Justices uphold deporting alien for car theft

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The Supreme Court yesterday sided with the Bush administration in a case the government says could have a "substantial effect on the administration of immigration laws," ruling that a foreign national and legal U.S. resident convicted for car theft can be deported.

In the near-unanimous opinion, the high court overturned a ruling by the 9th U.S. Circuit Court of Appeals in San Francisco, which rejected government arguments that under the 1996 Immigration and Nationality Act (INA), aliens can be deported for a category of aggravated felonies called "theft offenses" for which the punishment is at least one year in prison.

The appeals court had vacated an order by a U.S. immigration judge that the 2002 conviction of Luis Alexander Duenas-Alvarez constituted an aggravated felony and ruled that the Peruvian-born immigrant and legal U.S. resident since 1998 could not be deported.

But the Supreme Court, in an 18-page opinion, said U.S. immigration law provides for removing a foreign-born national convicted of a theft offense, including aiding and abetting, when the term of imprisonment is at least one year.

The high court agreed that a conviction on state charges of car theft rose to the level envisioned by Congress when the INA was passed.

"To find that state law creates a crime outside the generic definition of a listed crime in a federal statute requires a realistic probability, not a theoretical possibility, that the state would apply its statute to conduct falling outside the generic definition," Justice Stephen G. Breyer said in writing the opinion.

Joining Justice Breyer were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, David H. Souter, Clarence Thomas, Ruth Bader Ginsburg and Samuel A. Alito Jr. Justice John Paul Stevens sided with his colleagues on three of four issues under debate, but he said the court should withhold comment on the issue of California law until after the appeals court has addressed it.

In 2002, Duenas-Alvarez pleaded guilty to violating the California Vehicle Code, which makes it "illegal to take a vehicle without the owner's consent or to aid or abet in such a taking." He was sentenced to three years in prison.

The Department of Homeland Security sought Duenas-Alvarez's deportation based on the INA. Theft offenses are one type of crime included in the category of aggravated felonies for which the government can deport aliens.

In February 2004, Homeland Security initiated removal proceedings, and a U.S. immigration judge ruled that the California offense of unlawful driving or taking of a vehicle was a theft offense and ordered Duenas-Alvarez removed to Peru. The Board of Immigration Appeals dismissed Duenas-Alvarez's appeal.

The 9th Circuit overturned the deportation order, saying that because the California statute allows for convictions based solely on aiding and abetting, conviction under the statute did not necessarily mean Duenas-Alvarez had committed a theft offense.

But U.S. Solicitor General Paul D. Clement, in arguing the case for the government, called the appeals court ruling "incorrect," saying Duenas-Alvarez's case provided the ideal situation with which to clarify federal immigration law.

In court papers, Mr. Clement said a Supreme Court decision on the matter would directly affect an estimated 8,000 immigrants in the 9th Circuit who have been charged with theft offenses.

He argued that the 9th Circuit ruling was in conflict with decisions of other courts of appeals, and if left unreviewed, "it will have a substantial effect on the administration of immigration laws."