Precedent-setting Liao v. Rabbett

Is a drug possession an aggravated felony?

Scott Bratton handled this case for Margaret Wong and Associates. In Liao v. Rabbett, No. 03-4541 (6th Cir. Feb. 7, 2005), the Sixth Circuit Court of appeals was presented with the question of whether an Ohio fifth-degree felony drug possession conviction was an aggravated felony. The appeal came to the Sixth Circuit after Mr. Bratton was successful in federal district court in challenging the Board’s finding that Liao’s conviction was an aggravated felony. The Government appealed alleging that Liao’s possession of heroin conviction, a fifth-degree felony in the State of Ohio, was an aggravated felony. The Sixth Circuit agreed with Mr. Bratton’s argument that the conviction was not an aggravated felony because the maximum term of imprisonment for the offense was one year, taking it out of the federal felony classification since a felony under federal law is punishable by more than one year.

The importance of this case

The importance of this case is that it expands the class of aliens who can apply for cancellation of removal. After 2002, the Board of Immigration Appeals had taken the position that any state felony drug possession offense was an aggravated felony. Liao and many of our clients who were previously not eligible for cancellation of removal based on their Ohio fifth-degree felony drug possession convictions will now be eligible to apply for cancellation of removal. A grant of cancellation of removal allows an individual to consider residing in the United States as a lawful permanent resident. The case will also allow those who were previously precluded from applying for asylum or naturalization based on their Ohio fifth-degree felony drug convictions to now apply for those benefits. 

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