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During oral arguments Tuesday in an immigrants’ rights case, Justice Antonin Scalia made a reference to one of the parties, a Mexican who has been deported back to his country, as someone unlikely to keep from drinking tequila on the chance he could return to the United States. The comment raised eyebrows in the audience and offended some who were told about the remark afterward on the grounds that it perpetuates stereotypes about Mexicans. Lawyers directly involved in the case could not be reached or declined to comment publicly. The comment came during arguments in Lopez v. Gonzales and Toledo-Flores v. United States, challenges to the government’s interpretation of the federal law that allows deportation of immigrants who commit aggravated felonies. The question before the Court is whether the law covers those who are convicted of crimes that are felonies under state law but only misdemeanors under federal law. The case could affect thousands of immigrants with relatively minor drug offenses on their records. One issue is whether one of the cases is moot�Reymundo Toledo-Flores has already been deported back to Mexico because of his conviction in Texas for possession of 0.16 grams (about 0.005 ounces) of cocaine. His lawyer, assistant federal public defender Timothy Crooks, told the Court that the case is not moot because even though his client is in Mexico, he is still subject to the U.S. District Court’s jurisdiction and could face adverse consequences if he commits further offenses in Mexico or tries to return to the United States to visit his children, who are U.S. citizens. Scalia dismissed that argument as “an exercise in the conceivable” and added, “Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States.” Carlos Ortiz, former president of the Hispanic National Bar Association, was not in the audience but reacted strongly when told of the comment. “Justice Scalia is supposed to be very smart, but anyone who is supposed to be so smart would not and should not say something that insensitive. It is a really terrible comment, and he should be called on it.” Ortiz, who has long lobbied for the appointment of a Hispanic justice and more Hispanic law clerks to the high court, added, “This is the kind of incident that makes it so clear that the Court needs more diversity.” Scalia declined to comment on his remark. One lawyer who was in the audience, Benita Jain of the Immigrant Defense Project of the New York State Defenders Association, said the reference was unfortunate because most of the immigrants who could be affected by the case are “lawful residents who have been here since they were young.” She said those who face deportation if immigrants lose in the cases before the Court have been U.S. residents for an average of 14 years.Jain, who was part of a team that filed an amicus brief on behalf of the immigrants in the case, declined to comment further on Scalia’s remark except to say guardedly that he is “known for being colorful. It’s Scalia.”
Tony Mauro can be contacted at [email protected].

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