Feature: Cases of Immigrants Deported for Minor Drug Offenses Heard at US Supreme Court This Week
The US Supreme Court Tuesday heard oral arguments in two consolidated cases that question whether immigrants who are legal US residents should face mandatory deportation for small-time offenses such as drug possession. Thousands of immigrants face such wrenching punishment, and according to the National Network for Immigrant and Refugee Rights, more than a million and a half people have been deported since the introduction of mandatory deportation for "aggravated felonies" under the 1996 Immigration and Nationality Act that is being challenged in these cases.
US Supreme Court
Many of those deported under the immigration law were in fact found guilty of serious crimes, but many others were not. In one case covered by the Drug War Chronicle, Joao Herbert, who was adopted by American parents from a Brazilian orphanage as a young child but who never applied for US citizenship, was arrested as a teenager for selling a small bag of marijuana. He was sentenced to probation, but federal authorities sought successfully to deport him under the 1996 law. Sent to a land he never knew, he scraped by for a few years as an English teacher before being gunned down by Brazilian police in 2004.
In the cases before the court Tuesday, Lopez v. Gonzales and Toledo-Flores v. US, the offenses for which the US seeks to deport immigrants are even more trivial than in Herbert's case. Jose Antonio Lopez was a Sioux Falls, SD, grocery store and taco stand owner who legally emigrated from Mexico in 1985. The married father of two children, who are US citizens, pleaded guilty to telling someone how to obtain cocaine. Such an offense is a misdemeanor under federal law, but was a felony under South Dakota law. Federal immigration officials classified his offense as an "aggravated felony" under the immigration law and deported him to Mexico.
Reymundo Toledo-Flores was arrested for cocaine possession in Texas, where it is a misdemeanor, but when he was caught trying to reenter the country he was hit with a two-year prison sentence because immigration authorities considered his Texas bust an "aggravated felony" under the immigration law. He is appealing the sentence.
"The problem here is that state law and federal law are at odds in determining the gravity of the offense," Justice David Souter said during oral arguments Tuesday. "Isn't that very strange that Congress would have wanted a reading of the statute that would turn its definition of a misdemeanor crime into an aggravated felony for purposes of the immigration laws?" he asked.
Bush administration attorneys argued that immigration officials correctly classified both cases. "The statutory definition of 'aggravated felony' encompasses large categories of criminal conduct under state law, without requiring a federal-law parallel," the US solicitor general wrote in a brief to the court.
Deputy Solicitor General Edwin Kneedler told the court Tuesday that the immigration law "looks to state law." If a drug offense is a felony under state law, it is a deportable felony under the federal law, he argued.
But three former Immigration and Naturalization Service general counsel disagreed in a friend of the court brief they submitted. "There is no clear indication that Congress intended the definition of aggravated felony to apply to drug offenses that are... misdemeanors under the federal law," they wrote.
Chief Justice John Roberts was thinking along similar lines. "It must give you pause," he told Kneedler, "that your analysis of a term 'drug-trafficking' offense... leads to the conclusion that simple possession equates with drug trafficking."
"Immigrants shouldn't be kicked out of the country for doing what the president of the United States did," said Bill Piper, director of national affairs for the Drug Policy Alliance. "It is clear that the type of drug offenses we are talking about here are not the type of offenses Congress intended when it passed that law," he told Drug War Chronicle. "It also seems like this raises equal protection issues because it looks like whether you get deported or not depends on which state you were convicted in. In those states where drug possession is a felony, you get kicked out; in those where it isn't, you don't."
Immigrant rights and civil liberties groups joined in calling on the court to reject the federal government's broad interpretation of the law, and even the Center for Immigration Studies, which generally hews to a hard line on immigration enforcement, was not overly enthusiastic about deporting small-time drug offenders. "If the state legislature has decided this is a serious crime and someone who commits it will get deported, it's not like that person didn't know it was illegal," said Dr. Steven Camarota, director of research for the group. "I don't see a problem with making those people go. In some cases, however, people plead guilty to a crime not realizing they would be subject to deportation, and that raises a fairness issue," he told Drug War Chronicle. "The whole criminal justice system is supposed to temper justice with mercy, but with immigration we've created so many exceptions and waivers that sometimes it's good to come down hard."
For Camarota, the whole debate over deporting immigrants for small-time drug offenses is "small potatoes" compared to the real immigration issues facing the country. "We are talking about a few thousand people when there are 37 million immigrants in the country," he pointed out. "There is nothing wrong with the way in which the government is approaching this, but it does seem like an awful lot of debate over something so small. We should be putting resources into general enforcement of immigration laws."
"The 1996 law is really destructive," said Arnaldo Garcia of the National Network for Immigrant and Refugee Rights. "On any given week, you have 20,000 or so legal permanent residents who committed small offenses sitting in jail under deportation proceedings. That includes things like a 20-year-old who had sex with his 17-year-old girlfriend, and it includes things like people getting arrested with small amounts of marijuana on them," he told the Chronicle. "The federal government is trying to institutionalize a double standard. Legal residents have equal rights under our court system, but after they have completed their sentences, they are then subjected to an unfair punishment -- banishment for life. This is a big crack in the foundation of equal treatment under the law."
There is little legal permanent residents can do, said Garcia. "What you can do is make sure you know the law," he said. "If you get arrested, you need to get the advice of an immigration attorney to know the consequences of the charge and whether it's a deportable offense. Some judges will work with you -- doing things like sentencing you to 364 days instead of 366, the difference between a misdemeanor and a felony -- but the INS just wants to deport your ass. I've seen people going in for their citizenship tests and immigration is waiting for them because they got busted as a teenager."
The ultimate protection from deportation under the immigration law is to become a US citizen. "That's easier said than done," said Garcia. "There is a huge backlog. I'm working with one family that submitted a reunification petition in 1994. Their case is just coming up now."
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redditPLEASE HELP
Comment posted by Anonymous on Wed, 07/23/2008 - 3:41pmMY FIANCE HAD COME TO THE UNITED STATES WHEN HE WAS 6 YEARS OLD. ABOUT 2 YEARS AGO HE GOT MIXED UP WITH DRUGS AND GOT ARRESTED FOR COCAIN THEY GAVE HIM PROP 36. WELL BEING ADDICTED AND HOMELESS HE WAS UNABLE TO PAY FOR THE PROGRAM AND THEY ISSUED A WARRENT FOR HIS ARREST. WE DONT HAVE KIDS BY BLOOD BUT HE HAS RAISED MY CHILDREN . HE ASKED FOR A RIDE TO KRAGENS AND AS THEY GOT TO OUR FRONT YARD RIDING PASSENGER THE OFFICER ASKED FOR HIS INFORMATION AND THE WARRENT CAME OUT. GOING TO COURT HE EXPLAINED THAT HE HAS BEEN SOBER AND GOT HIS LIFE TOGETHER AND HAD A WEDDING DAY SET FOR DECEMBER AND HAD A JOB TO NOW PAY FOR THE CLASSES BUT EVERYONE ELSE HERE IN KERN COUNTY GETS REINSTATED 2-3 TIMES BUT HE WAS DENIED.SO WAS SENTANCED 1YEAR IN COUNTY JAIL AND AT ALMOST 4 MONTHS ICE PUT A HOLD ON HIM .HE WAS TOLD HE WOULD HAVE TO SPEAK TO A JUDGE IN ARIZONA BUT THEY HAD NO SPACE . WERE FROM BAKERSFIELD CALIF AND THEY SENT HIM TO EL PASO TEXAS. WAITED 2 MONTHS ALMOST FOR A COURT DAY AND DIDNT REALLY UNDERSTAND THE JUDGE AND NOT KNOWINGLY SIGHNED FOR DEPORTATION. HE WAS NOT GIVEN AN INTERPITER AND ME BEING AMERICAN WHEN IT COMES TO COURT TALK ITS HARD TO UNDERSTAND. ALL HIS FAMILY IS HERE AND HE GOT SENT TO JUAREZ AND HAD TO SLEEP WHERE EVER HE COULD FOR ABOUT THREE WEEKS INTILL HE JUST COULDNT TAKE IT AND TRIED TO GET BACK HOME ILLIGALLY AND GOT CAUGHT AND IS NOW SENTANCED 75 DAYS IN SAN LUIS ARIZONA.
CAN SOMEONE PLEASE TELL US WHAT WE CAN DO ! WILL OUR LIVES EVER BE BACK NORMAL ? IM PRAYING THAT SOMEONE WILL READ THIS AND GOD WILL SEND SOME ANSWERS. THANKS PLEASE GET AT ME FINESSCANCU2@YAHOO.COM
want to reopen my deport. case
Comment posted by Anonymous on Mon, 07/28/2008 - 3:34pmI was deported to my coutry wich I left as a teenager now Im 49 I married a legal resident in 1981 had 5 US citicenz kids wich I left behind together with a wife. Yes I was a victim of that stupid law . I was found in simple possession of mariguana a few times I was never a dealer I worked and suported my wife and family ,bought a house now I see myself separated from my family. My mom my dad my brothers and sisters they all are naturalizated US citicens . I have never worked in Mexico before I have lots of problems adjusting to this new life.Im afraid to go back as a illegal person and risk myself being arrested for reentering after deportation I have no family left here in Mexico even all of my uncles,cousins live legally in the states. Please if someone can help with advice on how can I reopen my case I heard of a new Lopez law that may protect me. e.mail me at rayleyva1959@yahoo.com.mex
what happend to equal rights for legal permanent residents
Comment posted by Anonymous on Tue, 11/04/2008 - 6:37pmMy fiancee has been here in the united stated since the early age of 4. He is from portugal and all of his family is here too. In april he ws arrested for a violation of probabtion. Our homewas raided in a illegal search and there were no drugs in the residence. However the cops failed to leave a itemized list of what was taken from our home and are now saying he infact had .o12 of meth and .05 of heroin on his person. He was never drug tested to prove he was under the influence, and the evidence has been lost as of today. He has no prior drug convictions and does not use drugs. He is in jail and has been for the last 7 months without a release date because ins has placed a hold on him. He has a 14 year old son here and we have been together for 12 years so legally by common law we are married. I am devastated that he may be deported and my whole life will be over unloess I agree to move to another country. I feel our government needs to be specific in the laws they make or don't make them at all. If someone has been here since a young child and this is the only culture thay know it is cruel and unusual punishmant to send them to a country they don't even remember. Needless to say they will be homeless and have only the clothes on theor back. Just because someone hasn't applied for their us citizenship doesnt mean they haven't tried. its a long process and it takes years. Children are having to be without their parents because of our selfish government and their evil ways of prejudice. How can someone expect to abide by the laws here if they aren't given the respect of having any rights. It is ridiculous what these people have to go through. We have citizens that really don't deserfve to be here for the crimes they committ, but they are still here in prison wasting our tax money everyday. Someone really needs to clean up this act and fast its not fair.
Depoprtation! Help Please
Comment posted by Anonymous on Tue, 11/11/2008 - 11:44amHi my name is Nadia. This same situation is happening to my boyfriend now. He came to the country from jamaica. One day he was riding in a car with a friend, they pulled them over and got charged for 4 ounces of mariguna and some money on the seat. He was locked up AND WENT TO COURT AND TOOK PROBATION AND A FELONY ON HIS GREEN CARD.HOW STUPID HE WAS THEN. At the time he and his family use to live at a certain location. The police told him that if he didint be an informant and work with them they would make sure he wa deported. He went back to work and about three years after he was taken from work by immigration police and brought to Virginia. His case was transfered back to Newyork. He paid his lawyer and the lawyer told him that he would have heard from him within in five years. He went back to the lawyer after five years updated his address and phone number, guess what the next day the ICE was at his home looking for him. Eventually we found out that hew was on deportation. The lawyer said he worte one letter telling him that he needed to bring some money within ten days, so that he could appeal case. My boyfriend never got that letter. At the crimminal court he was never informed that he could have been deported and not understanding the law , he took probation with a felony on hids green card. He has never been in trouble since. He has worked two- three jobs always. His children are here and is suffering because he is unable to work to support them. His whole family is distorted and stressed out. The community where he plays an active role is even surprised. We dont know what to do .We have already payed a whole bunch of money to different people. If you have any thing that can help me! email me @ missblackriver@aol.com or starcadetravel.com @yahoo
MY HUSBAND HAS BEEN DEPORTED TODAY SO UNFAIR
Comment posted by Anonymous on Tue, 12/02/2008 - 8:21amMY HUSBAND HAD TO PLEAD GUILTY BECAUSE THE LAWYER TOLD HIM TO SO IT CAN CLEAR HIS FIRST CASE FOR DISTUBUTION OF MARIJUNA. HE WAS ON A 2 YEAR PROBATION. I GOT CAUGHT MOVING HIS CAR AND GOT ARRESTED AND I BAILED HIM OUT THAT NIGHT. HE HAD TO SHOW UP TO COURT THE NEXT DAY AND HIS PO SURRENDED HIM. SO HE HAD TO GO TO THE MAIN COURT WAS HIS CASE ORIGINALLY WAS AND THE PO THERE SURRENDED HIM ALSO. HIS BEEN LOCKED UP FOR A MONTH AND BEAT UP BY THE CO.. NOW HE HAS A COURT DATE TODAY AND HE IS GOING TO GET DEPORTED FOR VIOLATION OF PROBATION. HE IS MY HUSBAND! AND GOOD YOUNG MAN THAT DOES NOT START TROUBLE WITH ANYONE AND A LOVING MAN THAT HELP OUT ALOT OF PEOPLE.
CAN SOMEONE PLEASE HELP ME
I CANT LIVE WITHOUT HIM.
Can anyone help me??? Please..
Comment posted by Anonymous on Sun, 12/28/2008 - 2:27amI got deported to colombia on november 4th 2007, I have no family here in colombia, I am devestated I need someones help please. In 2005 this girl that i knew for quite sometime called me to do her a favor and get her a $40 dollar bag cocaine which she called me three times for the same favor, well what I didnt know was that this girl had gotten caught with a controlled substance prior to her calling me for these favors. Well after a couple of weeks of her calling me and I not wanting to do her the favor anymore police arrested me. The state of new york didnt make a big deal out of this, the court only gave me four months which i would only do three and no probation. Then at the end of 2007 ICE came to my house and arrested me and got deported to colombia. I need someones help please, because this is inhuman behaviour what is being done. The point I am trying to make is that my home is not here, its there. I came to America as a child legally, and banishing to a foreign country is punishment beyond what Americans would accept, The country was based on great morals set by great leaders which if they were aware of this going on would probably shake their heads at. I am begging you to please let me come back home, you can put me on a 20 year probation period, send me to the army and/or whatever you think is necessary I will do for my country. I want to come home the right way, this will be my second Christmas and new years I spend alone away from all I've ever known. If anyone can help please email me at juanc.zarate7@hotmail.com
husband deported
Comment posted by Anonymous on Tue, 02/17/2009 - 11:42pmMy husband was deported in 2006 for a 1996 felony charged then dropped to a misdemenor.So for 10 years after he served 14 months in prison for it,our family of 3 kids tried to live our lives happily.In 2003 we had fought with the immigration board but they still deported him.Does anyone have any advise or are we at a lost cause.Maybe will go to mexico and see how we like it there.
write obama
Comment posted by Anonymous on Thu, 03/19/2009 - 5:57pmeveryone needs to write to him. This system is broken and unjust. I don't see how they could ruin peoples lives over small encounters with the law. When one is young, mistakes are made to be learned from, they are acting on those mistakes without even looking at the person that individual is now and not what happened years ago. My wife is being held by ICE, we have a waiver with USCIS to overcome this but it is now a race against the two organizations. To think I we might have to leave all of our family who are all citizens, our way of life, our security, our health care, all that we have worked to hard for over the years. I can not let her go alone, I have to be there for her and make the best of things if it were to happen.
Do not loose faith, life takes you where it wants to.
Deported for drugs
Comment posted by Anonymous on Wed, 04/15/2009 - 10:42pmYou all come to the US illegally, find loopholes in the law or lie to obtain a green card, break American drug laws, then whine when you have to face the consequences. Choose the behavior, choose the consequences...........
you sound soo retarded!!!!
Comment posted by dee on Tue, 10/06/2009 - 1:14amyou sound soo retarded!!!! IT SAYS LEGAL PERMANENT RESIDENT IDIOT!!!! YOU DONT KNOW WHAT PEOPLE GO THROUGH IN THIS SITUATION..SO IF YOU CANT BE A LITTLE COMPASSSIONATE DONT SAY NOTHING AT ALL!!AND ANYONE CAN MAKE A MISTAKE NOBODY IS PERFECT. ITS A REALITY THE DRUG LAWS AND IMMIGRATION LAWS ARE TOO HARD ON PEOPLE!!!!!
friend being deported
Comment posted by Anonymous on Wed, 04/22/2009 - 12:06pmmy friend got caught racing his car and he has to go to court to see if he gets deported... any ideas on how to help?
drug conviction
Comment posted by Anonymous on Thu, 05/14/2009 - 5:11pmconvicted more than 12 years ago I have given a letter that says that I will recieve a court date. I never got that date, my passport was retained.
what should I do? Should I go ahead do another passport or wait for that date after 2 years?
Deported for drugs
Comment posted by Anonymous on Mon, 05/25/2009 - 8:42pmThe person that wrote the smart ass coment get real, even if your legal or not your wrong first of all we all immigrants are u indian no ok,so y talk shit an so much in life we all make mistake or do things that no one knows an haven't got cought an by god eyes we all make mistake an that orange suite fits all,in somany ways so does immigrants look were they stand, stores.resturants,ect wat do a person like have shit y cause all u think is spending an not thinking of ur family future or yours go pick up a book an read about. This immigrants an ur self
I was Deported From the US and I want to get back!!!
Comment posted by Anonymous on Sat, 07/11/2009 - 10:23pmHello my name is Marcelo Cardoso,
I was born in Brazil but raised in the US in New York City,Both of my parent are American Citizens, I graduated from West Lake High School, got married to an American Citizen, and We still are married till this day. In 96 I served a one year term for drug,and then in Jully 19, 1999 the Imagration department Deported me back to Brazil.
But in 99 I had a full time job at Wall-Mart store in Albany NY,and I was happly married.But they deported me any way.
I am trying to find out what can I do to get back Into the states and reunity with my loved ones.I have Twins kid that I have not even met yet.
For ten year I have been living here in Brazil,I have worked for some top company, and have been out off trouble no major running with the law.
I need HELP!! I don't know what to do,and so does my wife in the states.
Please if any one can help me please Contact me at
Riomarcello100@gmail.com or Skype me at (Riomarcellotv.com) Or my website www.riomarcelotours.piczo.com
Thank you for your time, and forgive me for my spelling ok.
Marcelo Cardoso
Boyfriend Being Deported for my mistake!!
Comment posted by Veronica Gonzalez on Thu, 10/01/2009 - 8:48pmMy boyfriend is being deported for my illegal action.Now my boyfriend is in jail facing deportation its not fair I'm a us citizen and i should be in jail not him. But law doesn't care for our stories they just care about legal action. We are all humans and we all have the right to talk. I don't know what to do please help..!!
Question?
Comment posted by Anonymous on Sun, 11/01/2009 - 1:59pmThis guy I know and a good friend of mine was deported for being in possession of drugs and violated his probation by not showing up. He had to spend 1 year and 1 day in jail. This took place 1998-1999. He was deported by to Jamaica. I wanted to know if he would every be able to enter back in the United States just to visit. I really do not know how the legal system works. I wanted to know what will happen.
UNFAIR DEPORTATION
Comment posted by Anonymous on Wed, 10/24/2007 - 5:45pmHI MY NAME IS SONIA I JUST READ YOUR ARTICLE AND IN FACT THIS IS HAPPENING TO MY HUSBAND DAUGHTHER MOTHER.THIS IS TAKING PLACE IN PASSIC COUNTY IN PATERSON.IM VERY UPSET HOW THE WHOLE THING OCCURED.HER NAME IS DOMINGA MARTINEZ WHO CAUGHT A MINOR OFFENSE AT THE AGE OF 18,WHO IS 27 YRS OLD. DOMINGA BEENED IN UNITED STATES SINCE 2 YEARS OLD.THIS IS A TRADEGY TO ALL OF US.SHE HAS CHANGE HER LIFE AND HAS A BEAUTIFUL FAMILY WITH TWO CHILDREN AGES 11 WHO BELONGS TO MY HUSBAND AND A 2 YRS OLD FROM HER FINANCE.TODAY, WAS A HEARING TO SEE IF HER CASE CAN BE RE-OPEN.FOR,THR SIMPLE FACT THAT HER PUBLIC DEFENDER AT THE TIME NEVER DISCUSS ANY TYPE OF DEPORTATION.HER PLEA WAS PROBATION AND A DRUG PROGRAM.IF ANYTHING CAN BE DONE TO HELP DOMINGA AND HER CHILDREN IWILL APPERCIATE IT. SHE HAS 3 ATTORNEY INVOLVED FOR THIS CASE.PLEASE,IF THERE IS ANYTHING THAT CAN HELP HER E-MAIL ME AT LCDNNY@YAHOO.COM OR SONIA75@YAHOO.COM THANK YOU FOR READING MY COMMENT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!1