Posted by Shreya Mandal on 12/12/06

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Good news: Supreme court decision ensures that thousands of
immigrants will at least be entitled to an immigration
hearing rather than facing automatic deportation. Defense
attorneys and criminal appeal attorneys should be
encouraged to prepare comprehensive written and oral
mitigation on behalf of those who have been convicted of
non-violent drug felony offenses, in advance of any
immigration hearing,especially for first-time offenders.
Low-income immigrants should also be entitled to low-cost
comprehensive mitigation advocacy presented to immigration
judges.

See below.

From Families Against Mandatory Minimums Legal News:

Supreme Court inserts discretion in deportation cases

12/5/06

On December 5, the Supreme Court held by an 8-1 vote in
Lopez v. Gonzalez that the government cannot automatically
deport a noncitizen when the person has been convicted of a
state felony drug crime that would otherwise be a
misdemeanor under federal law. The decision will not
eliminate the possibility of deportation; rather, it will
give noncitizens a chance to challenge the government’s
decision to seek deportation.

The petitioner, Jose Antonio Lopez, was a permanent legal
resident of the United States when he was convicted in
South Dakota state court of helping another person possess
cocaine. Although South Dakota classifies this offense as a
felony, federal law treats the offense as a misdemeanor.

After serving 15 months in state prison, Lopez’s case was
picked up by the Immigration and Naturalization Services.
The Immigration and Nationality Act (INA) authorizes
automatic deportation when a noncitizen commits an
aggravated felony such as a drug trafficking crime. But the
statute does not define a “drug trafficking crime,”
referring to a criminal code that defines it as “any felony
punishable under the Controlled Substances Act” (CSA). The
government reasoned that Lopez’s state felony drug
conviction should be enough to trigger deportation under
the INA, using an argument that strained the plain meaning
of the statute. The Court disagreed, holding that a state
drug felony can only trigger deportation under the INA if
the conduct is also a felony under the federal CSA.

In addition to automatic deportations, the Lopez decision
could affect immigrants seeking asylum or legal reentry to
the U.S. because immigration law bars such avenues for
immigrants convicted of an aggravated felony. Lopez should
also resolve the widespread circuit split “about the proper
understanding of conduct treated as a felony by the State
that convicted a defendant of committing it, but as a
misdemeanor under the CSA.” Nearly every circuit has based
sentencing guidelines decisions on this faulty
interpretation of state felonies. FAMM will continue to
report on this important legal decision as its impact
becomes clearer.

Click here to read the Supreme Court's decision in Lopez v.
Gonzales.
http://www.supremecourtus.gov/opinions/06pdf/05-547.pdf

For more in depth analysis of the decision, visit the
Supreme Court's blog.
http://www.scotusblog.com/movabletype/archives/2006/12/
court_limits_de.html

Mitigation Services

Immigration Mitigation in light of Lopez v. Gonzalez, 12/12/06, by Shreya Mandal.

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