High Court Considers Drug Deportation Case

3/31/2010 12:50:00 PM, Annie Youderian
     WASHINGTON (CN) - The Supreme Court on Wednesday considered whether a longtime legal permanent resident can be deported to his native Mexico after pleading guilty to two minor drug offenses: possession of less than two ounces of marijuana and possession of one prescription Xanax pill.

     "Congress has taken a hard line over the past 20 years on criminal aliens, particularly recidivist criminal aliens," said Nicole Saharsky, an assistant to the solicitor general.
     The government argued that Jose Angel Carachuri-Rosendo's second conviction, involving the Xanax tablet, constitutes an "aggravated felony" under immigration law, because he could have been charged with recidivist drug possession, a crime that's "punishable as a felony" under the Controlled Substances Act (CSA).
     The Immigration and Nationality Act defines an aggravated felony to include any felony "punishable" under the CSA.
     "What controls is Congress' judgment," not the state's punishment, Saharsky said, urging the justices to uphold the 5th Circuit's ruling that Carachuri-Rosendo isn't eligible to stay in the United States.
     Justice Antonin Scalia seemed to agree.
     "This was punishable as a felony because it was his second drug offense. He was a recidivist," Scalia said.
     But Washington lawyer Sri Srinivasan, arguing for Carachuri-Rosendo, said his client was never convicted as a recidivist at the state level, so his crimes can't constitute an aggravated felony. He argued that Carachuri-Rosendo should be allowed to seek relief from deportation "based on [his] connections and deep family ties to the country."
     The Mexico native immigrated to the United States as a child and later got engaged to a U.S. citizen, with whom he has four children, all U.S. citizens. He is a longtime legal permanent resident.
     His situation garnered sympathy from Justice Ruth Bader Ginsburg, who said it seemed "absurd" to deport Carachuri-Rosendo "because of one marijuana cigarette and one Xan-something pill."
     And Justice Stephen Breyer, in an argumentative exchange with the government's lawyer, pointed out that Supreme Court precedent instructs courts to look to the text of the law. He quoted Lopez v. Gonzalez's holding that a state offense constitutes a felony punishable only if it "proscribes conduct punishable as a felony." The Texas law under which Carachuri-Rosendo was convicted "does not proscribe conduct that would be a felony under federal law," Breyer said.
     But Saharsky insisted that Congress "has had a very serious concern about recidivist criminal aliens" over the past 20 years and has passed laws that treat recidivist drug offenses as aggravated felonies under immigration law.
     A ruling for the petitioner, she argued, would lead to a "patchwork application of federal immigration law." Attachment