Now Mr. Lemaine, 28, is among thousands of noncitizens whose fate may hinge on a case to be argued on Wednesday before the United States Supreme Court, in a challenge to the way the government interprets immigration laws about drug-related convictions. The government maintains that for deportation purposes, two convictions for drug possession add up to the equivalent of drug trafficking, an “aggravated felony” that requires expulsion and prohibits immigration courts from granting exceptions based on individual life circumstances.
That interpretation of laws passed in 1996 has been rejected by four judicial circuits, including New York’s. But two circuits have upheld it, most notably the United States Court of Appeals for the Fifth Circuit, which covers Louisiana and Texas — states where the government routinely transfers tens of thousands of immigration detainees each year, mainly from the Northeast.
The case before the Supreme Court, Carachuri-Rosendo v. Holder, involves a longtime legal resident of Texas who was deported to Mexico based on convictions for possession of marijuana and a tablet of Xanax, an anti-anxiety drug. His fiancée and four children, all United States citizens, were left behind.
But Mr. Lemaine’s case, cited in amicus briefs by several defense lawyers’ associations, illustrates the chaotic effect of the split among the circuits, coupled with the increased use of transfers in the nation’s network of detention centers.
Unlike the criminal justice system, which must deal with defendants in the jurisdiction where their offenses occurred, immigration authorities can send detainees anywhere in the country, without notice or legal counsel, and start deportation proceedings wherever they choose. And the Obama administration has stepped up detention and deportation of so-called criminal aliens, including many legal immigrants with low-level drug convictions.
Mr. Lemaine, whose father is a United States citizen, faced an immigration judge in Harlingen, Tex., almost 2,000 miles from this blue-collar community just east of the Queens border. The judge decided that under Fifth Circuit rulings, two marijuana violations made Mr. Lemaine a “recidivist felon” ineligible for bond or for any relief from deportation, even though his first marijuana offense had been dismissed.
The government’s own Board of Immigration Appeals rejects that interpretation of the law, but says it is bound by it when deciding cases from circuits where it prevails, including the Seventh, covering Illinois, Indiana and Wisconsin. Proponents argue that their view reflects Congressional intent to be tougher on all drug offenses, and to sharply narrow judicial discretion.
In a sense, Mr. Lemaine was lucky. Unlike 86 percent of immigration detainees who face deportation in Texas, he had a lawyer. And though his mother, a nurse’s aide, could not pay an additional $10,000 for a federal appeal, someone referred the case to Gibson Dunn & Crutcher in New York, one of the few corporate law firms willing to fight a criminal deportation without a fee. Lawyers there filed a federal appeal.
Such twists are part of a system that requires immigration authorities to match the elements of a variety of state criminal statutes with federal criminal laws, and proceed as though the noncitizen had been convicted of the federal crime.
Three times Mr. Simowitz sought Mr. Lemaine’s release on an order of supervision while the appeal was pending. Three times, Immigration and Customs Enforcement officials refused, moving Mr. Lemaine from the government-run Port Isabel Detention Center near Los Fresnos, to private prisons run by the GEO Group in Pearsall and Karnes City, Tex.
Then, early on Jan. 11 — hours before an earthquake devastated Haiti — a new deportation officer suddenly decided that Mr. Lemaine was a good candidate for supervised release, and let him make his way back to New York on a Greyhound bus.
At the Port Isabel detention center, where he shrank to 145 pounds from 190 while waiting for his deportation case to be decided, he said, “they barely feed you.” But after a year, he found that leaving was worse.
He left a goodbye on his mother’s answering machine, only to learn at the last minute that he was not being dispatched to Haiti, but transferred to the South Texas Detention Center in Pearsall. When his mother, Marie Admettre, 57, finally reached him there, he urged her not even to try to pay for another appeal.
What helped him survive, Mr. Lemaine said, was a gift from Mr. Simowitz: “Gideon’s Trumpet,” the 1964 account of how a penciled petition to the Supreme Court by a poor prisoner led to a landmark decision: that criminal defendants, even when they cannot pay, have the right to counsel.
In his case, the Fifth Circuit recently said it would wait for the Supreme Court decision in Carachuri before ruling. Even if those decisions go in his favor, however, he is likely to return to the same immigration judge, who could still order him deported.
With deportations to Haiti suspended since the earthquake, that is likely to mean more detention in Texas.