Immigration Cases Argued in U.S. Supreme Court Today

October 3, 2006

Can a State Felony Drug Conviction Equivalent to a Federal Misdemeanor Be a “Removable” Offense? Lopez v. Gonzales (Docket No. 05-547) (8th Circuit) and Toledo-Flores v. United States (Docket No. 05-7664) (5th Circuit) were argued before the Supreme Court today.

The Immigration and Nationality Act (INA) attaches many consequences to a noncitizen’s commission of an “aggravated felony.” Not only do these crimes render the noncitizen removable, but they also bar various forms of relief from removal. The Federal Sentencing Guidelines also include specific sentencing consequences for “aggravated felonies.” The INA contains a definition of crimes categorized as “aggravated felonies.” Circuits are split as to whether this aggravated felony definition includes state law drug felonies that would only be misdemeanors under federal criminal law.

Sarah Rispin of Akin Gump wrote a preview of the case for SCOTUS blog. Here is her intro:

In the first argument tomorrow, the Court will hear a pair of cases, No. 05-547, Lopez v. Gonzales, and No. 05-7664, Toledo-Flores v. United States, addressing the meaning of the phrase “any felony punishable under the [Federal] Controlled Substances Act.” The phrase carries considerable significance because it is used to define the term “drug trafficking crime” in 18 U.S.C. § 924(c)(2), conviction for which counts as an “aggravated felony conviction” (thereby subjecting the defendant to more stringent penalties) under both the Immigration and Nationality Act (INA) and the federal Sentencing Guidelines. Robert Long of Covington & Burling will argue on behalf of petitioner Lopez, while Timothy Crooks of the Office of the Federal Public Defender for the Southern District of Texas will argue on behalf of petitioner Toledo-Flores. Deputy Solicitor General Edwin Kneedler, who has many years of experience in the SG’s office, will argue on behalf of the United States and Alberto Gonzales. For the rest of the preview, click here.

For what it is worth, the New York Times sides with the noncitizens. Click here to check out the op/ed.

BREAKING NEWS For a transcript of the argument in the case, click here.

MORE BREAKING NEWS: Here are the thoughts about the oral argument of Lory Rosenberg, former Board of Immigration Appeals member, posted on the immprof listserve:

I think aspects of the argument went fairly well. There was some typical confusion. It always strikes me how interesting it is that a panel focuses on nuances that we, out here, immersed in the issues, may not have thought so important. Bob Long started out with an argument that other sections of 924 referred to state offenses, suggesting, therefore, that Congress had not intended to include state offenses at all. Kennedy spoke up first, and appeared friendly. Alito tried to say that the terms in 1101(a)(43)(B) were being used as in a broader context and not as terms of art. There appeared to be some argreement that the statute in question was ambiguous. (This may not be so appealing to Scalia and Thomas, but I believe that Stevens, Kennedy, Ginsburg and Breyer commented on its ambiguity). As we all know, under Chevron, deference then goes to the agency’s position, assuming its reasonableness. Interestingly, Ginsburg seemed to believe that going to the agency position meant that Matter of Barrett would be given weight. But I think Barrett begs the question, doesn’t it? Also, isn’t the agency position what is being appealed in the petition — which is the Matter of Salazar/Matter of Yanez position basically that overruled Matter of L-G(II) and Matter of K-V-D-? Along those lines, there was some dispute among the justices over whether “felony punishable under the CSA” in 924(c) needed to include “felony punishable [as a felony] under the CSA” to achieve the result advocated by the petitioners. Long made the argument, that the language “described in” in (a)(43)(B) limited the scope of offenses to felones punishable under the CSA. So I think that this decision may produce some decision on what “described in” means (which is applicable elsewhere). Several justices had a difficult time imagining that Congress could have intended that there would be disparate results depending on the state in which a defendant was charged with a possession offense. There was some back and forth on what “uniformity” meant and whether the constitutional guarantee was applicable (but nothing in depth and no one mentioned the effect of an aggravated felony on naturalization). The SG, Ed Kneedler insisted that Congress intentionally set up the statute to include these disparities. At one point during the SG’s argument I actually thought that I heard a couple of the justices questioning with some surprise and concern the fact that there were other “aggravated felony” convictions that could be based on misdemeanor convictions. (The SG, Ed Kneedler, was pointing that out, e.g. theft, crime of violence, anything with at least a sentence of one year language, could be a misdemeanor). Manny Vargas heard this too and I am sure it is reflected in the transcripts. My personal impression of Alito was that he appeared to be smirking and was somewhat snide. Roberts was equally unengaging and addressed most of his comments to the issue of mootness, which is the core of the Toldeo-Flores case, since the defendant there has been deported while on supervised release. Tim Crooks did a good job with an uphill battle on a tough issue It appears that if they rule on mootness they may need to address the 2d circuit Hamdi case because Ginsburg opined that she thought it was addressing identical circumstances. I am reticent to hope, but it did strike me that there was little if any affirmative argument made from the bench that favored the interpretation that produced the disparate “Yanez” result we have at present, so perhaps there may be a slim majority for a narrow opinion.