Under U.S. law, a legal resident who commits an "aggravated felony" is automatically deported. But a crime need not be aggravated or a felony to qualify: As several groups that defend immigrants' rights note in a recent Supreme Court brief, the category has been interpreted to include minor offenses such as selling a $10 bag of marijuana, selling counterfeit clothing, stealing a $10 video game, shoplifting baby clothes worth $15, forging a $20 check and pulling another woman's hair in a fight over a boyfriend.
The immigration consequences of criminal convictions are especially disproportionate in drug cases, where suspicion of foreigners converges with fear of the intoxicants historically linked to them. As two recent Supreme Court cases illustrate, this combination can result in prolonged detention and lifelong banishment of people who have lived here for decades, separating them from their jobs, their families and their communities, all for victimless crimes.
A noncitizen is deportable if he is convicted of any drug law violation except for "a single offense involving possession for one's own use of 30 grams (about an ounce) or less of marijuana."
In a case the Supreme Court decided last week, a Kentucky truck driver named Jose Padilla (not to be confused with the American citizen convicted of assisting terrorism) pleaded guilty to transporting marijuana.
Padilla, a Vietnam War veteran from Honduras, did not realize the plea meant he would have to leave the country he had called home for more than 40 years. Because his attorney wrongly assured him he would not be deported, the Court ruled that Padilla had been deprived of his Sixth Amendment right to "the effective assistance of competent counsel."
On the same day it announced that decision, the Court heard a case involving a Mexican immigrant, Jose Angel Carachuri-Rosendo, who became a legal U.S. resident in 1993 and more than a decade later served a 20-day sentence in a Texas jail for misdemeanor marijuana possession. The following year, he was caught with one tablet of Xanax, for which he served 10 days in jail.
According to the U.S. Court of Appeals for the 5th Circuit, these two trivial offenses added up to an "aggravated felony," which not only made Carachuri deportable but barred him from asking the attorney general for a "cancellation of removal."