U.S. Supreme Court Expands Rights of Permanent Residents Fighting Deportation
January 25, 2007

While it may seem contradictory that the U.S. Supreme Court would rule that a felony under state law is not a felony under federal law, that is exactly what the Court did on December 5, 2006 when it issued its decision in Lopez v. Gonzalez , 549 U.S. __, 2006 (Dec. 5, 2006).

Jose Antonio Lopez has been a lawful permanent resident in the U.S. since 1990. In 1997 while living in South Dakota he was arrested, charged with, and plead guilty to, aiding and abetting the possession of cocaine – the equivalent to possessing the drug, which is a felony under South Dakota’s state law. After being released from jail upon completion of his sentence, immigration authorities initiated removal proceedings against Mr. Lopez stating that he had been convicted of an “aggravated felony” under the Immigration and Nationality Act (INA). Any noncitizen – lawful permanent resident found guilty of an aggravated felony can be deported under federal law and is ineligible for relief from deportation based on length of residence or family ties/hardship. Consequently, Mr. Lopez was ordered removed by the Immigration Judge, with the order upheld by the Board of Immigration Appeals and the U.S. Circuit Court of Appeals for the 8th Circuit.

The case was eventually brought before the U.S. Supreme Court and was decided on December 5, 2006. In making its decision, the Court looked to the definition of “aggravated felony” under federal law and the Controlled Substance Act (CSA). The government argued that Mr. Lopez should be considered an aggravated felon based on the fact that included in the definition of “aggravated felony” is a conviction for the “illicit trafficking in a controlled substance–including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code).” However, the Court disagreed, ruling that Mr. Lopez is not an “aggravated felon” because the element of commercial dealing or selling is not present in his state conviction of aiding another person to possess a drug nor is it present in the equivalent charge of possession. The Court then noted that under the CSA (federal statute), Mr. Lopez’s possession crime would be considered a misdemeanor. Ultimately, the Court overturned the Court of Appeals and remanded the case for further proceedings before the Immigration Judge.

What does this mean for the average, U.S. permanent resident (noncitizen)? Well, assuming that he or she is law-abiding and stays out of trouble, then nothing. However, if the permanent resident has a run-in with the law for drug possession, this Supreme Court decision could be the difference between being automatically subject to removal/deportation and being allowed to make a case for relief from deportation to remain in the U.S.

The Court basically established that a charge of simple drug possession is not an aggravated felony under federal law even if it is considered a felony under state law. This does not mean that immigration authorities cannot initiate removal proceedings against a permanent resident that has been convicted of drug possession. However, it does mean that the permanent resident will at least have a chance to assert a defense in such proceedings, such as “cancellation of removal”, where the individual’s length of residence and family ties/hardship – among other factors, can be taken into account.

Copyright © 2007-2008, By Law Offices of Richard Hanus, Chicago, Illinois