Immigrant crimes: Who deserves deportation?
Bob Egelko, Chronicle Staff Writer
Tuesday, December 15, 2009
(12-14) 17:16 PST SAN FRANCISCO -- Courts on two fronts looked for boundaries Monday on an important question of federal immigration law: What crimes are so serious that they require deportation for any noncitizen who commits them?
A federal appeals court ruled in a case from Solano County that statutory rape doesn't always require deportation. The U.S. Supreme Court agreed to decide whether a legal immigrant in Texas must be deported because of a second misdemeanor conviction for drug possession.
Both cases involve a law signed by President Bill Clinton in 1996 that requires deportation of any immigrant, legal or illegal, who commits an "aggravated felony," a category of crimes that courts are still trying to define. It includes some drug and sex crimes that are misdemeanors - punishable by no more than a year in jail - rather than felonies.
If a noncitizen has committed such a crime, "the judge can't take into consideration (U.S.) military service, the effect on a U.S. citizen spouse, parent or kids, or how long (the immigrant has) been here," said Benita Jain of the Immigrant Defense Project, which filed arguments with the Supreme Court in the drug case.
Immigrants convicted of other crimes can be also be deported if a judge decides they are dangerous and do not qualify for exemptions based on such factors as family hardships.
The Solano County case involves Luis Pelayo-Garcia, 42, of Vacaville, who entered the United States illegally from Mexico in 1985 at age 17. He was on the verge of gaining legal residency in 1998 when officials learned that he had recently been convicted of statutory rape.
According to his lawyer, Gloria Martinez-Senftner, Pelayo was working at a restaurant and raising three young children after his wife left him, and took a co-worker into his home along with her husband and daughter.
At age 29, he became involved with the daughter and intended to marry her, believing she was 18, his lawyer said. But when the girl became pregnant, hospital employees learned she was only 15 and called police.
Immigration judges said Pelayo's crime was an aggravated felony and ordered him deported, but they were overruled Monday by the Ninth U.S. Circuit Court of Appeals in San Francisco.
The federal law defines "sexual abuse of a minor" as an aggravated felony. But California's statutory rape law, prohibiting anyone older than 21 from having sex with a person under 16, does not require proof of physical or psychological abuse for conviction, the court said in a 3-0 ruling.
The Supreme Court case involves Jose Carachuri-Rosendo, who entered the United States with his family as a child and has been a legal resident since 1993. He pleaded guilty in Texas to misdemeanor marijuana possession in 2004 and pleaded no contest a year later to misdemeanor possession of the anti-anxiety drug Xanax without a prescription.
A federal appeals court ordered Carachuri deported, citing a federal law that allows any repeat drug offender to be prosecuted as a recidivist, which is defined as an aggravated felony even if the crimes were misdemeanors.
Carachuri, who was not charged as a recidivist in Texas, appealed to the Supreme Court, which agreed to decide his case by June.
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