Federal Appeals Court Vacates Immigration Orders in Marijuana Case, Questions Whether Conviction Counts as Aggravated Felony
- The Ninth Circuit Court of Appeals vacated immigration orders against Omar Rolando Ricardo Jacques, finding that his due process rights were violated due to improper notice during his appeal process.
- Jacques, convicted for possessing marijuana with intent to distribute, was detained by ICE after serving a suspended sentence and probation, but immigration judges twice granted him withholding of removal, which was appealed by DHS.
- The court highlighted uncertainty over whether Jacques' Utah marijuana conviction qualifies as a drug-trafficking aggravated felony, referencing a Supreme Court decision that similar state convictions do not automatically qualify if they don’t require payment or more than a small amount of marijuana.
- The case was remanded to the Board of Immigration Appeals to issue new notices and briefing schedules so Jacques can further argue his case, while a dissenting judge maintained that the conviction should be considered an aggravated felony regardless of notice issues.
A federal appeals court has vacated immigration orders against a man convicted of possessing marijuana with intent to distribute, finding that the government violated his due process rights while raising an unresolved question over whether his conviction qualifies as a drug-trafficking aggravated felony.
The U.S. Court of Appeals for the Ninth Circuit issued the published opinion (PDF) Friday in Jacques v. Blanche, granting Omar Rolando Ricardo Jacques’ petition for review and sending the case back to the Board of Immigration Appeals (BIA).
Jacques, a Jamaican citizen who entered the United States at age 17 in 2004, was arrested during a Utah traffic stop in August 2021. Police found at least 20 pounds of marijuana in the trunk of a vehicle in which Jacques was a passenger.
He pleaded guilty to misdemeanor possession of a controlled substance with intent to distribute and received a suspended 364-day sentence and two years of probation. Upon his release from state custody, he was immediately detained by Immigration and Customs Enforcement (ICE).
An immigration judge twice granted Jacques withholding of removal, finding in part that his marijuana conviction was not a “particularly serious crime” that would disqualify him from that protection. The Department of Homeland Security (DHS) appealed both decisions.
According to the Ninth Circuit, however, the BIA, DHS or both repeatedly sent notices and briefing schedules to incorrect detention addresses, preventing Jacques from participating in the appeals. The court found that the failures violated his due process rights and potentially affected the outcome of the proceedings.
Central to the court’s finding of potential prejudice was whether Jacques’ Utah marijuana conviction should be classified as a drug-trafficking aggravated felony under federal immigration law.
The court pointed to a 2013 U.S. Supreme Court decision holding that a state marijuana distribution conviction does not automatically constitute a drug-trafficking aggravated felony when the underlying statute does not require payment or more than a small amount of marijuana.
Similarly, the Ninth Circuit said Utah’s statute does not clearly require either remuneration or more than a small amount of marijuana. As a result, the court said it is “not immediately clear” whether a conviction under the law categorically qualifies as a drug-trafficking aggravated felony.
The majority emphasized that it was not resolving that question, noting that no published federal appellate decision has yet determined whether the Utah statute categorically constitutes such an aggravated felony. Instead, the uncertainty meant Jacques could potentially have made arguments affecting the outcome had he received proper notice.
The court vacated the BIA orders and directed the agency to issue new notice and a new briefing schedule, allowing Jacques to present arguments supporting the immigration judge’s original decision granting him withholding of removal.
Circuit Judge Mark Bennett dissented, arguing that Jacques’ conviction does qualify as an aggravated felony involving drug trafficking and that the notice errors therefore did not prejudice him. The majority opinion was written by Circuit Judge Gabriel Sanchez.