Defend Yourself And Get Deported?

U.S. Supreme Court Justice Stephen G. Breyer intervened yesterday in the case of a Colorado man who faces deportation to Pakistan.

The Denver based 10th Circuit Court of Appeals held that his conviction for misdemeanor third degree assault in Araphahoe County, for which he spent 35 days in jail, counted as a aggravated felony for immigration purposes because he claimed self-defense in the case, a claim that was rejected at trial.  The 10th Circuit took the position that this claim of self-defense was sufficient to make the crime a violent felony.The 10th Circuit ruled that misdemeanors in Colorado could count as felonies, if they were violent, because they can be punished by up to two years in jail, rather than merely one year. It is not entirely clear why the 10th Circuit believes that a claim of self-defense makes an assault conviction more violent than an assault conviction that does not involve a claim of self-defense.

Harood Rashid has been a lawful permanent resident of the United States since 1997.  He has a wife and four children who are U.S. citizens.  His request for a stay is set forth here.

The case has a war on terrorism undercurrent.  According to SCOTUS Blog: “He has been held in federal custody for more than three years under criminal charges that have now been dismissed.”

Essentially, it appears that this is a case of immigration officials taking unprecedented measures to deport a man whom they are worried may have terrorist ties, despite the fact that this isn’t supported by strong evidence, possibly “because his family has roots along the Pakistan-Afghan border.” Federal prosecutors may have decided to drop a difficult case because they felt that they could have Mr. Rashid deported instead, under a broad reading of federal immigration laws.

Justice Breyer’s action is only temporary.  The 10th Circuit had stayed the deportation while an appeal to the U.S. Supreme Court was pending, and then changed its mind without any legal briefing and allowed the deportation to go forward.  His action prevents the case from being made moot before the U.S. Supreme Court can consider his petition for certiorari.  Unless four supreme court justices agree to hear the case, the petition will be denied, and Mr. Rashid will be deported.

Mr. Rashid has some reason to hope that the U.S. Supreme Court might take up his case.  The 10th Circuit’s unusual step of not allowing Rashid a stay of deportation while his appeal is pending has helped draw the high court’s attention to the case. Also, his case coincides with a recent decision on a similar topic and creates a circuit split, a common reason for the U.S. Supreme Court to review a case. 

In the case of Lopez v. Gonzales decided earlier this week, the U.S. Supreme Court ruled 8-1 that a drug offense that was a misdemeanor under federal drug laws was not an aggravated felony that required immigration officials to deport someone, even if it is classified as a felony under state law.  Mr. Rashid’s case involves another very broad reading of a different part of the same aggravated felony deportation law. 

The ruling against Mr. Rashid creates a split between four other United State Court of Appeals Circuits and 10th Circuit (which includes Colorado) on the circumstances when a misdemeanor offense can be classified as a felony for purposes of aggravated felony deportation rules.  The 3rd Circuit has held that a state law misdemeanor can never be an aggravated felony for deportation purposes, as have the 5th, 7th and 9th Circuits.

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Andrew Oh-Willeke

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