Supreme Court To Obama: Put Fairness Back Into the Deportation Process

By Seth Freed Wessler Jun 17, 2010

As Obama’s administration continues its mad rush to the right on immigration–deporting more people than ever before in history–the Supreme Court has recently called for some small semblance of reason along the way.

In an important and unanimous decision issued this week, Carachuri-Rosendo v. Holder, the Court ruled that a documented immigrant convicted of two minor drug-possession charges will not face mandatory deportation but will be allowed to appeal for relief from an immigration judge.

It’s the second decision this year from the Court granting immigrants convicted of crimes new protections in the deportation process. The first, Padilla v. Kentucky, issued in March, requires defense attorneys to accurately advise their non-citizen clients of the potential immigration consequences of pleading guilty to a crime.

This week’s ruling, written by outgoing Justice John Paul Stevens, narrows the kinds of convictions that lead to mandatory deportation and tells immigration courts that the way they treat drug convictions must reflect what happens in criminal courts.

"The case sends a clear message that upholds judicial discretion in the immigration system. The decision is not about whether or not people will get deported but about whether they will get a hearing," said Alina Das, who runs the immigration law clinic at NYU.

Jose Angel Carachuri-Rosendo, a documented permanent resident who’s lived in the U.S. since he was five and is a father and married to a U.S. citizen, was arrested on drug charges–marijuana, one time, and the other time, a single tablet of Xanax, an anti-anxiety prescription drug often used for recreational purposes.

After his convictions, an immigration court ruled that Carachuri-Rosendo would face mandatory deportation based on his crimes. But the defense appealed to the Supreme Court, arguing that the actual criminal convictions were not significant enough to lead to that end.

Various legal experts said that the number of people who will now become eligible for a hearing could be anywhere from hundreds to the thousands.

But this means that the vast majority of those who face deportation as a result of a criminal conviction (100,000 last year) will still be barred from appearing before a judge to argue that the specifics of their lives–their kids, their homes, their businesses, their military service–are grounds for relief. That’s because most convictions do fall clearly into the category of crimes that immigration law deems ineligible for judicial discretion.

According to Nancy Morawetz, law professor at NYU, it’s highly unlikely that those who have already been deported as a result of situations like Carachuri-Rosendo’s will be able to get back to the United States. "The government’s position has been that they don’t have to do anything about mistakes they’ve made. Historically it’s been hard to get back after being deported," Morawetz said. "It’s ironic because while the government has been making a mistake to the tune of 9-0 Supreme Court decision, they don’t feel like they have to do anything about it."

The immediate impact of the decision, when coupled with the Padilla v. Kentucky case from earlier this year, may be to aid criminal defenders with immigrant clients in the future.

According to Bill Hing, an immigration law professor at the University of San Francisco, "because so many criminal cases end in plea agreements, criminal defenders defending immigrants just got a big hint about how to advise their clients to plea." Rather than taking a plea that could result in a conviction considered an aggravated felony, lawyers may now craft pleas that fall outside of the bounds of mandatory deportation. "This case and Padilla are very instructive for defense."

The decisions may have political implications. "This case," said Das, "is about a specific kind of case and does not deal with the myriad number of other things that cause mandatory deportation." It does, however, raise the question about "whether Congress can be pushed to reexamine why the government has been treating drug convictions so harshly in the immigration system."

The decision sends a clear and important message from the Court: that the pipeline from cops to jails to detention to deportation is operating in ways out of line with the fundamental principals of fairness. If this Court with it’s rightward lean can move in this direction, it’s not clear why the President cannot.

Photo: US Supreme Court/Franz Jantzen