Court limits deportation for drug crimes
The Supreme Court ruled, by an 8-1 vote on Tuesday, that conviction of a drug crime that is a felony under state law but only a misdemeanor under federal law is not kind the kind of offense that triggers mandatory deportation. Justice David H. Souter wrote the opinion for the Court in Lopez v. Gonzales (05-547). Justice Clarence Thomas dissented. The case turned on the Court’s interpretation of federal law that makes deportation an automatic penalty for drug trafficking. It does not affect deportation powers under other laws criminalizing drug activity.
The ruling cleared up a conflict among federal appeals courts. Four had ruled that a felony under state law that is only a misdemeanor under federal law is not a drug trafficking crime under the Controlled Substances Act. Two others had disagreed. Federal immigration law provides for deportation for anyone convicted of a crime that is a “felony punishable under the Controlled Substances Act.” The Court ruled that “a state offense comes within [that phrase] only if it proscribes conduct punishable as a felony under” the Controlled Substances Act.
The decision came in the case of Jose Antonio Lopez, a native of Mexico. He entereed the U.S. illegally in 1985 or 1986, but became a lawful permanent resident in 1990. In 1997, he was charged in state court in South Dakota with one count of possessing cocaine and one count of a conspiracy to distribute the drug. He ultimately pleaded guilty to aiding and abetting possession by another person.
Under state law, his crime was a felony, leading to a potential prison sentence of up to five years. He was sentenced to the maximum, but actually served only 15 months. Federal officials moved to deport him to Mexico, based upon the conviction for what they considered to be an “aggravated felony.” Under federal law, however, the crime could only be punished as a misdemeanor.
A conviction for an aggravated felony under immigration law can lead to deportation, or may bar other relief, such as cancellation of a deportation ordere.
Justice Souter’s opinion said that under federal law, mere possession is not a form of “illicit trafficking” in drugs, because that “connotes some sort of commercial dealing.”
The Court had granted review of two cases on the issue, and consolidated them. In a one-sentence order, the Court on Monday dismissed the second case, Toledo-Flores v. U.S. (05=7664).
These were the only opinions of the day.
The first sentence of this post overstates the Court’s holding. Under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, a conviction for any drug offense (other than a single possession of 30 grams or less of marijuana for personal use) is a ground of removability. Accordingly, the type of offenses at issue in this case still “trigger potential deportation.”
But, such offenses will no longer trigger virtually automatic deportation. Under the Court’s holding, these offenses are not aggravated felonies and therefore do not disqualify an alien from asylum and cancellation of removal. Although aliens convicted of such offenses are removable, they can now request these forms of relief from removal if they are applicable.
Only aliens with a well-founded fear of persecution are eligible for asylum. But, any alien (with no aggravated felony conviction) who has been lawfully present in the United States for at least 7 years and has been in permanent-resident status for at least 5 years is eligible for cancellation of removal. Because cancellation is discretionary, the decision to grant or deny it depends upon a variety of factors, such as the nature of the removable offense and the alien’s family and other ties to the United States. The petitioner in this case, Jose Antonio Lopez, can now have his request for cancellation of removal decided by the immigration judge and the Board of Immigration Appeals. In his removal hearing, the immigration judge stated that he would grant such relief if Lopez were eligible.
Nonetheless, it is worth emphasizing that all drug convictions (other than the marijuana offenses mentioned above) still trigger potential deportation. Relief from removal will now be granted in some of these cases, but not in all.
Comment by Alan Viard — December 5, 2006 @ 1:13 pm