For committing many crimes, a person legally in the US but not a citizen can be deported. There is a discretionary waiver available as long as the person has not committed an "aggravated felony." What constitutes an aggravated felony can be a nuanced discussion. The Supreme Court set some new law today concerning this topic.
The defendant in this case was charged with two different misdemeanor counts of simple possession. When someone has two simple possession charges, the prosecutor has discretion to charge him as a "recidivist," meaning he has relapsed into previous illegal behavior. Being charged in this way would constitute an aggravated felony for purposes of immigration law.
The defendant in this case was not charged as a recidivist. He simply received two separate convictions for simple possession. So in reality, he is not an aggravated felon. The lower courts used a theoretical approach, though. The idea is that if the defendant could have been an aggravated felon, he is not eligible for any waiver.
The Supreme Court decided today that a defendant must actually be an aggravated felon to be barred from the waiver. In this case, the defendant only had two misdemeanors and was not given the opportunity to defend against a felony.
Thanks to the Supreme Court for clearing up this point of law - I'm sure it will be very helpful.
http://www.supremecourt.gov/opinions/09pdf/09-60.pdf
Subscribe to:
Post Comments (Atom)
Posts
How many voted for and against? Who voted for and against?
ReplyDeleteI know someone who transported a criminal back to Hong Kong, all the way from the US East Coast. Pretty expensive for the US government- two tickets to Asia. Unfortunately, he didn't get to do any sight seeing. What's the federal per diem if you lose, and then gain, a day?
Stevens wrote the opinion - no surprise there. But there were no dissenting votes. Roberts, Kennedy, Ginsburg, Breyer, Alito, and Sotomayor all joined Stevens' opinion while Scalia and Thomas both wrote concurrring opinions.
ReplyDeleteAnd that does sound like an expensive trip, but we needed to get the criminal back somehow - I can't really think of another way to do it.