The Supreme Court, in an 8-1 decision, ruled that in Lopez v. Gonzales conviction of a drug crime that is a felony under state law but only a misdemeanor under federal law is not the type of offense that may warrant deportation. The Court’s opinion, written by Justice Souter, held that “a state offense comes within a felony punishable under the Controlled Substances Act only if it proscribes conduct punishable as a felony under” the Controlled Substance Act.

The facts of Lopez v. Gonzales are as follows: Jose Antonio Lopez, a native of Mexico , entered the U.S. undocumented in 1985, and became a lawful permanent resident in 1990. In 1997, he was charged in state court in South Dakota with one count of possessing cocaine and one count of a conspiracy to distribute cocaine. Under South Dakota state law, his crime was a felony, leading to a potential prison sentence of up to five months. Though he was sentenced to the maximum amount, Federal authorities moved to deport him to Mexico , based upon the conviction for what they considered to be an “aggravated felony,” a charge that can lead to deportation. Under federal law, however, the crime could only be punished as a misdemeanor.

Justice Souter’s opinion said that under federal law, mere possession is not a form of “illicit trafficking” in drugs because that “connotes some sort of commercial dealing.” The court’s ruling clears up conflict among federal appeals courts, which were at odds with what warrants deportation under the Controlled Substances Act.

The decision only addressed the question of whether a drug offense amounts to an aggravated felony. The decision did not address the issue of whether an offense falls afoul of separate narcotics provisions in immigration law. Nevertheless, the decision means certain remedies such as cancellation of removal may now be available to certain persons in deportation proceedings.