- The Washington Times - Tuesday, December 5, 2006

The Supreme Court yesterday ruled that legal immigrants cannot be deported from the United States when convicted of minor drug-possession offenses deemed felonies by some states, but less-serious misdemeanors under federal law.

In a setback for President Bush, the high court described as wrong the administration’s interpretation of the Immigration and Naturalization Act of 1996, which said that anyone convicted of an aggravated felony could be deported. The court said the definition does not include state offenses treated as misdemeanors under federal law.

In the majority opinion written by Justice David H. Souter, the court said the administration’s interpretation “would often turn simple possession into trafficking … and that result makes us very wary of the government’s position.”

Justice Souter wrote that without some further explanation, giving a misdemeanor charge felony status “would be so much trickery.”

“Congress can define an aggravated felony of illicit trafficking in an unexpected way,” he wrote. “But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.”

In 2005, the U.S. government deported nearly 77,000 immigrants with criminal records — 7,000 of whom had arrests for drug possession.

Justice Clarence Thomas wrote the dissent, saying the majority ruling would have a significant effect on deportation proceedings involving state drug-possession offenses. He said the Immigration and Naturalization Act provides that “anyone who is convicted of an aggravated felony at any time after admission is deportable.”

“The court’s interpretation will result in a large disparity between the treatment of federal and state convictions for possession of large amounts of drugs,” Justice Thomas wrote. “And it is difficult to see why Congress would authorize a state to overrule its judgment about possession of large quantities of drugs any more than it would about other possession offenses.”

The ruling came in a case involving Jose Antonio Lopez, a Mexican national who entered the United States in 1986, became a legal U.S. resident in 1990 and operated a grocery store in Sioux Falls, S.D. In 1997, he was arrested on state charges and pleaded guilty to aiding and abetting another person in the possession of cocaine. He was sentenced to five years in prison, but released after 15 months for good conduct.

What was then the U.S. Immigration and Naturalization Service then began deportation proceedings, saying his conviction was a controlled substance violation and an aggravated felony. Mr. Lopez argued that his conviction was not a felony under the Controlled Substances Act but the U.S. Court of Appeals for the Eighth Circuit held that any drug conviction that would be a felony under state or federal law is an aggravated felony under the Immigration and Naturalization Act.

While his offense is considered a felony in South Dakota, under federal law, a first offense for possessing cocaine is a misdemeanor. The federal government argued that Congress left the door open to counting state felonies as felonies under the federal Controlled Substances Act, which would make them a crime that could trigger deportation under the Immigration and Naturalization Act.

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