Not all Colorado drug convictions can trigger the deportation of an immigrant with a green card or prevent someone from obtaining legal immigration status, the 10th U.S. Circuit Court of Appeals in Denver ruled Friday in a case that advocates hope will help keep hundreds from being removed from the country.
The powerful court rejected a deportation order for Everette Johnson, a 50-year-old Bahamanian man who has had a green card since 1977, and sent the case back to the immigration court system.
In 2016, Johnson pleaded guilty to possessing hydrocodone, a Class 4 drug felony, and was sentenced to 18 months in prison. Because of the case, the Department of Homeland Security began the process of revoking his green card and deporting him.
Immigration courts sided with DHS and ordered Johnson’s deportation.
Johnson appealed and the case ended up before the 10th Circuit Court of Appeals where two judges sided with him, ruling that the drug conviction should not have triggered his deportation.
Deportations of people with green cards are triggered when they violate federal drug laws, and until the 10th Circuit Court of Appeals’s ruling, a violation of Colorado’s drug laws was, under immigration law, essentially considered as violating federal statutes.
But the judges found that since there are substantial differences between Colorado’s laws around possessing drugs and the federal ones, there can’t be a parallel immigration response.
“A state drug conviction cannot qualify as a basis for removal if the state statute’s elements are broader than the federal analogue,” Judge Joel M. Carson and Judge Robert E. Bacharach wrote in their decision.
MORE: Read the ruling.
(Cases before the 10th Circuit Court of Appeals are heard and ruled on by three judges. But the third judge overseeing the Johnson case, Monroe G. McKay, died in March, before a ruling could be issued. The case proceeded without him.)
Hans Meyer, a lawyer who represented Johnson in the case, said he hopes the ruling will allow others with green cards to remain in the country after a drug conviction and allow immigrants seeking to obtain legal permanent residency the ability to do so even if they have a drug-related run-in with law enforcement. He also thinks there is the potential for older cases to be reviewed.
“In Colorado, I think it gives us a chance to fix the legal mistakes of the past,” Meyer said. “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.”
Meyer believes the ruling means that any immigrant with legal status who is charged with violating a Colorado drug law that doesn’t mirror federal statutes cannot face deportation. Similarly, someone seeking legal status who has violated a Colorado drug law that isn’t mirrored in federal law won’t be automatically excluded from trying to get a green card.
“Not only does this provide clarity in the law,” Meyer said, “but it gives us an opportunity to take one step forward toward extracting ourselves from the foolishness of both the drug war and the immigration laws we have.”
Johnson lived in the Denver area with his mother before the case began, Meyer said, but he was removed from the U.S. to the Bahamas, where he currently lives.
The U.S. Department of Justice, which defended the deportation order, did not respond to a request for comment.
The ruling comes after Colorado lawmakers last year passed a bill reducing the sentence for Class 2 misdemeanors in the state to 364 days in jail from a year. The change was made because deportation is triggered for legal immigrants — those in the U.S. on a visa or who have a green card — who are sentenced to crimes that carry a penalty of a year or more.
Updated at 10:47 a.m. on Tuesday, Aug. 4, 2020: This story has been updated, after a source’s error, to clarify that Everette Johnson used to live in the Denver area but was deported to the Bahamas. The spelling of Everette Johnson’s name was also corrected after an error by the court.