supreme Court's decision in Lopez--presents a compelling case study of significant shortcomings in the federal appellate process. First, it demonstrates that many federal appeals courts for well over a decade gave short shrift to a compelling legal argument, which resulted in the denial of relief to an extremely large class of litigants. Second, it demonstrates that the Supreme Court failed to intervene in a timely manner despite the importance of the legal issue and the thousands of litigants affected nationwide. Third, it demonstrates the Justice Department's failure to seek Supreme Court review of an important issue even after it became clear that review at the highest level was warranted. Finally, and of particular interest to practitioners reading this article, the history of the courts' treatment of the issue presented in Lopez also demonstrates the need for counsel to preserve for appeal a legal claim that, although foreclosed by adverse precedent in a particular jurisdiction, eventually may be found by the Supreme Court to be meritorious. II. "DRUG TRAFFICKING" AS AN "AGGRAVATED FELONY" UNDER SECTION 101(a)(43)(B) OF THE IMMIGRATION AND NATIONALITY ACT Under federal immigration law, a non-citizen (including a permanent resident alien) convicted of an aggravated felony offense (9) is virtually certain to be deported from the United States (10) and, if he thereafter were to return illegally and be discovered by immigration authorities, very likely would be prosecuted in federal court under 8 U.S.C. [section] 1326 and face prison time followed by another deportation. (11) Moreover, such an alien also would face dramatically more prison time than a previously deported alien who illegally reentered without having a prior conviction for an aggravated felony. (12) As the Supreme Court explained in Lopez An aggravated felony on [an alien's] criminal record has worse collateral effects than a felony conviction simple. Under the immigration statutes, for example, the Attorney General's discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. [8 U.S.C.] [section] 1229b(a)(3). Nor is an aggravated felon eligible for asylum. [8 U.S.C.] [section] [section] 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i). And under the sentencing law, the Federal [Sentencing] Guidelines attach special significance to the "aggravated felony" designation: a conviction of unlawfully entering or remaining in the United States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for "any other felony. …