The 10th U.S. Circuit Court of Appeals in Denver, Colorado ruled last week that not all drug convictions in the state can trigger the deportation of an immigrant with a green card or prohibit an individual from obtaining legal status, the Colorado Sun reports.
In the case of Everette Johnson, a 50-year-old Bahamian man who has held a green card since 1977, the court said Johnson should not be deported for violating federal drug laws because of the substantial differences between Colorado and federal law.
Johnson pleaded guilty in 2016 to hydrocodone possession, a Class 4 drug felony, and sentenced to 18 months in prison. The conviction led the Department of Homeland Security to begin the process of revoking his green card and deporting him. Lower immigration courts sided with the government and backed the deportation. Deportations of green card holders occur when the holders violate federal laws.
However, Appeals Court Judges Joel M. Carson and Judge Robert E. Bacharach said in the decision that “a state drug conviction cannot qualify as a basis for removal if the state statute’s elements are broader than the federal analogue.”
“Although the Colorado statute may be divisible as to the particular schedules, the statute is indivisible as to the identity of the particular controlled substance. And because the Colorado statute includes morpholine as a schedule II controlled substance, and the [Controlled Substances Act] does not, the Colorado statute’s schedules sweep more broadly. Thus, no categorical match exists between state and federal schedules.” – Carson and Bacharach in the opinion
Johnson’s attorney, Hans Meyer, suggested that the ruling has the potential for older, similar, cases to be reviewed.
“Immigration courts used the wrong analysis when reviewing simple possession crimes and either took away people’s green cards for life or denied them the ability to apply for green cards for life,” he told the Sun.
Last year Colorado lawmakers passed a bill reducing the sentence for Class 2 misdemeanors in the state from a year in jail to 364 days because deportation is triggered for legal immigrants who are convicted of crimes that carry jail terms of a year or more.
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