WISHING DOESN'T MAKE IT LAW

When noncitizens are convicted of aggravated felonies, federal law
makes it relatively easy to remove them from the country - and it
should. But the law is not a weapon for overzealous immigration
officials who want to deny immigrants fair deportation hearings.

The Supreme Court hears arguments on Wednesday about the removal of
one such immigrant, who committed a couple of minor drug offenses but
was treated as if he had committed an aggravated drug felony. The
court should use the case of Carachuri-Rosendo v. Holder to put an
end to this unfair practice.

Jose Angel Carachuri-Rosendo, a native of Mexico, was a lawful
permanent resident of the United States living in Texas. He was
engaged to an American citizen, and had four children who are
American citizens. In 2004, he pleaded guilty to misdemeanor
marijuana possession and was sentenced to 20 days in jail. A year
later, he pleaded no contest to misdemeanor possession of a single
Xanax anti-anxiety pill without a prescription, and was sentenced to
10 days in prison.

The government notified Mr. Carachuri-Rosendo in 2006 that he was
removable from the United States because of his Xanax plea. The
Immigration and Nationality Act allows a noncitizen facing removal to
seek discretionary cancellation, which lets an immigration judge
consider all of the circumstances of the applicant's life, but this
option is not available to noncitizens who have been convicted of an
"aggravated felony."

In Mr. Carachuri-Rosendo's case, the judge decided that his two
misdemeanors taken together constituted an aggravated felony -
because he could have been prosecuted for recidivist possession,
which is a felony. That made it possible to deny Mr.
Carachuri-Rosendo a hearing, even though he was never charged with
recidivism or any other felony.

Immigration officials across the country have used this twisted logic
to fast-track the deportation of many noncitizens who should be given
a shot at discretionary cancellation. Most appeals courts that have
considered the question ruled that immigration officials cannot do
this, but Mr. Carachuri-Rosendo's appeal was heard by the United
States Court of Appeals for the Fifth Circuit, in New Orleans, one of
two federal appeals courts that approve of the practice.

This should not be a hard case. Federal law makes noncitizens
eligible to seek discretionary cancellation of their removal as long
as they have not been convicted of an aggravated felony. Mr.
Carachuri-Rosendo was not convicted of a felony, and no amount of
conjecture about what might have happened changes that.

If the government believes noncitizens should lose their right to
seek discretionary cancellation after being convicted of multiple
misdemeanors, it should try to persuade Congress to change the law.
The justice system is diminished when the government tries to enforce
the law it wishes for, instead of the law that exists.