Justices Debate Legal Threshold for Deportation

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The Supreme Court hears arguments on whether an immigrant can be deported for a crime that is a felony on the state level — but a misdemeanor under federal law. At issue is not whether someone should be deported for committing a felony, but whether states may set a tougher standard for staying in the United States than does the federal government, which has the power to regulate immigration.

MICHELE NORRIS, host:

At the Supreme Court today, arguments in an immigration case that could affect thousands of legal resident aliens in this country. At issue is a federal law mandating the deportation of anyone convicted of an aggravated felony and whether it applies to relatively minor drug convictions in state court.

NPR's Nina Totenberg has the story.

NINE TOTENBERG: In 1988, Congress passed a bunch of new and tougher immigration laws. One required the automatic deportation of any non-citizen convicted of an aggravated felony. An aggravated felony was defined as including drug trafficking offenses. Under the government's reading of the law, that can cover a wide range of people convicted in state court, from the established business man convicted when he was a teenager of marijuana possession to the drug dealer who's the scourge of the neighborhood.

At the argument today, one of those that will be affected by the court's ruling looked on from the public section of the courtroom. Lindy Simon(ph), a 43-year-old home healthcare worker from Brooklyn, came to this country from Trinidad when she was 11. A married mother and grandmother now, she was convicted in the 1990s of possession of marijuana. Though she received a suspended sentence and served no jail time, she was convicted under state law of felony possession. Under the Federal Controlled Substances Act, her crime would have been a misdemeanor and would not have required her deportation. But since she was convicted of a state felony, the federal government has ordered her deported.

Ms. LINDY SIMON: There are many Lindys out there, and I think they are all asking for the same thing, just a second chance.

TOTENBERG: In a somewhat similar case before the Supreme Court today, lawyer Robert Long told the justices that his client's crime did not meet the standard for deportation set out in federal law. Drug trafficking, he noted, is defined as any felony punishable under the Federal Controlled Substances Act, and his client's crime would have been punished as a misdemeanor under federal law.

Justice Kennedy: Would you agree that if the conduct were a felony under both state and federal laws, the state conviction would be enough to justify deportation?

Answer: Yes.

Lawyer Long got no easy questions from any of the justices. Drug trafficking, suggested Justice Alito, in any normal use of the term would include simple drug possession. But Chief Justice Roberts suggested a contrary view when he questioned Deputy Solicitor General Edwin Kneedler, who defended the deportation order.

It must give you pause, said Roberts, that your analysis of the term drug-trafficking crimes leads to the conclusion that simple possession equates with drug trafficking.

Justice Ginsberg pointed to the Constitution's provision giving Congress, not the states, the power to regular immigration. It seems to me unseemly, she said, in the immigration context to say that two people who have committed the identical act - one gets deported, the other doesn't.

Justice Souter: The problem here is that the state law and the federal law are at odds in determining the gravity of the offense. The federal law says it's a misdemeanor. The state law says no, it's a felony. And it seems very odd to say that for federal purposes, the state classification is going to trump the federal classification.

In a companion case, lawyer Timothy Crooks argued that even though his client has been deported, the case is still a live one, since the client is still on probation.

Get real, replied Justice Scalia. Nobody thinks your client is abstaining from tequila down in Mexico because he's still on supervised release.

A decision on the immigration question is expected later in the term.

Nina Totenberg, NPR News, Washington.

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