Supreme Court Limits Automatic Deportation for Drug Crimes

Via Scotus Blog, the Supreme Court ruled for a drug defendant today, blocking his deportation. The case is Lopez v. Gonzales, opinion (html) here.

Shorter version: If the crime of conviction is a felony under state law but only a misdemeanor under federal law, it's not an aggravated drug felony and therefore doesn't trigger automatic removal.

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.

Put another way, removal is still possible for drug crimes that are misdeanors under federal law, but not mandatory. This is important because with automatic removal, one cannot request asylum or cancellation of removal.

With the Court's ruling today, those convicted of crimes for which removal is possible but not mandated, can still request asylum or cancellation of removal.

From a Scotus commenter:

Only aliens with a well-founded fear of persecution are eligible for asylum. But, any alien (with no aggravated felony conviction) who has been lawfully present in the United States for at least 7 years and has been in permanent-resident status for at least 5 years is eligible for cancellation of removal. Because cancellation is discretionary, the decision to grant or deny it depends upon a variety of factors, such as the nature of the removable offense and the alien's family and other ties to the United States. The petitioner in this case, Jose Antonio Lopez, can now have his request for cancellation of removal decided by the immigration judge and the Board of Immigration Appeals. In his removal hearing, the immigration judge stated that he would grant such relief if Lopez were eligible.

Nonetheless, it is worth emphasizing that all drug convictions (other than the marijuana offenses mentioned above) still trigger potential deportation. Relief from removal will now be granted in some of these cases, but not in all.

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