Supreme Court to hear deportation case

McClatchy NewspapersSeptember 27, 2011 

WASHINGTON — Carlos Martinez Gutierrez got caught smuggling three Mexican children into California. Now, his travails have reached the Supreme Court.

On Tuesday, the court agreed to hear Gutierrez's case and another that raise questions potentially crucial for other children of illegal immigrants. If Gutierrez wins, some immigrants may find it easier to avoid removal and stay in the United States.

"The case is significant," Gutierrez's appellate attorney, Stephen Kinnaird, said Tuesday, adding that "you can have possible breakups of families" in certain circumstances.

Gutierrez's attempted alien smuggling through the San Ysidro, Calif., port of entry in December 2005 does not, by itself, concern the court. Gutierrez's subsequent efforts to avoid being kicked out of the country, however, matter a great deal.

An immigration judge agreed with Gutierrez, a legal permanent resident, that he had lived legally in the United States long enough to deserve another chance following his 2005 arrest. The judge, later supported by the San Francisco-based 9th U.S. Circuit Court of Appeals, rejected Department of Homeland Security efforts to remove Gutierrez.

In calculating Gutierrez's legal residency in the United States, the immigration judge and the 9th Circuit included the years he spent with his family before he gained legal status on his own. The Obama administration argues this was too generous. Only Gutierrez's time since he gained independent legal status should count, the administration says.

"The practical consequences of the 9th Circuit's aberrant ... rule are significant," U.S. Solicitor General Donald Verrilli Jr. stated in a brief, adding that "it also impedes the government's high-priority effort to remove criminal aliens."

For good or for ill, the consequences will be particularly felt in California, Washington, Idaho and other Western states covered by the 9th Circuit, where Verrilli noted that nearly half of all so-called "cancellation of removal" applications arise. These are cases, like Gutierrez's, in which immigrants seek to avoid being removed from the United States.

Kinnaird, with the Washington, D.C.-based office of the Paul Hastings law firm, predicted that immigration advocacy groups and others eventually will weigh in with friend-of-the-court briefs.

The advocacy groups already are lining up on two other immigration cases to be heard by the Supreme Court during the October term, which begins Monday. The other cases, involving a Los Angeles resident convicted of voluntary manslaughter and a Southern California couple convicted filing a false tax return, center on the crimes that make immigrants subject to deportation.

Gutierrez's case is a little different.

When the Department of Homeland Security wanted to kick Gutierrez out of the United States, he sought protection under a law that turns on how long someone has been in this country.

The law permits a judge to cancel removal proceedings and let an immigrant stay in the United States if, among other conditions, the immigrant has been "lawfully admitted for permanent residence for not less than five years."

Gutierrez's family entered the United States illegally in 1988 or 1989, when he was 5. In 1991, his father attained legal U.S. residence status. The family eventually ended up in the San Francisco Bay Area, where Gutierrez attended high school near San Jose.

In October 2003, Gutierrez attained legal U.S. residency at age 19. Two years after that, with his father disabled and his mother unemployed, he agreed to smuggle several minors into the United States in exchange for $1,500.

Nonetheless, a judge ruled Gutierrez can stay in this country; in part because he met the legal residency requirement.

"The parent's admission for permanent residence (in 1991) was also imputed to the parent's minor children," Immigration Judge Zsa Zsa C. DePaolo reasoned.

The Obama administration retorts that the clock for Gutierrez really only started ticking in 2003, as "the actions and status of others, including the alien's parents, are irrelevant" in counting eligibility.

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