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December 6, 2006 - San Francisco Chronicle (CA)

Legal Immigrants Can Fight Drug-Related Deportations

High Court Rules State Crimes Not Grounds for Automatic Expulsion

By Bob Egelko, Chronicle Staff Writer

Return to Drug War News: Don't Miss Archive

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.

Note: The full ruling is on line at:

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