Should Immigrants Be Deported for Drug Offenses?

When Jose Angel Carachuri-Rosendo was just 4 years old, his family moved from Mexico to Texas as legal U.S. immigrants. As the years passed, Carachuri-Rosendo firmly planted roots in the Lone Star State with his fiancée and four children, who were all U.S. citizens. But after a series of misdemeanor offenses, he was required to leave the place he had called home for more than 20 years. In 2004, he was convicted of possessing less than two ounces of marijuana, and in 2005 he was convicted of a second drug-possession offense for having a single anti-anxiety tablet, Xanax, without a valid prescription. After the second conviction, he was deported to Mexico.

In May 2009, the Fifth Circuit Court of Appeals in New Orleans upheld Carachuri-Rosendo's deportation. This outcome left several immigration-rights organizations baffled because other appeals courts had ruled against deportation in similar cases. Those who support Carachuri-Rosendo's position estimate that thousands of legal immigrants across the nation are affected by this same situation, although the Department of Justice hasn't released any official statistics. In December the U.S. Supreme Court decided to hear the case in an effort to clarify the law and help lower courts make consistent determinations. The court will specifically address whether legal immigrants convicted of repeat minor drug-possession crimes should be subject to deportation.

Immigrants' rights advocates say this case demonstrates how the cracks in our immigration system are continuing to expand, exposing a system that is desperately in need of repair. "No one wants dangerous criminals in this country, but our immigration system, meaning our immigration law and policy, is completely dysfunctional," says David Leopold, president-elect of American Immigration Lawyers Association (AILA), an organization that supports Carachuri-Rosendo's position. "Honestly, are we any safer? What's the national security benefit of putting law-enforcement resources into a person like [Carachuri-Rosendo] who is only guilty of minor offenses?"

Before 1996, immigration judges had discretion when deciding these deportation cases. A judge was responsible for evaluating individuals on a case-by-case basis, and if a legal immigrant had had no other run-ins with the law, a solid work history, and family ties in the United States, the judge was able to spare that person from deportation.

But in 1996, a new hardline legal basis for determining deportation was established. The new laws expanded the number of crimes that constitute aggravated felonies and took discretion away from immigration judges. And the current definition of aggravated felony has caused much confusion. "Despite what the term 'aggravated felony' sounds like, the government has applied it in ways that reach low-level offenses that aren't even felonies. In some cases, these offenses don't result in any jail time," says Manuel Vargas, senior counsel at the Immigrant Defense Project, an organization that filed a brief supporting Carachuri-Rosendo. Vargas emphasized this point by explaining that some shoplifting offenses have even been deemed aggravated felonies.

"Even rehabilitated, longtime permanent residents with U.S.-citizen children are denied a day in court to prove to a judge they should be allowed to stay. The law ties the hands of judges, making it impossible for them to ensure appropriate results in the cases they decide," says Rebecca Sharpless, assistant law professor and director of the Immigration Clinic at University of Miami School of Law.

"Mr. Carachuri-Rosendo isn't challenging the fact that he is subject to a deportation proceeding; he's simply asking for the right to apply for a waiver under immigration law," Vargas explains. "He just wants a chance to persuade the judge. If the negative factors outweigh the positive ones, he can still be deported."

Organizations that typically take a firm position on immigration enforcement haven't been vocal about deporting Carachuri-Rosendo. In fact, no groups have filed amicus briefs supporting his deportation. This doesn't surprise Mark Krikorian, executive director of the Center for Immigration Studies, which takes a more conservative stance on immigration issues. "This case can easily go either way," he says. "This guy isn't a masked murderer or a terrorist, but he's not a jaywalker either. We just need the Supreme Court to do its job and interpret the law."

Jim Gilchrist, president of the Minuteman Project, an organization advocating stricter enforcement of current immigration laws, takes a slightly tougher stance: "People need to know there are consequences for not respecting our laws, and if the law requires deportation, then so be it."

Although this case focuses specifically on minor drug-related offenses, because of the confusion around the definition of "aggravated felony" it's likely that other cases will crop up in the future. Next, the court might be forced to decide whether driving while intoxicated or various types of assaults fall under the definition, says AILA's Leopold. "The fact that the court system has to take its time and resources adjudicating questions about what constitutes an aggravated felony demonstrates that this statute needs to be fixed by Congress," he adds.

But when, if ever, will Congress decide to make this and other necessary changes to U.S. immigration laws? "Since 1996 we have been talking about immigration reform, and there really hasn't been any substantial reform in the past 14 years," says Chuck Roth, director of litigation for the National Immigrant Justice Center, an organization that has defended dozens of individuals in the same position as Carachuri-Rosendo.

The Obama administration has promised to take on the issue of comprehensive immigration reform, but it's still unclear whether that will include changes to current laws regarding the deportation of legal immigrants. And with the administration and Congress currently focused on health care, climate-change legislation, financial regulatory reform, economic stimulus, counterterrorism operations, and fighting two wars, skeptics wonder whether broad-sweeping immigration reform will ever come to fruition. "There's no chance that what advocates have termed a 'comprehensive immigration reform' will ever reach the president's desk," Krikorian says. "There might be smaller, more targeted legislation, but not a large reform bill."