New Supreme Court Decision Helps Non-Citizen Drug Offenders

Drug crimes under immigration law have always been a major concern.  Almost all drug crimes are deportable offenses.  What is worse is that most drug crimes, other than simple possession of marijuana, are felonies under the Texas Penal Code.  As such, the immigration courts and courts of appeals around the United States have held that any drug crime that is felony under state law was an “aggravated felony” under the Immigration and Nationality Act.  This was devastating to non-citizens faced with deportation.  If you are an “aggravated felon,” you are not entitled to relief from deportation.  The only relief available would be if you could make a claim under the United Nations Convention Against Torture.

Since most non-citizens cannot make this claim, thousands of people get deported for their drug offenses.  Many times, a person caught with a simple possession amount of cocaine, ecstasy or methamphetamine would be considered an “aggravated felon” and a “drug trafficker.”  Many of the non-citizens were legal permanent residents that have been in the U.S. almost their entire life, but face certain deportation.  Some even have children and grandchildren all of whom are citizens.   Yet, despite extensive family ties and a long legal history in the U.S.,  they still get deported because of the “aggravated felon” definition that renders no available way for an immigration judge to allow them to stay.

On Tuesday, December 5, 2006, the Supreme 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. Justice David H. Souter wrote the opinion for the Court in Lopez v. Gonzales (05-547). Justice Clarence Thomas dissented.

This ruling cleared up a conflict among federal appeals courts. Four had ruled that a felony under state law that is only a misdemeanor under fedeeral 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. Lopez entereed the Au.S. illegally in 1985 or 1986s, 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 pleaded guilty to aiding and abetting possession by another person.

Although this decision does not change the landscape of deportability if the state offense is also a felony under federal law, it does create some relief for state offenses that are not felonies under federal law.  Lawyers will not have to not only analyze the state law definitions for crimes but also compare those to federal law definitions and statutes.  Knowledge of both criminal law and immigration law is paramount in representing an alien in either a criminal offense or a removal case that is based on criminal grounds.  Our firm has combined over ten (10) years of expertise, knowledge and vast experience in both areas of law, this knowledge has preserved the lives of countless clients.

Written by:
Sanjay S. Mathur
Mathur Law Offices, P.C.
www.mathurlawoffices.com (866-BE-LEGAL)