http://www.chron.com/disp/story.mpl/met ... 28727.html

Oct. 2, 2006, 11:33AM
Court to decide: Does deportation fit the crime?
Texas case is one of two being used to define how far punishments of immigrants can go


By PATTY REINERT
Copyright 2006 Houston Chronicle Washington Bureau

WASHINGTON - Possession of a small amount of cocaine is a misdemeanor under federal law. But in Texas, the crime is a felony — serious enough that it helped send Reymundo Toledo-Flores to prison for two years before he was deported to Mexico.

On Tuesday, the first day of arguments in the U.S. Supreme Court's 2006-07 term, the justices will consider Toledo-Flores' criminal case, along with that of a fellow Mexican national deported after a similar drug conviction in South Dakota. The issue before the court is whether the federal or the state view of the immigrants' crimes should be used to decide their prison sentences and the terms of their deportation proceedings.

To decide, the justices will need to clarify a federal immigration law that once was aimed at ridding the country of foreigners convicted of crimes such as rape and murder but increasingly is being used by immigration authorities to deport those charged with relatively minor offenses, including drug possession and shoplifting.

"The idea was that when immigrants commit really serious crimes, we didn't want them in the country," said Magali Candler, a Houston lawyer who chairs the regional chapter of the American Immigration Lawyers Association. "But over the years, the immigration laws have been amended repeatedly and now they are written so broadly that an immigrant who commits a minor crime, even if they never served a day in jail, can be deported."

Court records show that Toledo-Flores has repeatedly entered the United States illegally. He was deported last spring after serving his two-year sentence for felony illegal re-entry — a prison term that was lengthened because of his previous conviction in Harris County for possessing less than a gram of cocaine.

His lawyers are challenging his enhanced sentence before the Supreme Court, saying that because the drug possession charge would not be a felony under federal law, it should not have been used to increase Toledo-Flores' sentence on the re-entry conviction. If he wins, Toledo-Flores would gain nothing, but his case could help other immigrants charged with similar crimes fight their sentences and deportations.


The Lopez case
The stakes for Jose Antonio Lopez are higher. He also entered the country illegally, but later was allowed to become a lawful permanent resident under an agricultural worker program.

A victory now would give him a chance to reverse his deportation to Mexico and return to the United States to his wife, a legal U.S. resident, and their two children, who are U.S. citizens.

The justices' decision in Lopez v. Gonzales and Toledo-Flores v. United States also could have far-reaching consequences for thousands of other immigrants in Texas and around the country who came to America legally, but are at risk of longer prison sentences and automatic deportation because of drug crimes.

Conviction for even a minor drug offense can, but doesn't necessarily, result in deportation for non-U.S. citizens. In most cases, immigrants get a hearing before an immigration judge, who has the discretion to decide whether their crimes might be outweighed by the lack of a previous criminal record, longtime legal presence in the United States or the fact that the immigrant has a U.S. citizen spouse or children who would be left behind if he is deported. Immigrants fleeing political or religious persecution in their homelands also have the opportunity to ask for asylum to remain in the United States.


Under the law
But under the federal Immigration and Nationality Act, immigrants convicted of an "aggravated felony" face harsher punishment for their crimes and must be deported. They get no hearing to plead their immigration cases and try to remain in the country.

There is no question that the INA, which was last amended in 1996, considers drug trafficking an "aggravated felony" triggering tougher sentencing and deportation without a hearing. But lower courts have come to differing conclusions about whether possession of a small amount of drugs — intended for personal use rather than for sale — is also an aggravated felony. It would not be a felony under federal law, but is a felony in some states, including Texas.

The New Orleans-based U.S. 5th Circuit Court of Appeals, which handled Toledo-Flores' case from Texas, and the 8th Circuit, which handled Jose Antonio Lopez's case from South Dakota, have treated simple drug possession as essentially equivalent to drug trafficking, as have the 1st, 4th, 10th and 11th Circuits.

The three-judge panel in Toledo-Flores' case said Congress made "a deliberate policy decision" to defer to the states when it passed the INA, so that a felony in Texas would be an "aggravated felony" for purposes of increasing criminal sentences and speeding deportation, regardless of whether the same crime would be considered that serious under federal law.

But federal appeals courts in the 2nd, 3rd, 6th, 7th and 9th Circuits disagree. They have found that a crime is not an aggravated felony under the law unless it would be considered a felony under federal — not state — law.

The Supreme Court's job will be to resolve the conflict between the circuits.


The Bush team's stance
The Bush administration will argue Tuesday that the 5th and 8th Circuits' interpretation of the law is correct.

"If Congress had wanted to require a federal conviction, it would have said so," Solicitor General Paul Clement argued in his brief to the court.

The state of Texas has filed a "friend-of-the-court" brief supporting Clement's position, which has been joined by Arkansas, Colorado, Delaware, Idaho, Kansas, New Hampshire, Pennsylvania, Utah and Virginia.

Texas Solicitor General R. Ted Cruz wrote in court papers that Congress' decision to defer to the states was "eminently reasonable" because states traditionally have been responsible for enforcing criminal laws and because accepting the states' determination is more efficient than evaluating each case to decide whether the crime would amount to a felony under federal law.

Timothy Crooks, an assistant federal public defender from Houston who is representing Toledo-Flores, argues that Congress never intended to equate drug possession with drug trafficking. The lower courts mislabeled his clients' crime as an aggravated felony to increase his sentence, he said.

Supporting Crooks' position are numerous civil rights and immigrant advocacy groups, the American Bar Association and three former general counsels of the Immigration and Naturalization Service.

The high court's decision is expected by next summer.

patty.reinert@chron.com