A recent supreme court decision gives permanent residnets arreseted and convicted of a low leverl drug crime to appeal deportatin in immigration court.
IN most cases, this kind of issue, is set aside by the immigration court. However, you need to understand, that there are no gaurantees.
Your best strategy, if you have been ordered to a deportation hearing, is to retain an immigration attorney to appeal based on the following:
While it may seem contradictory that the U.S. Supreme Court would rule that a felony under state law is not a felony under federal law, that is exactly what the Court did on December 5, 2006 when it issued its decision in Lopez v. Gonzalez , 549 U.S. __, 2006 (Dec. 5, 2006).Jose Antonio Lopez has been a lawful permanent resident in the U.S. since 1990. In 1997 while living in South Dakota he was arrested, charged with, and plead guilty to, aiding and abetting the possession of cocaine - the equivalent to possessing the drug, which is a felony under South Dakota's state law. After being released from jail upon completion of his sentence, immigration authorities initiated removal proceedings against Mr. Lopez stating that he had been convicted of an "aggravated felony" under the Immigration and Nationality Act (INA). Any noncitizen - lawful permanent resident found guilty of an aggravated felony can be deported under federal law and is ineligible for relief from deportation based on length of residence or family ties/hardship. Consequently, Mr. Lopez was ordered removed by the Immigration Judge, with the order upheld by the Board of Immigration Appeals and the U.S. Circuit Court of Appeals for the 8th Circuit.The case was eventually brought before the U.S. Supreme Court and was decided on December 5, 2006. In making its decision, the Court looked to the definition of "aggravated felony" under federal law and the Controlled Substance Act (CSA). The government argued that Mr. Lopez should be considered an aggravated felon based on the fact that included in the definition of "aggravated felony" is a conviction for the "illicit trafficking in a controlled substance...including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code)." However, the Court disagreed, ruling that Mr. Lopez is not an "aggravated felon" because the element of commercial dealing or selling is not present in his state conviction of aiding another person to possess a drug nor is it present in the equivalent charge of possession. The Court then noted that under the CSA (federal statute), Mr. Lopez's possession crime would be considered a misdemeanor. Ultimately, the Court overturned the Court of Appeals and remanded the case for further proceedings before the Immigration Judge.What does this mean for the average, U.S. permanent resident (noncitizen)? Well, assuming that he or she is law-abiding and stays out of trouble, then nothing. However, if the permanent resident has a run-in with the law for drug possession, this Supreme Court decision could be the difference between being automatically subject to removal/deportation and being allowed to make a case for relief from deportation to remain in the U.S.The Court basically established that a charge of simple drug possession is not an aggravated felony under federal law even if it is considered a felony under state law. This does not mean that immigration authorities cannot initiate removal proceedings against a permanent resident that has been convicted of drug possession. However, it does mean that the permanent resident will at least have a chance to assert a defense in such proceedings, such as "cancellation of removal", where the individual's length of residence and family ties/hardship - among other factors, can be taken into account.PUBLISHED January 25, 2007 - "IMMIGRATION LAW FORUM"Copyright © 2007, By Law Offices of XXXXX XXXXXus, Chicago, Illinois
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).