Federal officials tried to deport him to the Philippines. Stock said she was able to avert the deportation by persuading the local prosecutor to downgrade the offense to disorderly conduct.
Stock said the complex list of “aggravated felonies” is the subject of regular challenges that occasionally reach the U.S. Supreme Court.
In April, the court ruled, 7 to 2, against the government in its attempt to deport a green-card holder from Jamaica, who had lived in the United States for 30 years. He was caught by Georgia police with enough marijuana for about two joints. The court ruled that “social sharing of a small amount of marijuana” was not an “aggravated felony.”
“I haven’t gone through any of these cases personally,” said Myers, the former chairman of the Joint Chiefs of Staff. “But some are pretty obvious. Picked up for a couple of joints? That’s not deportation material, in my opinion.”
The 1996 changes to immigration law were also retroactive, so they included offenses committed “at any time” in a person’s life. In addition, they banned immigration judges from exercising discretion in most deportation cases, essentially taking away their ability to grant mercy.
This resulted in deportations of green-card holders that Congress hadn’t intended, said Doris Meissner, a former commissioner of the Immigration and Naturalization Service, which handled immigration enforcement before the Department of Homeland Security was created.
She said the retroactivity clause was “almost unprecedented in our legal system.” And she said taking away a judge’s discretion eliminated any chance for a veteran such as Tepeyac.
“It’s tragic in a case of somebody like this, who is not a hardened criminal,” she said. “Pre-’96, a judge would have been able to grant relief.”
The 1996 laws did not address military service. But ICE Director John Morton issued a memo in 2011 instructing his agency to take a person’s military service into account when considering deportation.
Asked for comment for this article, ICE issued a statement saying that “ICE respects the service and sacrifice of those in military service” and that “any deportations of military veterans must be approved by a senior ICE official.”
“ICE is committed to ensuring that its limited resources are focused on the removal of those who pose a threat to public safety such as criminal aliens ,” the statement said, adding, “ICE exercises prosecutorial discretion for members of the armed forces who have honorably served our country on a case-by-case basis as appropriate.”
In February 2012, Shagin filed an appeal of Tepeyac’s deportation order, citing Morton’s memo. A U.S. immigration judge in Tucson denied the appeal in December, ruling that noncitizens must prove that they are of “good moral character” to remain in the United States.
Tepeyac was ineligible in part, the judge wrote, because U.S. immigration law says a person convicted of an aggravated felony at any time in his life “is forever barred from establishing good moral character.”
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Tepeyac now lives in a 13-by-13-foot efficiency apartment in this desert city about 300 miles south of Phoenix. He survives mainly on Costco food — cans of tuna and “Instant Lunch” noodles — brought to him by his two sisters and his mother, all U.S. citizens, who make the six-hour drive from Phoenix every few weeks.
Tepeyac is gregarious and friendly and speaks in unaccented American English, as well as Spanish. In his khaki cargo shorts, Air Jordan sneakers and Ralph Lauren shirts, he looks unmistakably American.
He washes his clothes in a concrete sink behind the house. He recently found a job, earning about $3 an hour as an English-speaking operator at a call center that provides tech-support for cellphone customers in the United States.
“I miss the way of life in the U.S.,” he said. “I miss the little things that you take for granted. I miss going to the Circle K to fill my car up with gas. I never went to New York. I always wanted to go, and I never got the chance.”
Shagin said Tepeyac’s best chance of returning to the United States would be Congress passing comprehensive immigration reform that allows deported veterans a chance to return. Or, he said, a lawmaker could introduce a “private bill” specifically for Tepeyac, reversing his deportation. He said neither seems likely.
Aware of that, Tepeyac became emotional when talking about his family in Phoenix.
“They come to visit,” he said, “and that’s the closest thing I have to touching home.”