Skip to main content

Feature: Cases of Immigrants Deported for Minor Drug Offenses Heard at US Supreme Court This Week

Submitted by Phillip Smith on (Issue #456)
Drug War Issues
Politics & Advocacy

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
That law expanded the definition of "aggravated felonies" -- crimes for which deportation is mandatory -- beyond serious violent crimes, which had been the previous standard. The cases before the Supreme Court this week revolve around whether offenses that are considered misdemeanors under the federal Controlled Substances Act but are considered felonies under state law in the states where people were convicted can qualify as "aggravated felonies" under the immigration law.

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."

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)

I 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 [email protected]

Mon, 07/28/2008 - 4:34pm Permalink
Anonymous (not verified)

My 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.

Tue, 11/04/2008 - 6:37pm Permalink
Anonymous (not verified)

I 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 [email protected]

Sun, 12/28/2008 - 2:27am Permalink
Anonymous (not verified)

My 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.

Tue, 02/17/2009 - 11:42pm Permalink
Anonymous (not verified)

everyone 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.

Thu, 03/19/2009 - 6:57pm Permalink
Anonymous (not verified)

You 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...........

Wed, 04/15/2009 - 11:42pm Permalink
dee (not verified)

In reply to by Anonymous (not verified)


Tue, 10/06/2009 - 2:14am Permalink
Cozzetta (not verified)

In reply to by Anonymous (not verified)

I understand wher you are coming from but at the same time there are people that come here from other countires that are here legally and get caught up in drug addiction and make unwise decisions it can happen to any one even you! I have a boyfriend who is Russian that came here 10 years ago from Kazachstan that happens to be a Permanent Resident that after the death of our 2 month old son, who died in my boyfriends arms(Unexpected Death) turn to Heroin to cope with his grief. He is now in prison for 20 mos and is facing deportation. He is now working and taking chemical dependency classes to try and become a better person. Sometimes people do stupid things and drug addiction can happen to anyone. No one ever wakes up and says today I think i'll become addicted to drugs!

Fri, 01/08/2010 - 12:23pm Permalink
Someone (not verified)

In reply to by Anonymous (not verified)

People come to  U. S. A because they need a better life. When they come here they have to make money to actually start a life. Some people mess up and get into drugs; by selling them, but in order to start a life you need money. If Immigration stopped or had fear laws for illegal Immigrants that would be helping not only illegal Immigrants but it would bring more peace into the world. Personally I think if Immigration was to stop and the world was all connected together ,people could enter and work and start a new life, then we could come to PEACE. This goes out to all the people that don't understand the situation people are in!!!!!!!!!!!!!!!

Wed, 02/02/2011 - 4:50pm Permalink
Anonymous (not verified)

my 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?

Wed, 04/22/2009 - 1:06pm Permalink
Anonymous (not verified)

convicted 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?

Thu, 05/14/2009 - 6:11pm Permalink
Anonymous (not verified)

The 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

Mon, 05/25/2009 - 9:42pm Permalink
Veronica Gonzalez (not verified)

My 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..!!

Thu, 10/01/2009 - 9:48pm Permalink
Anonymous (not verified)

This 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.

Sun, 11/01/2009 - 1:59pm Permalink
ANONOMYS (not verified)

I moved to america from Poland in 1990 when i was 10years old. I had a permenent green card but I got arrested for a drug possesion in 2000 and served a year and a half in prison. When it was time for my perole day immigration put a detainer on me and took me to a immigration prison. When my courtdate came the judge gave me a 20,000 dollar bail which my father paid right away.I went home and found a lawyer to start my appeal proceedings. I had a american citizen child at that time and we tried to appeal anyway we could. I went to court over a period of four years during that time I stayed of drugs which I was addicted to since I was 14 years old, but I managed to completely turn my life around I had another baby,unexpectedly,worked a steady job for over 2 years,but I lost all my appeals with the courts.My lawyer then advised me to live my life the way Ive been living and when immigration is ready they will deport me, little did I know they were looking for me already.I had to take my babys father to court in order to get insurence for my daughter and thats when I found out they had a warrent out for my arrest. They took my dads money and said I ran.Thats crazy since they arrested me in a court. Would I of went there if I knew they were looking for me? They had one letter wrong in my address and thats why they couldnt find me. My dad lost 20,000 for no reason and I had to take my oldest daughter with me to europe, my youngest stayed behind in the states. My youngest daughters father refuses to send her over to me even for a visit. I havent seen her in almost 4 years now.I dont have any family here at all but I managed to move to england and find work.I need to know if theres any way to fight for amnesty and be able to go back home or at least visit my child.Please help me with any information. Thank you.

Fri, 01/22/2010 - 7:07pm Permalink
meyoshi.h (not verified)

hi well my fiance Dave is being held in immigration facility we, were going to get married 09/05/ son ,Dave and i went shopping July/16/2009 we split-up and i went to order some lunch meat then i started walking around eating lunch meat not even thinking we then met-up in the parking lot as i was reaching for my keys i realize i steel had that lunch meat 3or4 big men came charging me pulling and grabbing me i started screaming and pepper sprayed the men so scared i jumped into the car my son,Dave and i. went straight home as we were arriving police came to my car saying we rob price chopper got out on bail Dave and i went back and forth to court for about 6to7months do to my sickness Dave and i finally took a plea for probation for 3years not knowing he can face this b-s hes still locked up

Fri, 06/11/2010 - 6:38pm Permalink
Jim22 (not verified)

Why are the rolling stones alowed in America they had all been arested for drugs and these people who have children cant enter. The US court system is the biggest joke on earth. In America people are so nieve to think it's the best in the world they need to be educated.

Tue, 07/20/2010 - 1:13pm Permalink
Ted22 (not verified)

In reply to by Jim22 (not verified)

And the funny thing is the lead singer was sitting next to the person who signed this into law at the world cup in South Africa.Bill Clinton why would you sit next ro a person similar to people who you believe are a risk to the well beeing of America?

Tue, 07/20/2010 - 1:18pm Permalink


my fiancée was pulled over by the cops on Buford highway in Gwinnett County and taken to jail and put him in a holding.  he was pulled over by a random stop and didn't have a license to show the police.  there was a warrant out for him for driving with no license. we searched for the ticket but we couldn't find it so we assumed that the ticket was taken care or misplaced. we had no idea they had a warrant out for him for not appearing in court. Now he is on immigration hold because he is here illegally.
i am permanent resident right now at this moment but i will become a citizen sometime in January 2011. so we are suppose to get married as soon as i become a citizen. Gonzalo parents has brought him here when he was young. He has been here since he was 3or 4yrs old and he is now 22. he has attended school here his whole life he also went to college at University of Georgia for a little while. so i am asking you for help. i need to know what i need to do or how to go about getting him out because he has been here for 22yrs because of his parents and i don't think it is his fault for him to be punished for this action if he has been here his whole life attending school and working 2 jobs while getting taxes taken out of his check as like he was a true US citizen. so i am emailing you to show i am in need  to get my fiancee out because sending him back to mexico where he knows no one in that country and  he also  has his two siblings that are citizens that are.. in the US that are depending on him because he is there guardian. 
my fiancée is a wonderful person he is one of the hardest working people i know  and he treats me like a queen. I never expected to fall in love with  an immigrant, but i am and my heart will not let him go. I refuse to let any government separate me from the man I love.
plz help I love him so much
Wed, 09/22/2010 - 3:04am Permalink
Bernard hill (not verified)

My wife was born in canada both her parents were u.s. Citzens she became one when she was three years old at age 24 she now faces deportation. Because she fell victum to drugs like many americans do. She was caught with less than a gram of a controled substance. Now she has to go how do I raise our daughters alone?
Thu, 01/26/2012 - 12:02am Permalink
cristian encalada (not verified)

My name is Cristian Encalada and I was deported on August 18th 2007 from the state of New Jersey. I was convicted of a felony drug offense, but i was told by my lawyer before I pleaded guilty that I had no risk of deportation. I pleaded guilty as I was, but with the hope to get home and continue my life with my family and friends. I was informed by the judge about the deportation law after I pleaded guilty and was basically forced to do so. Now I've been living in Ecuador for nearly 5 years and feel betrayed by a country that i believed was mine.The reason I say this is because I lived in the states for nearly 18 years of my life ever since i was 5 years old, all I knew is this country and it's language.It hurts me to not be forgiven for a mistake when i finished my sentence and even bettered myself through out this process, I now work as a tour guide and live a better life than the one I lived during these hard times, but I still dream of the day I can finally go back "home". I left a new born in the hands of his mother to grow up with out his father and I haven't seen him since...I witnessed people getting sent home to their families in the states after serving a 10 year sentences for violent crimes!This just amazed me and still does, how was I deported and not given a chance...I just hope that this law stops destroying families for the future. Isn't the paper called a permanent residence?It seems like it should be called temporary in my opinion...  

Tue, 06/19/2012 - 8:31pm Permalink
Yuri (not verified)

ok my husband has been charged with a drug case he is no longer in the usa and im in tx now we been separated for two years but sience my little gir was really close to himi let him to live in my house but he sleep in my girls room now a soon he know he has order off arrest he went to mexicoand i was in texas the police broke my house door and serch my house but they dont find nothing in my house but sience we are still marriend now im scare to go back to my house because i dont want the police to ask me cuestions or ice go to my house sience my legal status is not in order my cuetion is can police put me under arrest just so he can sorrent him and plus can they siezed my house
Wed, 07/18/2012 - 11:29pm Permalink
sumatie (not verified)

hi my name is sumatie  i lived in the us for more than 20 years  i have 4 children 1 us born my husband was deported in 2009  my husband was a taxi driver then he works at night we had came to the us a yr ago  and a women was working with hollywood police and she set my husband up, any way i sumatie  came back to trinidad ileft my 4 kids in the us my youngest child is 12 years old my husband and i dont know any thing about trinidad we when we were very young i have 2 grand children i cry every and night trinidad is not  a safe  place to stay i cannot bring my children  here because when they know that you are from aboard  its bad we have a house in florida my husband is atruck driver for more than 16 years in the us we had 2 tire shop and 2 trucks on the road we pay all of our taxes and do the right thing  please if any one read this little note please help us to go back home we love it there thats is were our life is and we would like to life and the rest of our life ,my email is smathura05@yahoo,com thanks may god send someone from above and listen to my cry for help

Fri, 03/15/2013 - 2:03pm Permalink
Marbella (not verified)

Hello please help me bring my father back. He was charged with a felony. He was a Permanent Resident in the united States. He did his time in jail and then they deported him. My father had been in the United States for 40 or so years. He had never had any problems with the police. This was his first felony and as we all his children are US Citizens I am try to get him back with us. It is so hard for me as a single mother to take all my children to see him. We know what he did was wrong but in true no one new that he covered for the real guy who had the drugs or that took it to him to give to his friend he was just a middle man and the guy who was the real dealer got away like always. Any ways this case happened in 1998. He was deported and did not come see us or us see him because like I said money wise it is just so hard and at the time my Grandmother lived and he took care of her. As my oldest daughter was going to have her big party for turning 15 teen we wanted him to come it had been 8 or 9 maybe even 10 years. We all his children did the right thing we consulted a man who told us he was a lawyer. We asked him if he can come back to the United States. He asked us for his Permanent Resident Card and that he would look into it. He called us and told us everything was ok that he could come back. So we called my dad in Mexico to tell him everything was ok. So we bought them bus tickets to Texas were one of the 7 children went to pick them up.My father came and went even flew on a plan to see us do to that my Grandmother was alive he could not stay here long with us but came to see all of his children and grandchildren and Know he is a Great Grand Father and has not met him do to that one Christmas year he wanted to just show up and surprise us so that we could have a big family Christmas like before he was deported but at the border he was put in jail because they said he was entering Illegally. Even if he had came and gone for a few times after we talked to that so called lawyer. So he once again was put in jail and deported and banded from here for 20 years.My Grandma just passed and this is what kept my father in Mexico. He no longer has any one due to that all his family is here. So know I need help to bring him back to me. My father is not doing to good health wise and I really am scared for him to be all alone. Plus do to that we all are Citizens what if one of us (his Children) die. He cant even come to our funeral. Please help I know it is long and still missing more to say sorry but please help me bring my father back, I have been depressed and it is just so hard. I just can not  over come it and I have paid lawyers who just take my money that I already do not have to tell me sorry nothing we can do or we need more money.

Mon, 12/30/2013 - 2:58am Permalink
Lou (not verified)

My ex spouse came to the states when he was six months old. Never became a U.S.citizen. Throughout his life in the U.S. he Had 4 DUI, had several restraining orders, had been caught with marihuana, a hit and run and had been under home arrest several times. Finally after another arrest in 2007 he served jail time then got deported to mexico for ten years. He came back illegally to the U.S. in 2009. He claims to be here legally. How is it possible that he's back in the states and it hasn't been ten years and yet he claims he's legal. According to my online research he might be able to come back to the U.S. after 10 years and he still needs to apply and that takes time. Can someone answer me and tell me how can I find out if he's legally back in the U.S. it it even a possibility he was granted a pardon to return. Please help!
Sat, 07/05/2014 - 12:15am Permalink
Rodriguez (not verified)

His parents brought my friend to the United States in 1968, he was 4.5 yrs old. In 1983 he was caught going to college with a small bag of cocaine. After serving 40 days in county jail and 40 days in work release he was freed. in 1996 a knock on the door and INS takes him and deports him to Argentina. Not speaking the language very well nor the culture he struggled there. He re entered 3 yrs later is married to an American with a 6 yr old daughter owns a home and 2 businesses. He is terrified of getting caught and getting deported. is there anything you can do to help this wonderful man...

Sun, 07/05/2015 - 12:39pm Permalink

Add new comment

The content of this field is kept private and will not be shown publicly.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.