Pleading with the Fifth

Jose Angel Carachuri-Rosendo was caught with a small amount of marijuana in Texas. The consequences could tear apart his family and end the life he’s built in the United States. Carachuri-Rosendo was a lawful, permanent resident who immigrated from Mexico to Texas when a child. After years working as a carpet installer, he was arrested in Harris county in 2004 for possession of less than 2 ounces of marijuana, a class B misdemeanor. A year later he pleaded no contest to possession of a Xanax tablet without a prescription, a class A misdemeanor. That was enough to deport him to Mexico despite the fact that his wife and four children are all U.S. citizens.

In most of the country, Carachuri-Rosendo might have served his sentence and gone home. But the 5th U.S. circuit court of Appeals, which covers Texas, Louisiana, and Mississippi, considers low-level drug possession a “drug trafficking crime.” That makes it an “aggravated felony,” grounds for mandatory deportation. one other appellate court—The 7th circuit, which covers Illinois, Wisconsin and Indiana—has made a similar ruling. Later this month the Supreme court will hear arguments over whether congress intended the phrase “drug trafficking crime” to mandate deportation of low-level possession offenders. The fate of thousands of immigrants detained or deported from the 5th circuit hangs in the balance.

“This is an Alice in Wonderland world where the government is imposing the most severe consequences of the immigration law on folks with simple possession offenses,” said Manny vargas, an attorney with the Immigrant Defense Project, which has filed a brief with the Supreme court supporting Carachuri-Rosendo.

The Carachuri-Rosendo decision has been particularly damaging to immigrants transferred to detention under the 5th circuit. (See “Crimmigration”) Carachuri-Rosendo’s case exposes one glaring way the court applies it’s own immigration law, but there are others. The 5th circuit is also the only circuit court that deports defendants after their convictions are thrown out.

“The 5th says, screw you, as far as we’re concerned, it’s still a conviction,” says Lisa Brodyaga, a seasoned immigration attorney in South Texas.

The 5th circuit is one of 13 circuit courts, but it sees around one-third of the nation’s immigration cases. It also receives more detainee transfers than any other circuit, and Texas leads all states in transfers received. U.S. Immigration and customs Enforcement (ICE) maintains that the transfers simply take advantage of excess prison space in Texas. Immigration attorneys have long contended that the government intentionally locates detention centers in remote areas far from legal counsel and evidence that might secure their release.

“I think we can prove that ICE has built some of its largest detention facilities and has intentionally transferred the largest number of detainees to remote locations under the 5th circuit,” says Alison Parker, deputy director in the U.S. for Human Rights Watch, which released a report, “Locked Up Far Away” documenting the transfer pattern. “The end result is a lot of people who might have had a way to stay in this country have ended up in a place where they are going to get sent away.”

Recently, light was shed on how ICE decides where to detain immigrants awaiting trial and deportation. During an ACLU lawsuit opposing conditions at ICE’s T. Don Hutto Residential center near Austin, attorney Barbara Hines, a clinical professor of law at UT, received an anonymous letter from an ICE whistleblower. The letter included an internal memo about the detention center in Hutto, where ICE officials expressed concern about putting the jail in Hutto because of its proximity to Austin and its broad base of NGOs and immigrant advocate groups. The memo suggests that ICE does consider the legal environment before transferring prisoners.

Immigration lawyers are optimistic that the Supreme court will overrule the 5th circuit on the definition of “drug trafficking.” The Supreme court recently ruled on the case of Lopez v. Gonzales, addressing whether drug possession considered a misdemeanor under the controlled Substances Act can be considered a drug-trafficking felony for immigration purposes. The court concluded such a ruling would be inconsistent “with any common sense conception of drug trafficking.”

A week after that decision, the judge in Carachuri-Rosendo’s case denied his appeal and deported him. But if the Supreme court finds in his favor, circuit courts will immediately have to abide by that decision, giving thousands of people who have already been deported a chance to return.