Friday, December 08, 2006

Supreme Court Rules For Immigrant Rights

This past Tuesday, the Supreme Court struck down a lower court ruling that would have made it much easier for the Administration to harass and deport legal immigrants. As reported in the NYT:
The Supreme Court rejected the government's interpretation of immigration law on Tuesday, ruling that a noncitizen is not subject to mandatory deportation for a drug crime that, while a felony in the state where the crime was prosecuted, is only a misdemeanor under federal law.

The 8-to-1 decision restored to one category of immigrants, caught in the nearly impenetrable maze where immigration law and criminal law meet, the ability to avoid automatic deportation and the other dire consequences of being guilty of an "aggravated felony."
Here's a reference for aggravated felony. But in a nutshell, under U.S. Immigration law, a legal immigrant can be deported for immigration violations, national security and terrorism activities, or criminal violations. With the Anti-Drug Abuse Act of 1988, Congress got specific about the kinds of crimes that would justify deportation by creating the concept of aggravated felony, which specifies as grounds for deportation murder, drug trafficking, and illegal trafficking in firearms and destructive devices.

The list of offenses that fall under the "aggravated felony" category was expanded several times, and include even some misdemeanor offenses. Results of an aggravated felony decision are severe, and include the following:
  1. Ineligible to stop deportation. Many other deportable offenses allow a non-citizen to be able to apply for "waivers", or exceptions, to deportation. But no exceptions are available to aggravated felons.

  2. Unable to apply for other legal immigration status. Many persons with other violations, including some criminal violations that make them deportable, remain eligible to apply for asylum, lawful permanent residence (green card), and other routes to legal status spelled out in the INA if they meet other qualifications. Aggravated felons are disqualified from almost every provision of the law that would enable them to legalize their status or to retain existing legal status, such as a green card.

  3. Guaranteed to be detained. Aggravated felons, in addition to several other types of non-citizens, fall within the INA's "mandatory detention" provisions. This means that most will be detained until DHS is able to effect their deportation.

  4. Less access to immigration court. For the most part, non-citizens can only be deported after an Immigration Judge conducts a hearing and signs an "order of removal (deportation)". However, the INA allows DHS to deport aggravated felons who are not green card holders "administratively", that is, within the agency without having to take the case before an Immigration Judge.

  5. Less access to federal appeals courts. Aggravated felons are among a group of deportable non-citizens who have fewer legal rights to request a federal judge hear their case on appeal.

  6. Permanent ejection from the US. Most non-citizens who are deported from the US are not eligible to apply to return legally to the country for a period of from five to 20 years depending on their circumstances. But aggravated felons are permanently disqualified from ever returning to the US for any reason.
The law does not apply to illegal immigrants, and it has not been used primarily against recent immigrants either. In fact, the median length of residence for individuals charged under this law has been 14 years. That means half the people charged have been legally living and working in the
United States for 14 years or more.

I'm particularly heartened by the lopsided decision. Lone dissenter Clarence Thomas basically stated that if Congress had meant for aggravated felony to only apply to felony offenses, it should have said so.


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