Immigration Law- Second Drug Offense Not Aggravated Felony Merely Because of Possible Felony Recidivist Prosecution- Alsol v. Mukasey, 548 F.3d 207 (2d Cr. 2008)

Under the Immigration and Nationality Act (INA), an alien is subject to deportation if convicted of any aggravated felony.  A state misdemeanor drug offense is an aggravated felony if that offense would constitute a felony had it been charged under the Federal Controlled Substance Act (CSA).  The recidivist provision of the CSA extends the maximum allowable imprisonment for an alien who commits a second drug possession offense to two years, thus rendering the alien a felon under the CSA.  In Alsol v. Mukasey, the United States Court of Appeals for the Second Circuit considered whether a second state drug possession conviction constitutes a felony under the CSA because it could have been prosecuted as a recidivist offense.  The Second Circuit held that a second possession offense is not automatically a recidivist offense and therefore not an aggravated felony subject to immigration consequences. . .