Justice Breyer Stays Deportation

FROM http://www.scotusblog.com/movabletype/

Supreme Court Justice Stephen G. Breyer on Wednesday delayed the imminent deportation to Pakistan of a man who is a lawful permanent resident of the U.S Harood Rashid has lived in the U.S. since 1997, his wife is a naturalized citizen and his four children are American-born citizens. He faces deportation for a conviction under Colorado state law of misdemeanor assault. That grows out of an incident in which he struck a teenager who, he has said, had “ethinically harassed him.” (The stay application was Rashid v. Gonzales, 06A557. A copy of the application can be found at scotusblog. Breyer’s order delays Rashid’s forced removal to Pakistan until after the Supreme Court can act on his pending appeal from a ruling by the Tenth Circuit Court. His petition for review contends that the Circuit Courts are split on whether a misdemeanor assault conviction constitutes an “aggravated felony” involving violence or the threat of violence, for purposes of federal immigration law and its deportation provisions. The petition presents this question: “As a question of law, was legal permanent resident alien Petitioner’s conviction of third degree misdemeanor assault an ‘aggravated felony’ for the purpose of deportation under Section 237-a-2-A-iii of the Immigration and Naturalization Act, 8 USC 1227-a-2-A-iii.” (A copy of the body of the petition can be found at scotusblog.) Although the Tenth Circuit ruled that the Colorado offense of misdemeanor assault is not a crime of violence under state law or under two federal immigration provisions, it nonetheless ruled that, in Rashid’s case, it can be treated as a violent felony because he had asserted a self-defense argument in court and, in doing so, had admitted he used force to make his defense. The Tenth Circuit initially had delayed his deportation pending Supreme Court action on his appeal there, but then changed its mind and lifted its stay. It did so after the Justice Department contended that Rashid had waived his claim that his crime in Colorado was not a crime of violence. After his conviction in Arapahoe County of assault, Rashid was sentenced to 35 days in jail. He has been held in federal cutody for more than three years under criminal charges that have now been dismissed. His attorneys have said that government officials had attempted to tie him to the war on terrorism in Afghanistant because his family has roots along the Pakistan-Afghan border. His attorneys have said that his deportation “for a simple misdemeanor county court conviction after many years of federal imprisonment wihtout trial or conviction is not fair and is not just, and is not in the public interest.”

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This is the second sign this week the Supreme Court will not take the hardest of lines in cases involving immigrants with criminal convictions.  On Tuesday, in Lopez v. Gonzales, the Court ruled, by an 8-1 vote, 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 deportation.  The Lopez decisions sounds very relevant to the issues in Rashid v. Gonzales, which also involves a state misdemeanor conviction.  My guess is that Rashid is a possible candidate for vacation and remand for further consideration in light of the decision in Lopez v. Gonzales.

KJ