For over 10 years, judicial discretion has been absent from the review of many minor criminal convictions in the deportation context.

Offenses considered small under state law are often deemed aggravated felonies under immigration law. Aggravated felonies lead to the near automatic loss of an immigrant’s lawful permanent resident status.

Today, the Supreme Court took an extended look at the issue.

In the first case, Padilla v. Kentucky, the Court blocked the deportation of a Vietnam veteran from Kentucky. He had pled guilty to trafficking marijuana. His lawyer had told him erroneously he did not have to worry about his immigration status because he had lived legally in the U.S. for 40 years.

In his opinion, Justice Stevens noted, “The drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes.” For this reason, lawyers must inform immigrants about the risk of deportation before entering a guilty plea.

In a second case, Carachuri-Rosendo v. Holder, the Court did not reach a decision. They took under consideration whether a Texas man could be deported for possessing one tablet of Xanax, an anti-anxiety drug, after he had pled guilty to having less than two ounces of marijuana the year before. Both convictions were misdemeanors.

Nicole Saharsky, on behalf of the Solicitor General, defended the strict legal standards. She stressed Congress had taken a hard line on criminal aliens, especially recidivists. Since a second drug crime is punishable as a felony in some states, she stated, it qualifies as an aggravated felony.

Writing in the Huffington Post, H. Lee Sarokin, who sat on the federal bench for 17 years, asked “When Does Deportation Become Cruel and Unusual Punishment?”

He wrote:

“Many of these persons facing deportation have lived in this country for years, for many — virtually their entire lives. They have wives and children and parents here. They have substantial ties to the community. Deportation for them is often more severe than any prison term. We must distinguish between the criminal and the minor offender in the same way that we do for our citizens. Leaving one’s family, friends and home is too great a punishment to impose so cavalierly. We need some greater sense and sensibility when it comes to deportation.”

Having practiced as a deportation defense attorney in San Diego and Escondido when the demise of judicial discretion started, I agree with Judge Sarokin.

A line of rationality must be drawn between serious and minor crimes. Immigration judges should be allowed to intervene on behalf of deserving immigrants.

Hopefully, today represents a new watershed for immigration law. The day fairness made a comeback in deportation proceedings.

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