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The U.S. Supreme Court on Dec. 5 ruled, 8-1, that an immigrant convicted of conduct that is a felony under state law but only a misdemeanor under the federal Controlled Substance Act is not subject to deportation under the Immigration and Naturalization Act (INA). Lopez v. Gonzales, No. 05-7664 In 1997, Jose Antonio Lopez, a legal permanent resident, pleaded guilty in South Dakota to aiding and abetting another person’s possession of cocaine. He was sentenced to five years’ imprisonment. After his release, the Immigration and Naturalization Service sought to remove him on the grounds that his conviction was a controlled substance violation and an aggravated felony. Lopez contested the aggravated felony charge, arguing that his offense wasn’t a felony under the Controlled Substance Act. The 8th U.S. Circuit Court of Appeals held that any drug conviction that is a felony under state or federal law is an aggravated felony under the INA. The justices reversed. Writing on behalf of the court, Justice David H. Souter said 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.” Souter’s opinion was joined by Chief Justice John G. Roberts Jr. and justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Samuel A. Alito Jr. Justice Clarence Thomas dissented. The U.S. Supreme Court also granted certiorari to three cases: The justices will decide whether individual taxpayers have the right to challenge in court congressional funding of the president’s “Faith Based and Community Initiatives.” The 7th Circuit had ruled that a group called Freedom from Religion could use the federal courts to challenge the programs. Hein v. Freedom from Religion, No. 06-157. The justices will decide whether the Racketeer Influenced and Corrupt Organizations Act (RICO) applies to government workers. Harvey Frank Robbins, a Wyoming rancher, claimed that several Bureau of Land Management workers had tried to extort a right-of-way access across his property. The 10th Circuit ruled that RICO could be applied to government employees. Wilkie v. Robbins, No. 06-219. The justices will decide whether a school has the right to censor speech contrary to its mission of discouraging drug use. Joseph Frederick, an Alaska high school student, unfurled a banner that read “Bong Hits 4 Jesus.” The school suspended him. The 9th Circuit held that the banner had not disrupted the school’s “basic educational mission.” Morse v. Frederick, No. 06-278.

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