Washington The Bush administration urged the Supreme Court to declare that legal immigrants can be deported for drug offenses that are felonies in some states but only misdemeanors under federal law, as the court heard its first oral arguments of the new term Tuesday.
By law, the justices open their term on the first Monday of October. But because this year it came on the Jewish holiday of Yom Kippur, the justices postponed the first oral arguments until Tuesday.
At issue in the drug case are provisions of the 1996 immigration law that require any noncitizen guilty of an "aggravated felony" to be sent back to his country of origin, with no chance to ask for leniency. The law defines "aggravated felony" to include any drug trafficking offense that is a "felony punishable under" federal drug laws.
Federal appeals courts, however, have differed as to the precise meaning of that language. Some have upheld deportations based on state felonies, such as simple drug possession, that would not be felonies under federal law.
The seemingly technical dispute could have real-world consequences for thousands of green card holders. In 2005, the U.S. deported about 77,000 aliens with criminal records, of whom about 9.5 percent had arrests for drug possession, according to the Justice Department.
A Justice Department lawyer, Edwin Kneedler, said the court should read the statute to require deportation for felony state drug possession convictions. "Because the petitioner's underlying conduct here was punishable under (federal law), and was a felony under state law, they were properly found to have committed aggravated felonies," he told the justices, according to a transcript of the argument released Tuesday by the court.
It was the first time the court has released same-day transcripts of oral argument on its Web site, supremecourtus.gov, under a new policy announced last month.
But several justices asked Kneedler whether that was a strained reading of the statute. "(I)t must give you pause that your analysis is of a term, 'drug-trafficking crime' or 'illicit trafficking,' and your theory leads to the conclusion that simple possession equates with drug trafficking," Chief Justice John Roberts said.
Kneedler replied that "a lot of state statutes dealing with drugs do not, are not patterned directly after the federal statute and there is no reason why Congress would have insisted that they do so in order for this statute to operate sensibly."
The case is an appeal by Jose Antonio Lopez, a Mexican who entered the U.S. illegally to pick tomatoes 20 years ago, became a legal resident in 1990, and later opened two small businesses in South Dakota.
In 1997, state prosecutors there indicted him on charges of cocaine distribution and aiding and abetting cocaine possession. He pleaded guilty to the possession charge and served 15 months of a five-year sentence. Since his release from prison, federal authorities have been trying to deport him as an aggravated felon.
Lopez, who has a wife and two U.S.-citizen children, left for Mexico voluntarily earlier this year, but his case is not moot because, if he wins, he would be permitted to seek a cancellation of his deportation order and return legally to the United States.
On Monday, the court issued a list a cases it had rejected. Among them were:
¢ A lawsuit by parents objecting to a three-week class for seventh-graders on Islam. Jonas and Tiffany Eklund objected to pupils at a public school in California being given pages from the opening chapter of the Koran to read and being assigned to study Islam's Five Pillars of Faith in a world history unit on Muslim culture.
¢ The case of John Hansl, a member of the SS Death's Head battalion that guarded concentration camps at Sachsenhausen near Berlin in 1943 and Natzweiler in France in 1944. The government revoked the U.S. citizenship of Hansl, who sought to distinguish his case from other former Nazi camp guards by arguing he did not hide his wartime past or personally assist in persecution.
¢ A case by Ex-KISS guitarist Vinnie Vincent in which he claimed he was owed royalties for his contributions to the heavy metal band's 1983 album Lick It Up. Vincent, whose real name is Vincent Cusano, played with KISS from 1982 to 1984, co-writing "I Love it Loud," "Lick it Up" and other songs.