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Justice Scalia's Surprising Impact on Immigration

Justice Scalia - His Surprising Impact on Immigration Cases

For all the screaming coming from conservatives about the necessity for Justice Scalia's seat to be filled after the election, there is a little known fact about Scalia that even the most strict constructionist, supposed hard-core right-winger would be shocked by: at least as it relates to aliens with criminal convictions, Scalia often voted in favor of the criminal alien!

Right-wingers are incapable of even saying Justice Scalia's name without first using the words "conservative" and thus naturally assume that Scalia's strict constructionist approach promotes the rule of law against criminal aliens. Yet, as legal scholars recognize (and politicians and those who blindly follow a party never do), a so-called strict constructionist approach can have unintended consequences. Take for example, Haitian citizen Josue Leocal. Leocal had been convicted of driving under the influence in Florida. He was put into deportation and an Immigration Judge ordered him deported, holding that because such a crime often ends in death, injuries and destruction of property, his conviction was a "crime of violence." Up to this point, aliens were routinely deported after being convicted of a DUI conviction. Leocal appealed his case all the way to the U.S. Supreme Court. In a unanimous decision, Justice Scalia voted that such a crime was not a crime of violence because the Florida law did not contain the required level of intent and did not contain an element of a substantial risk that physical force would be used to commit the crime. The result was that Leocal's deportation order was overturned and he was permitted to stay in the U.S. Of course Scalia's vote did not mean that he thought it was acceptable for aliens to drive drunk. But because Scalia read the elements of the Florida law strictly, the result is that, to this day, being convicted of a simple DUI, in itself, is not a basis to deport someone.

Another example is Jose Lopez, an alien from Mexico who entered the U.S. illegally in the 1980's. He was granted his green card under the amnesty program put into place by President Reagan. How did Mr. Lopez show his appreciation for his newly granted status? He proceeded to be arrested and convicted of felony possession of cocaine in South Dakota. Unsurprisingly, he was eventually ordered deported by an Immigration Judge. Like Leocal, Lopez appealed his case all the way to the Supreme Court, where Justice Scalia once again voted in favor of the criminal alien. Although Lopez had been convicted of a state felony, under Federal law, possession of drugs is not necessarily a felony and possession alone does not ordinarily fit within the definition of a drug trafficking crime. If they had ever been paying attention instead of fawning over his "conservative" credentials, I wonder what the right-wing would think about Scalia's vote?

How about Jamican, Adrian Moncrieffe? Adrian was arrested for having little more than an ounce of marijuana in his car, but later plead guilty to a misdemeanor charge of possession with intent to distribute. On it's face, it is the type of offense that sure sounds like a drug dealing crime and not merely a possession crime. Of course, Adrian was ordered deported but when his case reached the U.S. Supreme Court, you guessed it - Scalia voted for the criminal alien. Even though his conviction was essentially for drug dealing, Federal law recognized that he would not be treated as a drug dealer if he possessed only a small amount of marijuana. One can almost see the blood draining from the right-wing's face!

Finally, what about Tunisian citizen, Moones Mellouli, who came to the U.S. on a student visa? When he was in Kansas, he was convicted of possession of drug paraphernalia to store or conceal a controlled substance. One of the facts not in dispute was that he had attempted to hide four Adderall pills in his sock when police stopped him. Adderall is a prescription pill and is a controlled substance under both Kansas and Federal law. Obviously being a drug conviction, he was ordered deported by an Immigration judge. The problem was that the charging documents and the plea agreement never identified the type of pills. When the case came to the Supreme Court, Scalia voted that Mellouli could not be deported. The reason was the interplay between the Federal immigration and drug laws and the Kansas drug laws. An individual can only be deported for drug crimes in which the controlled substance is defined by Federal law. But in Mellouli's case, the Kansas law contained a number of controlled substances that are not included on the Federal list and because the criminal documents never identified the controlled substance, Scalia could not state whether the pills that Mellouli was trying to hide were on the Federal list - even though everyone involved (even Scalia) knew the pills were Adderall!

Shocking outcomes? Only if you have a belief that strict constructionism means that the law will always punish criminal aliens. The fact is, that in each of these cases, Scalia followed the black letter law and if it meant that a criminal alien would not be deported, so be it.

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