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The first argument of the Supreme Court’s upcoming term will affect thousands of immigration-related cases across the country as a South Texas attorney faces off against the Office of the Solicitor General in a fight over crime and statutory construction. Many federal criminal and immigration matters hinge on whether judges find that immigrants have committed prior aggravated felonies as defined in the Immigration and Nationality Act. Determining what constitutes an aggravated felony for the act’s purposes requires reference to two other federal statutes, and the offense has serious consequences, including removal from the United States with only restricted opportunity for relief and a potentially stiffer sentence under the U.S. Sentencing Guidelines should the immigrant be convicted of illegal re-entry. The Supreme Court on Oct. 3 will consider a consolidated appeal of Lopez v. Gonzales, an immigration case from South Dakota, and Toledo-Flores v. United States, an illegal re-entry criminal case from Texas. Both involve immigrants found to have committed a prior aggravated felony based on state-felony drug convictions, but federal drug statutes would deem the crimes to be only low-level misdemeanor offenses. “The question is whether simple possession of a controlled substance is an aggravated felony, which makes them deportable from the United States,” says Tim Crooks, an assistant U.S. public defender from the Southern District of Texas who will argue before the high court on behalf of Reymundo Toledo-Flores. The decisions in Lopez and Toledo-Flores will affect few jurisdictions as much as it will affect the U.S. Court of Appeals for the 5th Circuit, which includes Texas, Louisiana, and Mississippi. That’s especially true for the region near the Texas-Mexico border, where drug-related and criminal immigration cases flood U.S. district courts. According to the U.S. Sentencing Commission, in fiscal year 2005 7,121 sentences�46 percent of all sentences�were immigration-related in the 5th Circuit. That compares with 17,717 sentences, or 25 percent, that were immigration-related in fiscal year 2005 for the entire United States. “In our world, where the border is the engine of two areas of law, immigration and criminal, it’s a big, big deal,” says Henry Bemporad, chief of the appellate section of the Office of the Public Defender, Western District of Texas. Toledo-Flores was convicted in 2003 in Houston of a state-jail felony offense of simple possession of 0.16 grams of cocaine�a crime that is not a felony under federal law. In 2004 the U.S. Border Patrol apprehended him after he waded across the Rio Grande near Laredo, Texas. He pleaded guilty to illegal re-entry that same year before U.S. District Judge George Kazen, who sentenced him to 24 months in prison. Kazen increased Toledo-Flores’ sentence several levels under the U.S. Sentencing Guidelines because he found that Toledo-Flores’ simple-possession conviction was an aggravated felony, a ruling Toledo-Flores objected to. He appealed to the 5th Circuit. Last year the 5th Circuit rejected his appeal in a two-sentence unpublished opinion. “There are a lot of aliens that have these kinds of drug convictions and are up for deportation. And no matter what you think of immigration, they have compelling arguments,” Kazen says. “They have wives and children here.” There’s little doubt that the decisions in Toledo-Flores and Lopez will have the greatest impact on immigration courts. In fiscal year 2005, U.S. immigration courts across the country handled 323,749 removal proceedings, according to the Justice Department. A conviction for a minor drug offense can mean that immigrants are subject to removal from the United States to their home country and never allowed to return by the immigration court, which is what happened to Jose Lopez in South Dakota, according to his brief. Lopez was a lawful permanent resident from Mexico who has a family and had opened two businesses in Sioux Falls, Texas. In 1997 he pleaded guilty to aiding and abetting possession of cocaine in a South Dakota state court after he admitted telling a third party where to find drugs�even though he never possessed cocaine himself, according to his brief. He was released from state prison after serving 15 months of a five-year prison sentence. Then the Immigration and Naturalization Service started removal proceedings against Lopez in 1998. An immigration court ordered him removed in 2002 after a judge ruled his state conviction was an aggravated felony, a decision Lopez eventually appealed to the 8th Circuit. It affirmed the immigration court’s decision.
John Council is a senior reporter for Texas Lawyer , the ALM publication in which this story first appeared.

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