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Sentencing: US Supreme Court Rules for Immigrants in Drug Possession Deportation Case

Submitted by Phillip Smith on (Issue #464)
Drug War Issues
Politics & Advocacy

In a decision issued Tuesday, the US Supreme Court made it easier for some immigrants convicted of drug possession under state laws to avoid deportation. Under the Immigration and Naturalization Act, immigrants convicted of an aggravated felony face mandatory deportation. In this case, the court held that even if a conviction for drug possession is considered a felony under state law, if it is not considered a felony under the federal Controlled Substances Act, it cannot be an aggravated felony for immigration purposes.

The ruling came in the case of Lopez v. Gonzalez. Jose Antonio Lopez, who was born in Mexico, was a 16-year legal permanent resident of the US with a wife and children and a family business when he was arrested in Sioux Falls, South Dakota, and charged with aiding and abetting cocaine possession. Under South Dakota law, that's a felony. Lopez pled guilty and was sentenced to five years in state prison. Upon finishing his prison sentence, he was deported to Mexico in January 2006.

Lopez appealed his deportation by an Immigration and Naturalization Service judge, but in a 2005 opinion, the US 8th Circuit Court of Appeals in St. Louis denied him. The Supreme Court agreed to hear the case, and now Lopez has a chance to come back to his new home in the US.

The ruling came on an 8-1 vote, with Justice Clarence Thomas alone in the dissent.

The Bush administration argued that Congress left the door open to counting such offenses as aggravated felonies, but Justice David Souter, who wrote the opinion, and the court weren't buying it. In a passage where he accused the government of "incoherence," Souter added that "the government's way... would often turn simple possession into trafficking, just what the English language tells us not to expect and that result makes us very wary of the government's position."

With some 12 million permanent resident immigrants living in the country, the Lopez ruling is likely to affect thousands of immigrants with minor drug-related convictions.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Anonymous (not verified)

In this ruling by the Supreme Court on deporting a naturalize citizen of the United States is outlandish. I would not be appauled at all if those immigrants, which are in this country committing crimes and all that is done is to deport them back to Mexico. After, awhile, they will return and then are continued sent back, to return again and again.

Fri, 12/08/2006 - 6:12pm Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

what if u were rasied here all your life then one big mess up and have to leave the country your rasied in

Wed, 01/10/2007 - 4:16pm Permalink
giovanny (not verified)

In reply to by Anonymous (not verified)

i was deported after 30 years in the united states, been there legally since the age of 7.
I was deported for a mistake made by the elizabeth county court clerk in new jersey, that send the wrong information to the criminal division in trenton new jersey.
by the way i won my immigration case for cancellation of removal but lost it on appeal to the (BIA) board of immigration appeal.
I had 3 charges in 2002
1. possession of 50 grams or less of marijuana ( wich it was ammend it to 2c:33-2-1)
2.possessionof cds ( dissmiss) 2c:35-35-10a
3.possession of paraphernalia ( dissmiss) 2c:33-2
but the clerk send the info like i hag plead to possession of drug paraphernalia, wich is a deportble charge under the control subtance act. Bcause of this mistake i have lost my children,family and home.
and all the couty court says is ( I"m sorry)
any suggetion of what i might b able to do?

Thu, 09/10/2009 - 10:22pm Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

Naturalized citizens are no t reportable for such offenses, furthermore the court considered a case pertaining to a permanent resident. There is a difference.

Fri, 11/07/2008 - 5:44pm Permalink
Anonymous (not verified)

my name is annalynn guthrie and i was deported to the phillipens after found charges (possion of controlled subtanse class c) was considered an aggravatted felony in ins laws. i was adopted at the age of four years old by an american man who served the u.s. military an my mother a native of the philipens. i was brought to the states at the age of four and lived there for 25 years and was deported november 7 2006. my parents still reside in joplin missouri along with my 4 amercan citizen kids ages 11,9,4,and 1 years old. i have a feanci who also lives in missouri helping taking care of my kids wiyh my parents. please help me my fathers name is (terry l. guthrie) #14177827743
my email ad# [email protected]
p.s. i am very lost without my family and i can servive here because i dont speak the languge i was raised like an american so i speak and think like an american

Wed, 01/10/2007 - 11:07am Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)



Wed, 01/10/2007 - 11:13am Permalink
Anonymous (not verified)

I Was deported in 2002 now is 2008 my felony was two b flonies both cases runing at the same time the judge wanted to give me 6 month in rokis island new york but i left the court room cause i wanted to hire anothe lawyer the 1 lawyer promise me provation so when i heard the judge news i panic and left so when i when back with a new lawyer the judge was mad abset that i left his court room so he decided to make my case a felony case and send me to upstate runing both case as b felonies runing together 1 to 3 years in prison so i took the shook program and when i was to finish imigration pick me up and place in a facility for deportation bufalo federal prison so when i so the judge by video in the shook program i said to the judge i wanted mu¿y own will my deportation i was not going to fight my case with out being able to get bail they wanted me to stay incarcelated trew the hall case i couldnt take one extra day in prison so now im in my country and i wich to go back i think i paid the price i was cought with 30 small bags with cocain each bag probably weight 0.3 grams it is nothing they intent of sale can i fight this case or not
my e-mail [email protected]

Thu, 08/07/2008 - 1:27pm Permalink
Anonymous (not verified)

i am a native born cuban,i came to 1966 as a permenent resident. in 1996 i was arrested, and charged with possesion of cocain . the amount was a gram or less.i was sentenced to 4 months in a work realease center.adjudication was i face deportation, if cuba ever normalize's relations with u.s.a. i could be sent every year i have to get a work permit card my drivers lic. is only good for a year as is my work permit and ss wife of 25 years is american as well as my two children with her. imigration considers simple possesion as an aggrevated felony under the same heading as traffiking. which is a bunch of shit.there have been supreme court rulings which state that that cant be the case.what can i do to solve this nighmare.please respond to [email protected]

Thu, 02/12/2009 - 11:51am Permalink
Anonymous (not verified)

i did my time and i paid my fine.and it seems like i pay every year having to go through all the bullshit of getting the work card, which is only good for a year,and now my drivers lic. s only good for a year as well as my ss for a gram of coke i pay for the rest of my lfe.......huh ,asshole.

Thu, 04/23/2009 - 9:28am Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)

Please talk to me. Did the possession count as an aggravated felony and were you deported? My husband also made a stupid mistake relating to the same thing. It was counted as an aggravated felony and was deported after serving only 2 and a half months. So we moved to mexico to be with him. As you may imagine trying to live here is hard. Life is depressing. There is no future here. Obviously we are trying to see what we can do to return. He just talked w/ a lawyer here in Mexico and he says that he can go back somehow on a work permit, but he has his own business back home. . .so would that logically work? Also can he go back on a work permit after being deported as an aggravated felon? If the work permit happened to be a legal way to return. . .would he have to renew it every year then too? I am concerned that this lawyer might not know what he's talking about or might be trying to get him back to the States in a shady way that might affect us again in the future. Like misleading us to think that doing it this way is ok but later might have consequenses. . . like maybe him saying this way is legal but later finding out its not and him possibly serving time again because of it and getting deported again. I thought maybe you'd know something about it seeing as how you mentioned having to renew a work permit. Please tell me what you know as I'm not sure about what this lawyer is saying is true. It does seem to be a hassle to have to renew your work card, liscense and ss card every year : P what a pain! But compared to trying to make it here. . .heh,heh I think we would be more than willing to put up with it if it provided a chance for us to get out of here.


Fri, 11/06/2009 - 7:50pm Permalink
paola panesso (not verified)

I was deported in march 3 2008 on a possesion charge I was a drug addict using cocaine i wasn´t selling it they cought me twice so it was an aggreviated felony. Ilived in the states since 1982 26 years living in the states i have 2 kids who are american citizens. Its been hard i can hardly speak spanish and this country is dangerous Cali,Colombia. Can I go back? I have been clean for 3 years 2 years that i did when i was in the states in jail and a year here.

Fri, 06/12/2009 - 12:08am Permalink
man without a … (not verified)

I am 50 years old. I have been living in the US as a legal permanent resident since I was 8 years old. I have a green card. In 1980, when I was 20 years old, I was arrested for selling marijuana. During the arrest they found 8 grams of marijuana. I pleaded guilty under the advice of the public defender. I served 35 days in county jail and was given three years probation.

I am now approaching the end of my life, and would like to become an American citizen. After 42 years, this country is all I know. I have family and kids here. America is home, and I love it deeply. I have filed out the N-400 form months ago, but I have hesitated turning it in for fear that I will be denied or thrown out of the country.

Please advice. I am desperate.


Thank you.

Tue, 07/27/2010 - 10:55pm Permalink
BiG (not verified)



   i hope there is someone who can answer my question before i have my next court hearing. i have 7 "C" felonies for selling meth. they say i am a medium class drug dealer but to be honest im not, i have an addiction to "ice" (meth) so i knew people who sell it so there was this friend who was addicted too. he is american (white person) he came to me several times (7) saying that people (hispanics) didnt trust him but he needed "ice" so i got it for him in exchance i could have some for my use! but he was wired and they record my voice those seven times and they say they were watching every transactions. They arrested me but i didnt have nothing at all! they search my house but they didnt find nothing also they search my friends house claiming that it was my stack house but they didnt find nothing either. i was just an addict. i spent 15 days in the county jail and got out because i find out i have cancer and the county didnt want to pay for my treatment. im out of jail with a GPS in my leg so they know exactly where i am at all times and with a lot of limitations. i have complete my addiction treatment and i have been sober for 7 months. i still going to mental health counseling and also im back to college. this is my first charge ever.i never been in any kind of legal problems before.  i am 38 yrs old i have been living in this country since i was 13 yrs old. next month i have my court hearing they want me to plead guilty for 3 C felonies with no probation oppurtunity. this mean 30 yrs in prision. i know i did wrong but i was so addicted to this drug that i didnt though in the consequences. if this is the price that i have to pay i will pay it. also if i plead guilty i became deportable this is the most painful part cause i am married and i have 3 little kids all they have its me! my lawyer says there is  a chance for me for not going to prision and get probation. so my question is: i will get deported to my country even if i dont go to prision? i will plead guilty to my accounts and i will get probation. i will get deported during or at the end of my probation? 

Fri, 08/13/2010 - 1:55am Permalink

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Mon, 01/10/2011 - 12:03pm Permalink

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