Justices review deportation rule

Drug possession, often a minor matter under federal law, is cause for expulsion in some state cases

October 04, 2006|By David G. Savage | David G. Savage,Los Angeles Times

WASHINGTON -- The Supreme Court debated yesterday whether thousands of longtime legal immigrants in the United States, including business owners and military veterans, must be deported if they have been convicted of drug possession.

At issue is how to interpret a stiff 10-year federal law that demands deportation for legal immigrants who commit "aggravated felonies." Despite the law's focus on expelling felons and drug traffickers, the government in recent years has insisted on deporting some immigrants who pleaded guilty to possessing drugs, sometimes just small amounts of marijuana.

Although those crimes are considered minor matters under federal law, in some states they are classified as felonies. Government lawyers in those states contend that the federal deportation law can be used in those cases.

Several justices voiced doubt about this approach during the oral argument yesterday.

"Isn't that very strange that Congress would have wanted a reading of the statute that would turn its definition of a misdemeanor crime into an aggravated felony for purposes of the immigration laws?" asked Justice David H. Souter.

Defending the government's approach, Deputy Solicitor General Edwin Kneedler said the law as Congress wrote it "looks to state law." If a drug crime is a felony under state law, it is a felony that leads to deportation under federal law, he said.

Chief Justice John G. Roberts told the government's lawyer, "It must give you pause that your analysis of a term `drug-trafficking' offense ... leads to the conclusion that simple possession equates with drug trafficking."

The case before the court illustrates the issue.

Jose Lopez came to this country from Mexico in 1985 and became a lawful resident. In 1997, he was married, the father of two children and owned a taco stand and grocery store in Sioux Falls, S.D., when he admitted that he told someone how to obtain cocaine.

This would be a misdemeanor under federal law, but it was a felony under South Dakota law resulting in up to five years in prison. Lopez served 15 months in prison and was released.

Federal authorities then took him into custody, and he was deported to Mexico for his crime, even though he was not convicted of buying or selling the drug.

Immigrant rights groups urged the high court to limit deportation under the federal law only to those who are drug traffickers.

"Effectively what the government is arguing is that states can banish noncitizens and can do so by enacting drug laws deciding to make a simple possession offense a felony," Robert A. Long, a lawyer for Lopez, told the justices. "It's highly unlikely Congress would have left that determination to the states."

There is no doubt, however, that Congress wanted to make it easier to deport immigrants who committed serious crimes in the United States. Once deemed guilty of an "aggravated felony," such as drug trafficking, these legal immigrants must be deported, under the terms of the 1996 law.

That in turn has focused attention on what drug crimes are deemed felonies. The government said four states -- Florida, Nevada, North Dakota and Oregon -- make it a felony to possess a small amount of marijuana.

In briefs to the court, immigrants rights groups cited the example of legal immigrants who are Gulf War veterans, owners of successful restaurants and established business owners who faced deportation because they have a state drug conviction on their records.

"We think the government is mislabeling drug possession as drug trafficking. And the consequence is that it will separate thousands of American families," said Benita Jain, lawyer for the New York State Defenders Association. She referred to cases where mothers or fathers who have children here are deported from the country.

Yesterday's oral argument, the first in the term, also featured a characteristically acerbic comment from Justice Antonin Scalia.

It came as a public defender from Houston argued that the court should rule on the parallel case of his client, Reymundo Toledo-Flores, even though he did not challenge his deportation when he was sent back to Mexico. The government said his case was moot.

The lawyer said he remains under the supervision of a judge in Houston and must abide by the rules, such as "he should not use alcohol" or associate with certain persons.

That's far-fetched, Scalia said.

"Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States. ... This is just not the real world," the justice said.

David G. Savage writes for the Los Angeles Times.

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