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In a decision that could affect thousands of immigrants, the U.S. Supreme Court decided in an 8-1 ruling on Dec. 5 that immigration courts cannot deport aliens convicted of minor state drug offenses that are not felonies under federal law. But the justices declined to answer a similar question presented in a companion case that was appealed from Texas. In the immigration case, Lopez v. Gonzales, Jose Antonio Lopez was a lawful permanent resident living in South Dakota who was convicted in 1997 of the state law offense of “aiding and abetting another person’s possession of cocaine,” according to the opinion. Immigrants who are not U.S. citizens can be deported under the Immigration and Nationality Act (INA) if they are convicted of “aggravated felonies,” which are defined as “any felony punishable under the Controlled Substances Act,” according to 18 U.S.C. �924(c)(2). An immigration judge ruled that Lopez should be deported even though his crime was a state felony, not a felony under federal law. Lopez was ordered deported from the United States ? a decision affirmed by the 8th U.S. Circuit Court of Appeals. In the high court’s majority opinion, Justice David Souter reversed and remanded the 8th Circuit’s decision, because Lopez’s state law conviction was not a felony under federal law. “We hold that a state offense constitutes a �felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” In dissent, Justice Clarence Thomas held that a plain reading of the Controlled Substances Act would show that Lopez should be deported if he committed “any felony” � including both state and federal felonies. The high court declined to decide Toledo-Flores v. United States, ruling that cert was improvidently granted in the Texas case. Toledo-Flores involved the same questions presented in Lopez regarding what constituted an “aggravated felony” but in a criminal law context. Reymundo Toledo-Flores, a Mexican immigrant, was convicted in 2003 in state court in Houston for a state jail felony offense of simple possession of cocaine. When he waded across the Rio Grande River from Mexico into Laredo in 2004, the U.S. Border Patrol arrested him for felony illegal re-entry into the United States. At his illegal re-entry trial, a U.S. district judge sentenced Toledo-Flores to a harsher 24-month prison sentence because of his prior state “aggravated felony” conviction, and the 5th U.S. Circuit Court of Appeals affirmed the trial court. Toledo-Flores was deported to his home country of Mexico after serving his sentence. [See "Source of Aggravation," Texas Lawyer, Oct. 2, 2006, page 1.] Toledo-Flores’ lawyers argued at the high court that their client should not have received the higher sentence, because his state possession case was not a felony under federal law.

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