Pubdate: Wed, 31 Mar 2010 Source: New York Times (NY) Page: A22 Copyright: 2010 The New York Times Company Contact: http://www.nytimes.com/ Details: http://www.mapinc.org/media/298 Referenced: http://www.justice.gov/osg/briefs/2009/0responses/2009-0060.resp.html WISHING DOESN'T MAKE IT LAW When noncitizens are convicted of aggravated felonies, federal law makes it relatively easy to remove them from the country - and it should. But the law is not a weapon for overzealous immigration officials who want to deny immigrants fair deportation hearings. The Supreme Court hears arguments on Wednesday about the removal of one such immigrant, who committed a couple of minor drug offenses but was treated as if he had committed an aggravated drug felony. The court should use the case of Carachuri-Rosendo v. Holder to put an end to this unfair practice. Jose Angel Carachuri-Rosendo, a native of Mexico, was a lawful permanent resident of the United States living in Texas. He was engaged to an American citizen, and had four children who are American citizens. In 2004, he pleaded guilty to misdemeanor marijuana possession and was sentenced to 20 days in jail. A year later, he pleaded no contest to misdemeanor possession of a single Xanax anti-anxiety pill without a prescription, and was sentenced to 10 days in prison. The government notified Mr. Carachuri-Rosendo in 2006 that he was removable from the United States because of his Xanax plea. The Immigration and Nationality Act allows a noncitizen facing removal to seek discretionary cancellation, which lets an immigration judge consider all of the circumstances of the applicant's life, but this option is not available to noncitizens who have been convicted of an "aggravated felony." In Mr. Carachuri-Rosendo's case, the judge decided that his two misdemeanors taken together constituted an aggravated felony - because he could have been prosecuted for recidivist possession, which is a felony. That made it possible to deny Mr. Carachuri-Rosendo a hearing, even though he was never charged with recidivism or any other felony. Immigration officials across the country have used this twisted logic to fast-track the deportation of many noncitizens who should be given a shot at discretionary cancellation. Most appeals courts that have considered the question ruled that immigration officials cannot do this, but Mr. Carachuri-Rosendo's appeal was heard by the United States Court of Appeals for the Fifth Circuit, in New Orleans, one of two federal appeals courts that approve of the practice. This should not be a hard case. Federal law makes noncitizens eligible to seek discretionary cancellation of their removal as long as they have not been convicted of an aggravated felony. Mr. Carachuri-Rosendo was not convicted of a felony, and no amount of conjecture about what might have happened changes that. If the government believes noncitizens should lose their right to seek discretionary cancellation after being convicted of multiple misdemeanors, it should try to persuade Congress to change the law. The justice system is diminished when the government tries to enforce the law it wishes for, instead of the law that exists. - --- MAP posted-by: Richard Lake