Minor Infractions: Supreme Court to Hear Case Involving Immigrants With Low-Level Possession Offenses

One week from today the Supreme Court will hear oral arguments in a case which can potentially impact countless legal immigrants and asylum seekers. The outcome hinges on whether the Court adopts the criminal law or federal immigration law approach to multiple possession offenses. Public policy organizations and legal service providers have argued against the federal immigration law approach, since it would trigger mandatory deportation for many lawful permanent residents.

In Carachuri-Rosendo v. Holder, the Court will consider whether two or more non-trafficking drug possession offenses must be automatically treated as a "drug trafficking aggravated felony" under federal immigration law. Typically, under criminal law, drug possession offenses are treated as misdemeanors and non-criminal violations. Possession crimes usually involve using or possessing drugs without any intent to sell or give them to another person; drug trafficking crimes usually involve some element of distribution or sale. By escalating drug possession offenses to aggravated felonies under immigration laws, this automatically triggers mandatory deportation. "Mandatory deportation is an extraordinarily harsh second punishment for lawful permanent residents and others who have already paid a penalty for drug possession," noted Benita Jain, Co-Director for the Immigrant Defense Project, in a recent press release.

Immigrants with drug possession offenses are generally subject to deportation but can request a hearing before an Immigration Judge to ask that their deportation be suspended or dismissed. Factors to be considered or presented include longstanding family and community ties, service in the U.S. military, employment history, and evidence of rehabilitation. The Immigrant Rights Clinic at New York University School of Law wrote a brief on behalf of a number of community organizations, civil rights groups, and immigrant justice organizations that profiled the stories of specific individuals affected by this legal issue. Two individuals with favorable outcomes include Donald Overton Powell and Gary Patrick Anderson.

Donald Overton Powell is a 60-year-old lawful permanent resident who arrived in the United States from Jamaica as a teenager over forty years ago. His mother and brother are U.S. citizens, and his two sisters are also lawful permanent residents. He has two U.S. citizen children and two grandchildren, whom he helps care for on a regular basis. His life in the United States has been marked by tragedy. For 15 years, he worked at a paper factory, where the inhalation of paper dust caused serious illness that required surgery. During this time, his father was shot and killed by a stray bullet. Mr. Powell was convicted in 1997 and 2001 for misdemeanor possession of a controlled substance. Since those convictions, he has remained free of drugs, stating "he cannot do drugs and take care of his grandchildren." In light of his equities, an immigration judge granted him cancellation of removal. However, the Government appealed this determination and eventually Mr. Powell's case went to the Second Circuit, where his case was joined with Ms. Alsol's. Following the Circuit's favorable decision, he is awaiting remand on his case so that his cancellation can be reinstated. In the meantime, he continues to maintain his connection to his family by helping care for his grandchildren.

Gary Patrick Anderson is a lawful permanent resident who has lived in the United States since 1984 at the age of 17. He has significant family ties in the Unites States, including two U.S. citizen siblings, a number of nieces and nephews, and a mother and brother who are lawful permanent residents. Mr. Anderson is diagnosed with mental illness and mental retardation, and for years suffered through lengthy hospitalizations. However, he began exhibiting marked improvement after connecting with a community-based treatment pr-vider that could address his mental health, substance abuse and housing needs. In the 2000s, Mr. Anderson pled guilty to two possession offenses. After his second plea, he was detained by Immigration and Customs Enforcement (ICE) and transferred to a facility in Texas, separated from his family and the support networks that were so crucial to his mental stability. He remained in detention for over two years, despite psychological evaluations finding that he was a limited flight risk, affidavits from relatives and psychiatrists, and no fewer than 98 letters of support from community members. His treatment providers eventually secured him counsel, who persuaded an immigration judge to transfer his case back to New York. He was finally granted cancellation of removal in early 2009 and was released from detention.

Immigrants with "drug trafficking" offenses, however, are barred from requesting a hearing before an Immigration Judge, regardless of the circumstances. "The government's harsh rule blocks our clients from making their case for why our nation would be better off if they remained in the United States, said Chuck Roth of the National Immigrant Justice Center. "Many of our clients have lived, worked, and built their entire lives in this country. They have U.S. citizen spouses, children, and parents who depend on them. They should get their fair day in court." Martin Escobar and Praxedis Castro-Rogriguez are two individuals, profiled in the brief submitted by NYU's Immigrant Rights Clinic, who did not get their day in court.

Martin Escobar is a lawful permanent resident who came to the United States almost 30 years ago and settled in the Chicago area. He worked as a tree trimmer to support his three daughters as they attended high school and college. In the 1990s, Mr. Escobar was convicted of misdemeanor possession of marijuana and possession of a controlled substance. He never served jail time for either of these offenses, which are his only two criminal convictions. Eight years later, based on these convictions, an immigration judge found him ineligible for cancellation of removal based on his convictions. The Seventh Circuit dismissed his appeal and he was ordered removed. His wife and children remained behind in the United States, where they are doing their best to maintain mortgage payments on the family home Mr. Escobar purchased before he was deported.

Praxedis Castro-Rodriguez has been a lawful permanent resident for 53 years and has lived continuously in the United States since he was five years old, when his parents emigrated from Mexico. Mr. Rodriguez has served honorably in the military and is a Vietnam War- era veteran. His wife and children are all U.S. citizens. He and his wife own their home and he has a solid history of employment. In 1984, Mr. Rodriguez was convicted of possession of marijuana and was placed on probation for 18 months. He was later convicted of possession of cocaine and given a suspended sentence of ten years probation. Mr. Rodriguez was placed in removal proceedings and denied the opportunity to seek cancellation of removal. Currently, his appeal is pending before the Fifth Circuit. Not only would deportation tear apart his family and require him to return to a country he barely remembers, but deportation would strip him of the Social Security benefits he has contributed toward for decades and the attendant Medicare benefits for which he qualifies.

According to a report released by Human Rights Watch (using statistics culled from Department of Homeland Security data), over 122, 000 individuals were deported between 1997 and 2007 because of non-violent offenses; 11, 000 of those were for marijuana possession offenses alone.

In Lopez v. Gonzales, the Court rejected the government's claim that a single drug possession conviction was automatically an aggravated felony under federal immigration law. Likewise, in Carachuri-Rosendo v. Holder, the Court should reject the claim that two or more non-trafficking drug possession offenses must be automatically treated as a "drug trafficking aggravated felony" under immigration law.