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In light of the Supreme Court's decision in Lopez v. Gonzales, the next question for the courts is whether a second drug possession offense is a drug trafficking offense and thus an aggravated felony.
 
The Board of Immigration Appeals (BIA) has never issued a published decision on this question, but it has issued many unpublished decisions ordering removal under such circumstances. When those cases are appealed to the federal circuit courts, the government typically requests remand to the BIA, even where the individuals are detained.  
 
The National Immigrant Justice Center has three such cases pending at the Seventh Circuit Court of Appeals which have been consolidated as Fernandez et. al. v. Gonzales.  One of the three cases deals with an administrative removal order, meaning that the immigrant never appeared before an immigration judge or sought review by the BIA.
 
The National Immigrant Justice Center worked extensively with other advocates, particularly the Immigration Defense Project, in preparing the opening brief for this case, which is likely to be the lead case on the issue nationwide.