Pubdate: Wed, 06 Dec 2006
Source: San Francisco Chronicle (CA)
Page A - 16
Copyright: 2006 Hearst Communications Inc.
Contact:  http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko, Chronicle Staff Writer
Note: The ruling is on line as a 23 page .pdf file at 
http://www.supremecourtus.gov/opinions/06pdf/05-547.pdf

LEGAL IMMIGRANTS CAN FIGHT DRUG-RELATED DEPORTATIONS

High Court Rules State Crimes Not Grounds for Automatic Expulsion

Legal immigrants convicted of possessing drugs aren't subject to 
mandatory deportation, even if their convictions are felonies under 
state law, the U.S. Supreme Court ruled Tuesday.

"The court is saying people with drug-possession offenses who are now 
contributing members of society should have a chance to stay in the 
country, based on their rehabilitation," said Jayashri Srikantiah, a 
Stanford law professor who filed arguments in the case on behalf of 
national civil rights and immigrants' rights groups.

Immigration lawyers said the 8-1 ruling could affect thousands of 
legal immigrants around the nation who were facing automatic 
deportation for drug crimes classified as a felonies in their states.

Under the federal government's interpretation of the law, people 
convicted of drug felonies also were ineligible for political asylum 
in the United States and faced substantially longer prison sentences 
for illegal entry if they return without permission after deportation.

Defendants still can be deported after completing their drug 
sentences, but the ruling allows them to argue to an immigration 
judge that they should be allowed to remain because of their overall 
record, family support or other circumstances. Srikantiah said 
immigrants win their cases in court more often than not when allowed 
to present those arguments.

Numerous longtime legal residents have faced automatic deportation 
because of a drug-possession conviction, according to Srikantiah's 
brief. There was a decorated Navy veteran who briefly used drugs 
after his discharge; a 23-year resident with no criminal record who 
took her lawyer's advice to admit possessing someone else's 
marijuana; a Ukrainian Jew who fled religious persecution in 1993, 
was convicted of possessing heroin in 2000, then became a college 
honor student and drug rehabilitation counselor.

The Supreme Court, in an opinion by Justice David Souter, said 
Congress made deportation automatic for crimes classified as 
"aggravated felonies," including drug trafficking, but did not intend 
the same penalty for federal misdemeanor crimes.

The government's argument -- that any state drug felony requires 
deportation -- "would often turn simple possession into trafficking, 
just what the English language tells us not to expect," Souter said. 
He said the government's position also would allow varying state laws 
to control federal sentencing and deportation decisions.

In dissent, Justice Clarence Thomas said the law required deportation 
for felony drug crimes and did not distinguish between state and 
federal convictions.

The case has no impact on deportations in California, because the 
Ninth U.S. Circuit Court of Appeals in San Francisco, which oversees 
federal cases in nine Western states, ruled in 2004 that immigrants 
convicted of felonies in their states would not be automatically 
deported if their crimes were misdemeanors under federal law. Other 
appeals courts have issued varying rulings on the issue that the 
Supreme Court resolved Tuesday.

Nationwide, according to government figures, about 7,300 legal 
immigrants were deported for drug crimes in 2005, said Robert Long, 
lawyer for the South Dakota man whose case was before the court. He 
said it wasn't known how many of them were convicted in state courts, 
but he agreed that the ruling would give thousands a chance to fight 
deportation.

Under federal law, most drug-possession charges are misdemeanors 
punishable by a year in jail or less -- with the notable exception of 
possession of crack cocaine, which is a felony under federal law and 
thus grounds for mandatory deportation. A number of states, including 
California, classify possession of drugs other than crack cocaine as felonies.

Tuesday's decision does not affect illegal immigrants, who can be 
deported simply by virtue of being in the United States. It also 
doesn't affect naturalized citizens, who are treated like all other 
citizens and cannot be deported for criminal convictions.

Long's client, Jose Antonio Lopez, became a legal permanent resident 
of the United States in 1990, has two U.S. citizen children and most 
recently ran a grocery store in Sioux Falls. He pleaded guilty in 
1997 to a state felony charge of aiding in someone else's possession 
of cocaine and was sentenced to five years in prison.

He was released after 15 months but was then found to be subject to 
mandatory deportation and was returned to Mexico in January. The 
ruling allows him to come back to the United States and challenge his 
deportation before an immigration judge.

The case is Lopez vs. Gonzales, 05-547.
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