“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Fifth Circuit judge Don Willett cast the deciding vote to approve the deportation of a permanent legal resident who has been in the US for almost 30 years. The June 2020 case is Alexis v. Barr.
Richard Lawrence Alexis came to the US from Trinidad and Tobago as a permanent legal resident in 1991. His mother, stepfather, three siblings, and young daughter are all US citizens.
In 2016, Alexis pled guilty to the Texas state offense of possession of less than one gram of a controlled substance. In 2018, the Department of Homeland Security (DHS) started proceedings to remove or deport Alexis, contending that he had been convicted of possession of cocaine, which is also a crime under federal law and is grounds to deport a legal resident. Alexis responded that the conviction did not specify what the substance was, and that in any event, Texas’ definition was broader that the federal law definition since it specifically includes chemical compounds known as “position isomers” that are not illegal under federal law. The Bureau of Immigration Appeals (BIA) determined that this could excuse Alexis only if he could specifically prove a “realistic probability” that Texas would or does prosecute people for possession of position isomers, which it claimed he did not, and thus affirmed an immigration judge ruling that Alexis should be deported.
On appeal to the Fifth Circuit, Trump judge Don Willett cast the deciding vote to affirm the BIA and approve the deportation. The majority acknowledged that the Texas definition of cocaine as a controlled substance was “facially broader” than the federal law because of the inclusion of position isomers, but agreed that it was Alexis’ burden to prove a “realistic probability” that Texas would or does prosecute for such possession. In fact, based on its interpretation of a prior Fifth Circuit case, the majority held that Alexis must point to an “actual case” where a state court so applied the law.
Primarily because Texas law does not require prosecutors to specify what type or compound of cocaine they are prosecuting, the majority itself admitted that it is “nearly impossible” for Alexis to point to an actual case where Texas prosecuted someone for possessing position isomers, and that he was in a “Catch-22 situation.” In fact, the author of the majority opinion, Judge James Graves, wrote a concurring opinion in which he stated that the test being applied to Alexis was “simply illogical and unfair.” But he and Willett, who did not join his concurring opinion, nevertheless applied the “actual case” test to Alexis and upheld his deportation.
Judge James Dennis strongly dissented. He pointed out that people like Alexis “will likely never” be able to point to actual cases in court records where Texas prosecuted for possession of position isomers, as the majority acknowledged, and explained that the previous Fifth Circuit decision relied on by the majority should be interpreted “more narrowly and realistically.” Properly interpreted, Dennis went on, the prior decision only requires that a person like Alexis identify a state case showing that the state applies its prohibition “in a different way” than the federal prohibition and that the application thus has the “realistic potential” to “reach conduct not covered by the federal statute,” which Alexis had done. Alexis’ appeal of the BIA order should thus have been granted, Dennis concluded, rather than subjecting him to an “unreasonable and insurmountable hurdle.”
As a result of Willett’s deciding vote, however, that is exactly what the majority opinion has done, upholding his deportation away from his family after living in the US for almost 30 years. The ruling also threatens to subject other legal permanent residents like Alexis to the same impossible situation.