Pubdate: Wed, 02 Aug 2000
Source: San Francisco Examiner (CA)
Copyright: 2000 San Francisco Examiner
Contact:  http://www.examiner.com/
Forum: http://examiner.com/cgi-bin/WebX
Author: Bob Egelko of The Examiner Staff

COURT: INS CAN'T DEPORT FIRST-TIME DRUG OFFENDERS

Legal immigrants with a single conviction find some protection in appeals
court ruling.

Immigration lawyers say hundreds of foreign-born Californians with one-time
convictions for drug possession will be shielded from deportation by a new
federal appeals court ruling.

Overturning an Immigration and Naturalization Service policy, the 9th U.S.
Circuit Court of Appeals ruled Tuesday that legal immigrants could not be
deported for a drug possession conviction that had been "expunged," or
erased from the books, under state law.

Expungement is available in California for first-time offenders who have
completed probation, usually a period of one to three years, without
violating its conditions. Typical conditions include passing random drug
tests, reporting regularly to a probation officer, attending drug
rehabilitation and obeying all criminal laws. Those whose sentences include
a state prison term of a year or more are ineligible.

The issue is crucial for many non-citizens because federal laws requiring
deportation for criminal convictions have been greatly expanded in recent
years.

Crimes that are now grounds for automatic deportation include any adult drug
conviction, no matter when it occurred, except possession of up to 30
grams - about an ounce - of marijuana. Tuesday's ruling bars deportation if
the conviction was expunged.

The court did not decide whether expunged convictions for other crimes could
still be grounds for deportation. Even so, hundreds of immigrants in
California, and many more in the circuit's other eight states, will be
protected by the ruling, said two San Francisco lawyers who took part in the
case.

"It's going to have a big impact on people in California," said Katherine
Brady of the Immigrant Legal Resource Center. Under the INS policy, she
said, "for first-offense simple possession of a drug, you'd be ripped away
from your family and job, and even if you lived here 30 years with a green
card you'd be gone."

"It's hugely significant, but it's a narrower decision than we had hoped
for" because non-drug cases remain unresolved, said attorney Robert Jobe.

INS spokeswoman Barbara Greenberg said officials were reviewing the ruling
and had no comment. The government could ask the full court for a rehearing
or appeal to the Supreme Court.

The case involved immigrants from Arizona and Idaho, both longtime legal
residents, who faced deportation orders because of drug convictions that
were later expunged under state law. The INS previously had not sought
deportation of immigrants whose convictions were expunged, but argued that
those protections were eliminated by a federal immigration law that took
effect in 1997.

The appeals court disagreed, saying immigrants were entitled to be treated
equally under state and federal law. The court said Congress, in the 1997
law, had shown no intention of repealing a 1970 federal law that allows
federal defendants to get their convictions for first-time drug possession
expunged.

The 1970 law, passed at a time of widespread drug use, was intended to
protect otherwise law-abiding young people from the harsh consequences of
criminal convictions, said Judge Stephen Reinhardt in the 3-0 ruling. He
said the constitutional guarantee of equal protection required the same
treatment for immigrants convicted under state drug laws.
- ---
MAP posted-by: Don Beck