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Supreme Court takes on issue of deportation of legal immigrants after nonviolent crimes

Two cases involve noncitizens whose guilty pleas on drug charges -- transporting marijuana and possessing one tablet of Xanax -- result in automatic deportation.

March 31, 2010|By David G. Savage

Reporting from Washington — The Supreme Court confronted in two cases Wednesday the stiff federal law that requires deportation of any noncitizen convicted of an "aggravated felony," even if that person has lived in the U.S. legally for decades.

The law was designed to capture and remove immigrants who commit violent crimes. Sometimes, however, it results in deporting a legal immigrant who pleads guilty to lesser violations.

In one case, decided Wednesday, the justices gave new hope to a Vietnam veteran from Kentucky who, based on his lawyer's advice, pleaded guilty to transporting marijuana. The lawyer had advised Jose Padilla, a native of Honduras, that he "did not have to worry about his immigration status" since he had lived legally in the United States for 40 years.

That advice was wrong. As soon as Padilla pleaded guilty to the drug charges, federal immigration agents said he was subject to automatic deportation.

By a 7-2 vote, the high court said the lawyer's bad advice violated Padilla's right to have a competent attorney.

"It is our responsibility under the Constitution to ensure that no criminal defendant -- whether a citizen or not -- is left to the mercies of incompetent counsel," said Justice John Paul Stevens. "We now hold that counsel must inform her client whether his plea carries a risk of deportation."

Stevens said that, since 1996, the "drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes" that can be an "aggravated felony." The definition of that term remains in dispute.

Justices Antonin Scalia and Clarence Thomas dissented, saying the Constitution did not require criminal lawyers to give advice on immigration matters.

The ruling is only a partial victory for Padilla, who said he would have not have pleaded guilty had he known the consequences. His case now will return to Kentucky.

In a second case, the justices heard arguments over whether a Texas man could be deported to his native Mexico because he had pleaded guilty to possessing one tablet of the anti-anxiety drug Xanax. The year before, Jose Angel Carachuri-Rosendo pleaded guilty to having less than 2 ounces of marijuana. The federal authorities said the second drug crime involving the Xanax pill could be considered an "aggravated felony" because he was a recidivist.

A Justice Department lawyer defended deportation in those circumstances as being in line with what Congress intended.

"Congress has taken a hard line on criminal aliens over the past 20 years," said Nicole Saharsky, an assistant to the solicitor general. "The offense here is drug possession. . . . But because it was a second offense, it could be punished as a felony."

She ran into skeptical questioning from Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, but it was not apparent that a majority of the justices were inclined to reject the deportation ruling.

The justices may not rule on this case until late June.

david.savage@latimes.com

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