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The first argument of the U.S. Supreme Court’s upcoming term will affect thousands of immigration-related cases across the country, as a South Texas attorney faces off against the federal 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 (INA). Determining what constitutes an aggravated felony for INA purposes requires reference to two other federal statutes, and the definition 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 U.S. 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. The troubling aspect of these cases, according to several immigration and criminal defense lawyers, is that both involve immigrants found to have committed a prior aggravated felony based on state felony drug convictions that federal drug statutes would deem 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. Answering that question requires defining “aggravated felony,” which petitioners’ and respondents’ briefs in the two cases say necessitates reference to two other statutes. According to the solicitor general’s Brief for the Respondents in the two cases, the INA refers to a list of 21 criminal offenses, ” “ whether in violation of Federal or State law,’ ” to define what qualifies as an aggravated felony. One of those 21 offenses is “illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section 924(c) of Title 18).” Section 924(c), in turn, defines drug trafficking crimes as felonies punishable under the Controlled Substances Act (CSA). And the CSA defines a felony as ” “ any Federal or State offense classified by applicable Federal or State law as a felony.’” The issue, after the three-step definitional inquiry, is whether a drug crime that is classified as a felony under a particular state’s laws is an aggravated felony for purposes of the INA. The U.S. circuit courts of appeals are split, according to the Brief for the Petitioner in Lopez filed by Patricia G. Mattos, a St. Paul, Minn., solo who represents Lopez. She notes that the 2nd, 3rd, 6th, 7th and 9th U.S. Circuit Courts of Appeals have held that a “state-law drug possession felony is not an aggravated felony for federal immigration purposes,” but the 5th and 8th U.S. Circuit Courts of Appeals have held otherwise. According to Crooks’ Brief for Petitioner in Toledo-Flores, there are two approaches. Under what he calls the federal-felony approach, some courts find that “a conviction for simple possession will qualify as an “aggravated felony’ only if it is punishable as a felony under federal law” Other courts, under the state-felony approach, find that a conviction for simple possession of a controlled substance is an aggravated felony if it is punishable under the specified federal statutes and was a felony in the state where the defendant was convicted. During his 10-minute argument, Crooks will urge the high court to define “aggravated felony” as crimes that are only punishable by a felony under federal law, for uniformity’s sake. Mattos believes that, for equal protection reasons, only crimes that are felonies under federal law should constitute aggravated felonies under the INA. “If you have a situation where an immigrant in state A is convicted of a particular crime that is a felony, but in state B that same crime is not a felony, you have a situation where your fate depends on where you live,” says Mattos. “What we’re saying is that you need to look to federal law. And if it would be a felony under federal law, that is the standard to be used in immigration cases.” But the solicitor general’s brief argues that Congress specifically made the definition of aggravated felony broad to cover a variety of drug offenses, including state felony offenses that would be misdemeanors under the INA. “The term “aggravated felony’ in the INA is a “term of art created by Congress to describe a class of offenses that subject aliens . . . to certain disabilities’ ” according to the solicitor general’s brief. “ Congress consistently employs the term “felony’ to mean that the convicting court jurisdiction has authorized a prison sentence of more than one year.” Edwin Kneedler, a deputy solicitor general handling the case, could not be reached for comment. Kathleen Blomquist, a spokeswoman for the solicitor general’s office, declines to comment. “Compelling arguments” The decision in Lopez and Toledo-Flores will impact few jurisdictions as much as it will impact the 5th U.S. Circuit Court of Appeals, which includes Texas, Louisiana and Mississippi. That’s especially true for the region near the Texas-Mexico border, where drug and criminal immigration cases flood U.S. district courts. According to the U.S. Sentencing Guidelines Commission, in fiscal year 2005, 7,121 sentences � 46 percent � 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. “They need to answer this question in both areas,” Bemporad says “And it’s not surprising they took a 5th Circuit case.” Appeals such as Toledo-Flores are common in the 5th Circuit, which regularly affirms appeals of such sentences. That’s because the 5th Circuit long ago took a broad view of what constitutes an aggravated felony, when reviewing the sentences of defendants convicted of illegal re-entry. In a series of decisions, the 5th Circuit decided that state felonies that would be considered misdemeanors in federal law are nonetheless aggravated felonies, Bemporad says. As noted in his brief to the Supreme Court, Toledo-Flores was convicted in 2003 in the 248th District Court 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 River near Laredo. He pleaded guilty to illegal re-entry that same year before U.S. District Judge George Kazen of Laredo, 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 and appealed to the 5th Circuit. Last year, the 5th Circuit rejected his appeal in a two-sentence unpublished opinion. “It’s just been routine, and we follow the law that’s been the law of the circuit for a long time,” Kazen says. “Here the public defenders routinely file objections that that’s bad law, and I guess it’s now being taken up.” “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.” Toledo-Flores has since been deported to his home country of Mexico after serving his sentence but is still technically under the terms of one year of supervised release, Crooks says. In El Paso, U.S. District Judge David Briones says he often sympathizes when aliens object to their stiff illegal re-entry convictions after he finds they have prior aggravated felony convictions for minor drug offenses. “I always tell them that I agree with them, but I have to follow the 5th Circuit,” Briones says. But Briones believes it’s likely that the Supreme Court will agree with the immigrants’ arguments in Toledo-Flores and Lopez, much as they did in 2004′s Leocal v. Ashcroft. In that case, a unanimous Supreme Court ruled that state DWI statutes that either do not have a mens rea component or require only a showing of negligence in the operation of a vehicle are not “crimes of violence” for purposes of the INA � a designation which would have made the offense an aggravated felony. The Leocal decision caused Briones to re-sentence numerous immigrants who were given harsh prison terms for illegal re-entry because they had previous DWI convictions, he says. “I’ll be interested to see if this comes back,” Briones says of Toledo-Flores and Lopez. Immigration impact There’s little doubt that the decision 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 U.S. Department of Justice. One of the busiest areas for immigration courts in the country is South Texas, where courts in Harlingen processed 34,321 immigration cases in fiscal year 2005. 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 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. 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 U.S. Circuit Court of Appeals. Lopez argued that his state law conviction “for simple possession was not a qualifying “aggravated felony,’ ” according to his brief, but the 8th Circuit affirmed the immigration court’s decision. When an immigration court makes a finding than an immigrant has been convicted of an aggravated felony, the judge only considers the crime the immigrant has committed, not the totality of his circumstances, including family history and the immigrant’s standing in the community, says Benita Jain, a staff attorney with the New York State Defender’s Association’s Immigrant Defense Project who filed an amicus brief in the case. “There are something like 12 million lawful residents in the United States,” Jain says. “To have a situation where an immigration judge can’t consider anything but a crime is not a system of equal justice at all.” In 1996, Congress expanded the definition for what constitutes an aggravated felony to crimes that aren’t even felonies under most state laws, says Joe Vail, a former U.S. immigration judge who now directs the immigration law clinic at the University of Houston Law Center. “The term sounds horrible,” Vail says. “But when you look at what is considered an aggravated felony, a shoplifting charge with a one-year suspended sentence is an aggravated felony.” The question over which crimes should be deemed aggravated felonies is an issue that needs clarification, says Don Cassidy, deputy chief counsel for Immigration and Customs Enforcement in Houston. “I don’t think anyone anticipated this confusion when they wrote the statute,” Cassidy says. “But it’s a legitimate issue and it needs fixing. I don’t think it’s right or wrong. It’s just what Congress wants and having the Supreme Court telling us what to do. If the Supreme Court tells us it’s not an aggravated felony, that’s fine by us.” John Council’s e-mail address is [email protected]

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