Justices Hear Case on Immigrant Drug Offenders

By Charles Lane
Washington Post Staff Writer
Wednesday, October 4, 2006

The Bush administration urged the Supreme Court to declare that legal immigrants can be deported for drug offenses that are felonies in some states but only misdemeanors under federal law, as the court heard its first oral arguments of the new term yesterday.

At issue are provisions of the 1996 immigration law that require any noncitizen guilty of an "aggravated felony" to be sent back to his country of origin, with no chance to ask for leniency. The law defines "aggravated felony" to include any drug-trafficking offense that is a "felony punishable under" federal drug laws.

Federal appeals courts, however, have differed as to that language's precise meaning. Some have upheld deportations based on state felonies, such as simple drug possession, that would not be felonies under federal law.

The seemingly technical dispute could have real-world consequences for thousands of green-card holders. In 2005, the United States deported about 77,000 immigrants with criminal records, of whom about 9.5 percent had arrests for drug possession, according to the Justice Department.

A Justice Department lawyer, Edwin S. Kneedler, said the court should read the statute to require deportation for felony state drug-possession convictions.

"Because the petitioner's underlying conduct here was punishable under [federal law], and was a felony under state law, they were properly found to have committed aggravated felonies," he told the justices, according to a transcript of the argument released yesterday by the court.

It was the first time the court has released same-day transcripts of oral argument on its Web site, http://www.supremecourtus.gov/ , under a policy announced last month.

But several justices asked Kneedler whether that was a strained reading of the statute.

"[I]t must give you pause that your analysis is of a term, 'drug-trafficking crime' or 'illicit trafficking,' and your theory leads to the conclusion that simple possession equates with drug trafficking," Chief Justice John G. Roberts Jr. said.

Kneedler replied that "a lot of state statutes dealing with drugs do not, are not patterned directly after the federal statute, and there is no reason why Congress would have insisted that they do so in order for this statute to operate sensibly."

The case is an appeal by Jose Antonio Lopez, a Mexico native who entered the United States illegally 20 years ago to pick tomatoes. He became a legal resident in 1990 and later opened two small businesses in South Dakota.

In 1997, state prosecutors there indicted him on charges of cocaine distribution and of aiding and abetting cocaine possession. He pleaded guilty to the possession charge and served 15 months of a five-year sentence. Since his release from prison, federal authorities have been trying to deport him under the aggravated-felony law.

Lopez, who has a wife and two U.S.-citizen children, voluntarily left for Mexico earlier this year. But his case is not moot, because if he wins, he would be permitted to seek a cancellation of his deportation order and return legally to the United States.

Lopez's attorney, Robert A. Long Jr., told the court that the administration's position would undermine the uniformity of national immigration rules, because "what it is arguing is that states can banish noncitizens and can do so by enacting drug laws deciding to make a simple possession offense a felony."

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