BREAKING NEWS 2006 Court limits deportation for drug crimes

The Supreme Court ruled, by an 8-1 vote on Tuesday, that conviction of a drug crime that is a felony under state law but only a misdemeanor under federal law is not kind the kind of offense that triggers potential deporation. Justice David H. Souter wrote the opinion for the Court in Lopez v. Gonzales (05-547). Justice Clarence Thomas dissented. The ruling cleared up a conflict among federal appeals courts. Four had ruled that a felony under state law that is only a misdemeanor under federal law is not a drug trafficking crime under the Controlled Substances Act. Two others had disagreed. The Court had granted review of two cases on the issue, and consolidated them. In a one-sentence order, the Court on Monday dismissed the second case, Toledo-Flores v. U.S. (05=7664). These were the only opinions of the day.

Click here for a link to the Lopez opinion.  The case turned on the Court’s interpretation of federal law that makes deportation a penalty for drug trafficking. It does not affect deportation powers under other laws criminalizing drug crimes. The ruling cleared up a conflict among federal appeals courts. Four had ruled that a felony under state law that is only a misdemeanor under federal law is not a drug trafficking crime under the Controlled Substances Act. Two others had disagreed. Federal immigration law provides for deportation for anyone convicted of a crime that is a “felony punishable under the Controlled Substances Act.” The Court ruled that “a state offense comes within [that phrase] only if it proscribes conduct punishable as a felony under” the Controlled Substances Act. The decision came in the case of Jose Antonio Lopez, a native of Mexico. He entereed the U.S. illegally in 1985 or 1986, but became a lawful permanent resident in 1990. In 1997, he was charged in state court in South Dakota with one count of possessing cocaine and one count of a conspiracy to distribute the drug. He ultimately pleaded guilty to aiding and abetting possession by another person. Under state law, his crime was a felony, leading to a potential prison sentence of up to five years. He was sentenced to the maximum, but actually served only 15 months. Federal officials moved to deport him to Mexico, based upon the conviction for what they considered to be an “aggravated felony.” Under federal law, however, the crime could only be punished as a misdemeanor. A conviction for an aggravated felony under immigration law can lead to deportation, or may bar other relief, such as cancellation of a deportation ordere. Justice Souter’s opinion said that under federal law, mere possession is not a form of “illicit trafficking” in drugs, because that “connotes some sort of commercial dealing.”  Click here for more on the case.

Here is a preliminary analysis of Lopez from the NYSDA Immigrant Defense Project:  The Supreme Court in Lopez v. Gonzales found that the federal government was wrong to apply the “drug trafficking” aggravated felony ground to the state felony drug possession conviction at issue in this case. The Court’s decision means that a noncitizen convicted for the first time of a state felony simple drug possession offense (with the exception for persons convicted of possession of more than five grams of crack cocaine or any amount of flunitrazepam) has NOT been convicted of an “aggravated felony” for immigration purposes. That person may therefore no longer be found ineligible to apply for INA 240A(a) cancellation of removal, asylum, and/or naturalization based on aggravated felony eligibility bars. This is true even in cases arising in federal circuits such as the First, Second, Fourth, Fifth, Eighth, Tenth, and Eleventh Circuits, where courts had previously found that such state felony possession offenses may be deemed aggravated felonies. Left unresolved by today’s Supreme Court opinion is the question of whether a state simple possession drug offense preceded by a prior drug conviction may be deemed an aggravated felony based on federal law providing that a possession offense preceded by a prior final drug conviction may be prosecuted as a felony under federal law. The NYSDA Immigrant Defense Project will shortly prepare and post detailed practice advisories for federal and state criminal defense practitioners, and for immigration lawyers and immigrant advocates, representing immigrants whose criminal or immigration cases may be affected by today’s decision.   The advisory will soon be posted here.

KJ