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Ninth Circuit to Decide if Drug Deportation Law Retroactive


December 1996

On October 15, the U.S. Supreme Court returned Mohammed Baher Elramly's deportation case to the U.S. Court of Appeals for the 9th Circuit. The Supreme Court wants the lower court to decide whether a provision in the new anti-terrorism law that mandates deportation of aliens convicted of drug charges can be retroactively applied. If the law is applied retroactively, it would strip legal permanent residents who have a drug conviction of any recourse in federal court to appeal an Immigration and Naturalization Service (INS) deportation order (Eva M. Rodriguez, "Losing Their Last Rights of Appeal?" Legal Times, October 21, 1996, p. 1).

Elramly came to the U.S. from Egypt in 1976, married a U.S. citizen in 1979, and had three daughters. He divorced in 1990 and eventually married another U.S. citizen. Elramly became a legal permanent resident in 1981, but in 1983 was arrested in Florida with delivering $100 worth of hashish. He paid a $2,700 fine and served a 60-day jail term reduced from 90 days for good behavior. In 1990, the INS targeted Elramly for deportation based on the 7-year-old drug conviction.

Elramly asked the immigration judge to make an exception under the Immigration and Nationality Act that allows the judge to waive deportation if the immigrant shows "unusual or outstanding equities." Since his 1983 arrest, Elramly has earned a bachelor's degree in geophysical engineering, won admission to a graduate program at the University of Michigan, had no other arrest record, and maintained steady employment. However, the immigration judge upheld the deportation order. Elramly lost an appeal in 1993 at the Board of Immigration Appeals (BIA), but on March 2, 1995, the 9th Circuit threw out the BIA's finding. Writing for the 9th Circuit, Judge William Canby Jr. said, "By treating Elramly's offense categorically as a 'very serious drug offense,' the BIA incorrectly lumped together a disparate range of drug offenses." The INS petitioned the Supreme Court for review and the court agreed, but in April 1996, President Clinton signed the anti-terrorism bill into law, leaving thousands of pending drug-related deportations up in the air.

"The question is: Without judicial review, is there a meaningful risk of an erroneous deprivation of liberty?" says Elramly's lawyer, Javier Rubenstein. Daniel Kanstroom, an assistant professor of immigration and criminal law at Boston College Law School, says the law denies due process to legal immigrants, many of whom have been here for many years, and who have spouses and children that are U.S. citizens.

California Attorney General Dan Lungren, supports the tougher deportation measures, arguing that immigrants know when they arrive in the U.S. that they risk deportation if they break the law. Nell Killburn Shapiro, president for litigation affairs at the Washington Legal Foundation, argues that the INS is better suited to adjudicate deportation matters than the federal courts. Ironically, Shapiro blames the 9th Circuit for being too "nice and humane," inspiring Congress to enact tougher measures against immigrants who break the law.