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Albany Legal Blog

“Crimmigration”: A Recent 2nd Circuit Ruling Could Help Immigrants with New York “Narcotic Drug” Convictions

On Behalf of | Dec 22, 2023 | Immigration

Crimmigration, the sometimes-scary intersection between federal and state criminal laws, and U.S. immigration law. More specifically, it is a body of law that has evolved in the immigration law (e.g., statutes, regulations and court decisions) that deals with criminal offenses and their effects on someone’s immigration status. The consequences of adverse “crimmigration” results for foreign nationals, either lawfully in the United States or otherwise, including dispositions that some people would consider non-serious, can be devastating (including removal / deportation from the United States).

Recently, there was a potentially welcome ray of light from the U.S. Court of Appeals for the Second Circuit, when it issued its decision in U.S. v. Minter, No. 21-3102, 2023 WL 5730084 (2d Cir. Sept. 6, 2023), a decision which “could” benefit some immigrants who have New York state convictions relating to the sale or possession of a “narcotic drug.”

What is a narcotic drug? “Narcotic drug” is a term used in New York law, and it refers to a list of drugs that New York state has designated as “narcotic drugs”, such as cocaine and heroin. (In New York, “narcotic drugs” do not include “cannabis,” “stimulants,” “hallucinogens,” or another category of drug.) In Minter, the defendant had been charged with selling a narcotic drug, and more specifically, cocaine.

So, what did the Court hold?  In sum that certain New York convictions for possession or sale of a “narcotic drug” will no longer be deportable or disqualifying drug crimes for immigration purposes.[1] This is potentially huge for some (but not all) individuals with certain New York “narcotic drug” convictions that may now be able to reopen and have dismissed old deportation orders, or defend against the government’s attempt to remove them if they are now currently in removal proceedings. In addition, some individuals who had their applications for permanent residence (i.e., a green card) or naturalization denied because of a New York “narcotic drug” conviction may now be eligible.

The only way to know for sure whether a conviction was for sale or possession of a “narcotic drug” is to identify the exact New York criminal statute an individual was convicted under. It’s not enough for some to say that he or she was convicted of a felony under whatever the name of the statute is. Many (if not most) laws have multiple sections in them, and the “crimmigration” law will not necessarily have the same adverse consequence for each section. One would need to review the criminal court documents and, potentially, the immigration case documents and decisions too.

And I cannot stress enough that the analysis above needs to be done. Not everyone will benefit from this decision, and there are enormous risks for someone to seek relief based on this decision who is not qualified for it (e.g., having their motion denied or, worse, being put on Immigration & Customs Enforcement’s (“ICE”) radar, potentially exposing themselves to arrest, detention and even removal).

There’s a lot going on in the world of immigration, and if you read the headlines, you’ll agree that not all of it is good. Every once in a while, though, there’s good news to report, and this is such an instance.

[1]  More specifically, the Court held that selling cocaine, in violation of N.Y. Penal Law § 220.39(1), is not a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e) because “New York’s definition of cocaine is categorically broader than its federal counterpart.” Slip Op. at 3. Specifically, federal law “prohibits possession of only optical and geometric isomers of cocaine, while New York’s statute prohibits possession of all cocaine isomers.” Slip Op. at 5 (emphasis in original).