The case of Jose Angel Carachuri-Rosendo cries out for sweeping immigration law reform at a time when such wholesale measures are low on the list of urgent congressional matters.
Carachuri-Rosendo, a native and citizen of Mexico, moved to Texas with his family when he was 4 years old. The family members were legal U.S. immigrants and he has resided in Texas ever since, now living with his fiancee and four children, all of whom are U.S. citizens.
Carachuri-Rosendo was convicted in 2004 of possession of less than two ounces of marijuana, and in 2005 he was convicted of a second drug-possession offense for having one anti-anxiety Xanax pill without a prescription.
He was deported to Mexico after the second drug conviction.
The government said the federal recidivist law allows the marijuana possession to be characterized as an aggravated felony requiring deportation even though Carachuri-Rosendo was tried in a state court under state law and was neither charged nor convicted as a repeat offender.
In May 2009, the 5th U.S. Circuit Court of Appeals in New Orleans affirmed a trial court's deportation verdict against Carachuri-Rosendo and the U.S. Supreme Court agreed to hear the case to establish consistency in federal law. Appellate courts have split 4-2 on similar cases -- the majority in favor of the immigrant defendant.
The high court is scheduled to hear the case of Carachuri-Rosendo vs. Holder March 31 to address whether legal immigrants convicted of repeat minor drug-possession crimes should be subject to deportation.
There are confusing differences in standards between state law, under which the initial criminal charge of drug possession is brought in most cases, and the federal law, which controls any subsequent immigration proceeding due to a defendant's criminal activity.
Thus, the issue becomes whether a second or subsequent drug possession offense should be elevated to recidivism and therefore to the status of an aggravated felony necessitating an immigrant's deportation.
The U.S. Board of Immigrant Appeals and the 1st, 3rd and 6th circuits maintain the more serious determination of recidivism applies only when the immigrant admits to or is convicted of a specific finding of recidivism. Only then may a second or subsequent drug possession be considered an "aggravated felony."
The 5th and 7th circuits, however, consider a subsequent possession offense an aggravated felony even where the prosecution does not attempt to have a judge or jury find the defendant to be a recidivist. The mere conviction of two or more simple misdemeanor drug possessions turns the immigrant's offense into a hypothetical aggravated felony.
Further, the label of aggravated felony automatically prevents an immigrant from seeking to enlist an immigration judge's discretionary power to overturn a deportation order.
This is a cause of concern for many immigrants in deportation proceedings.
The New York University Immigrant Rights Clinic, in preparing a friend-of-the-court brief, sought to gather stories from people in immigration proceedings who had two or more drug possession convictions -- especially those showing the harsh case law in the 5th and 7th circuits reinstated deportation orders following cancellation of deportation -- that might be persuasive to the high court.
The argument of U.S. Attorney General Eric Holder for the government is largely procedural, and lacking in a substantive, compelling argument for why the misdemeanors of a legal immigrant -- elevated, in this context, to serious offenses -- are to be considered more dangerous than similar crimes committed by a citizen.
The government's brief states: "Congress enacted the 'aggravated felony provision' of the Immigration and Nationality Act to address the serious threat to public safety and the significant costs imposed on society by criminal aliens in the United States. (The Act) reflects Congress's judgment that an alien who commits serious drug offenses should not be allowed to remain in the United States. Congress has long viewed recidivist possession as a serious drug offense."
In the same vein, Newsweek quoted Jim Gilchrist, president of the Minuteman Project in Laguna Hills, Calif., who seeks strict enforcement of existing immigration laws, as saying, "People need to know there are consequences for not respecting our laws, and if the law requires deportation, then so be it."
It should be noted, however, not a single friend-of-the-court brief has been filed to bolster the government case.
In contrast to such calls for strict adherence to the letter of the law, the briefs supporting Carachuri-Rosendo seek to cast the matter in a humanitarian light.
The friend-of-the-court brief of the American Immigration Lawyers Association in Washington and 15 other groups on behalf of Carachuri-Rosendo makes the point that, unlike a judgment of aggravated felony, none of the other drug-related grounds for removing immigrants from the country -- such as the controlled substance, drug abuser or addict grounds -- bar individuals convicted of minor offenses from seeking to overturn deportation orders.
The point is illustrated in the brief by several anecdotes. One of the stories is that of Karen Alsol, who is a permanent U.S. resident.
Alsol moved to the United States from Jamaica more than 16 years ago, has family ties in the country and has been continuously employed. She was convicted twice of misdemeanor drug possession for which she served jail time and successfully completed rehabilitation. She was put into removal proceedings, but because the grounds of her conviction did not bar cancellation of the deportation order, she was granted relief.
Alsol has since pursued her education, obtained her medical assistant's certificate and married a U.S. citizen.
Immigrant-rights advocates maintain similar success stories abound in situations where defendants eligible for removal were allowed to remain in the country. They are eager for the Supreme Court to take note of those stories and act to relieve the inequities caused by the confusing and apparently contradictory immigration laws.
One commentator on the Web site, AILA Amicus's Notes & Comments on Immigration Adjudication, said AILA's friend-of-the-court brief in Carachuri "represents a refreshing departure from our system's robotic and unemotional adherence to statutory interpretation. (It) asks more matter-of-fact questions: In light of the harsh consequences which flow from the 'aggravated felony' label, does the 5th and 7th circuits' interpretation of the INA make sense?
"Does it make sense to stretch the law, and re-characterize misdemeanor acts as felonious acts, in order to forcibly deport permanent residents? In doing so, aren't we categorically condemning the exact type of person (resident aliens with minor convictions but also established family and economic ties to our country) who would normally be deserving of a favorable exercise of discretion in Immigration Court?"
Although the Obama administration has said it would address the issue of comprehensive immigration reform, it appears to be interminably bogged down with arguably more-emergent matters.
"There's no chance that what advocates have termed a 'comprehensive immigration reform' will ever reach the president's desk," Newsweek quoted Mark Krikorian, executive director of the Center for Immigration Studies in Washington, D.C., as saying. "There might be smaller, more targeted legislation, but not a large reform bill."
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