a746: Drug Deportations (Haiti ruling) (fwd)

[Bob Corbett <corbetre@webster.edu>]

From: Greg Chamberlain <GregChamberlain@compuserve.com>

   PHILADELPHIA, Feb 12 (AP) -- In a decision at odds with other federal
appeals courts, the 3rd U.S. Circuit Court of Appeals has ruled that an
immigrant should not be automatically deported on the basis of a state
felony drug charge.
   The court ruled that an immigrant should be deemed an "aggravated felon"
and automatically deported only if the crime would also be considered a
felony under federal law. The decision rejected the views of seven other
circuit courts.
   "Under the approach espoused by those courts of appeals, as long as the
state drug conviction is a felony under state law, it need only be
punishable, either as a misdemeanor or a felony, under federal law" for it
to require deportation, Chief U.S. Circuit Judge Edward R. Becker wrote.
   As a result, he wrote, a person in a state where a drug offense is a
felony may face deportation while a person in a different state could be
allowed to stay, "simply because the two states punish the same crime
differently."
   "This cannot be what Congress intended in establishing a 'uniform'
immigration law," Becker wrote.
   The ruling means that David Gerbier, a native of Haiti who has been a
permanent U.S. resident since 1984 and was convicted in Delaware of drug
charges, now may seek cancellation of his deportation order from the U.S.
Attorney General. If the appellate court had not overturned the lower
court's decision that Gerbier is an "aggravated felon" under the
Immigration and Naturalization Act, his deportation would have been
automatic.
   The ruling applies only to federal courts under the jurisdiction of the
3rd Circuit -- in Pennsylvania, New Jersey, Delaware and the Virgin
Islands.
   Becker was joined by 3rd Circuit Judge Richard L. Nygaard. But visiting
Judge Thomas M. Reavley of the 5th Circuit, sitting on the 3rd Circuit by
invitation, disagreed.
   In a one-paragraph dissent, Reavley said the wording of the definition
of "aggravated felony" seems to "point to any state felony that would be
conduct punishable under federal law, rather than necessarily to a crime
that would be punishable as a felony under federal law."
   "I might join Chief Judge Becker's masterful opinion, however, if we
were surveying a new route; but too many circuit courts have chosen the
other way and I would follow them in the interest of consistency and
uniformity of federal law," he concluded.
   It was unclear if a government appeal was planned. A message left for a
U.S. Attorney's spokesman in Philadelphia was not immediately returned.