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Supreme Court Decision Update - Lopez v. Gonzales

supreme2.jpgIt’s been a while since we had a new opinion from the Supremes, and I was starting to feel like they forgot about me. But now with Lopez v. Gonzales (PDF of the opinion), I feel loved again. Especially since a case about immigrants and drugs can’t be as boring as the impending patent case. I’ll take anything from the Supremes over that patent opinion.

QuizLaw Analysis: Here, the Supremes have basically made it a little easier for some immigrants to avoid being thrown out of the country when they get convicted of drug possession under a state law. The underlying legal teaching of this case is that when a state crime is considered a misdemeanor by the Controlled Substances Act, even if the state itself considers the crime a felony, that crime does not count as a “felony punishable under the Controlled Substances Act.” Because, as I just said, the Act considers it a misdemeanor. Sure, it seems like common sense, but lawyers hate common sense, so they needed the Supremes to explain this to them.

What’s this all about? Jose Antonio Lopez started off his life in the US as an illegal immigrant. But in 1990, he did right and became a legal permanent resident. In 1997, however, he did some wrong, and he was arrested in South Dakota and ended up pleading guilty to helping someone else get coke. This got him five years in the clink (although he got out after a bit more than two years, for being a good boy). Once released, the INS began removal proceedings to have him tossed out of the country because of this conviction. One ground for removal was because Lopez had a controlled substance violation. Lopez didn’t challenge this. But he did challenge the other ground, that this conviction counted as an aggravated felony.

The reason for this challenge is because, with just the first ground, Lopez could petition the Attorney General to cancel the removal proceeding. But the second ground, removal because of an aggravated felony, takes such discretion away from the Attorney General, meaning Lopez would have no recourse.

Seems straight forward, so where’s the complication? Well here’s the problem. While the Immigration and Nationality Act (the “INA”) says that any “illicit trafficking” of drugs is an aggravated felony, it doesn’t actually bother to define “illicit trafficking.” However, it does say that “illicit trafficking” includes a “drug trafficking crime,” and that’s defined as any felony under the Controlled Substances Act (the “CSA”).

Now, the crime Lopez was convicted of is not a felony under the CSA. But it is a felony under South Dakota law. So the INS argued that this qualifies it as an aggravated felony. Lopez, meanwhile, argued that since it’s not a felony under the CSA, this makes no sense.

The Immigration Judge decided that this was an aggravated felony under the INA, even though it’s only a misdemeanor under the CSA, because it is a felony under state law. So Lopez was ordered to be deported. And this order was affirmed by the Board of Immigration Appeals (the “BIA”) and the Eighth Circuit.

And because of a Circuit Split over the issue, the Supremes decided to lay down the law.

How’s the new Roberts Court doing with the whole “happy, friendly and unanimous” thing? Not so well. We almost had a unanimous opinion this time, penned by Justice Souter. However, Clarence decided to ruin it all - Scalia apparently took the leash off, and Thomas went off writing his own little dissenting opinion. All by himself. …look who’s a big boy now!

What’s the Souter majority have to say for itself? Quite simply, they hit us with a refreshing bit of common sense - if something’s a misdemeanor under the CSA, it just doesn’t qualify as a “felony punishable under the” CSA for the purposes of the INA. Even if it’s a felony under state law. Case closed.

Since the statute doesn’t define “trafficking,” Souter looked at the word’s every day meaning, where it’s normally understood to mean “some sort of commercial dealing.” Lopez’s crime was all about possession (and helping someone else figure out where to get some drugs), so there was no actual commerce (i.e., Lopez wasn’t buying or selling). To interpret things the way the feds want, it would mean that mere possession would generally fall under trafficking, and that makes the Court “very wary of the Government’s position” since it doesn’t comport with basic language. But the Court cites to Humpty Dumpty to explain that this doesn’t necessarily end the argument:

Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean “‘just what [he chose] it to mean - neither more nor less,’” and legislatures, too, are free to be unorthodox.

However, nothing here really supports that Congress wanted to define illicit trafficking in some funky way. And taking such an interpretation leads to tricky consequences, like the fact that the law of alien removal would depend, at least in part, on how each state chooses to classify its own crimes.

So what’s Clarence got his panties in a bunch about? As mentioned, Justice Thomas was the sole dissenting voice here. He thinks that Lopez’s crime does qualify as an aggravated felony under the INA because it’s a felony (under state law) and is punishable under the CSA. In other words, he thinks the rest of the Supremes are unnecessarily limiting application to federal felonies.

And he also finds their approach “unpersuasive,” and goes on to explain why. Not to belittle his rationale, but I’m hungover at the time of this writing, so if you want to find out why he thinks it’s all so unpersuasive, you can go read it yourself.

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Hey, what have you got against patents?