April 25, 2013
On Tuesday, the Supreme Court announced its decision in Moncrieffe v. Holder, in which the Court held that the defendant alien’s state law drug conviction did not require a “mandatory deportation.”
The defendant, Adrian Moncrieffe, came to the U.S. legally in 1984 when he was three years old. During a 2007 traffic stop, police found 1.3 grams of marijuana in his car (about the equivalent of about two or three marijuana cigarettes).
Moncrieffe pleaded guilty to possession of marijuana with intent to distribute, a violation of Ga.Code Ann. § 16–13–30(j)(1). As part of a statutory program of leniency for first-time offenders, Moncrieffe’s conviction was stayed pending five years of successful probation (after which his charge would be expunged altogether).
The federal government sought to deport Moncrieffe based on this charge, alleging that it was an “aggravated felony.”
The significance of “aggravated felony” relates to the Immigration and Nationality Act (INA), which gives the federal government authority to deport a noncitizen who has been convicted of an “aggravated felony.” Of particular significance in this case is that the INA also outright prohibits the Attorney General from granting discretionary relief from removal (e.g. asylum, cancellation of removal, etc) to an aggravated felon.
Among the INA’s definitions of “aggravated felony” is “illicit trafficking in a controlled substance,” which, although not defined by the INA itself, references “any felony punishable under Controlled Substances Act” (CSA) as qualifying.
A CSA “felony” is an offense for which the “maximum term of imprisonment authorized” is “more than one year.”
In other words, a noncitizen’s conviction of an offense under the CSA punishable by more than a year’s imprisonment is an “aggravated felony” for immigration purposes.
Hot Doc: Moncrieffe v. Holder
A conviction under state law such as Moncrieffe’s may qualify, but only if the state offense “necessarily” involved facts equating to the federal offense. When making this analysis, the noncitizen’s actual conduct “is quite irrelevant.”
The court found that Moncrieffe’s state law conviction of “possession of marijuana with intent to distribute” was not equivalent to the INA’s “illicit trafficking in a controlled substance,” and for several reasons.
First, the Court noted that, although the CSA criminalized the “possess[ion] with intent to…distribute…a controlled substance,” the penalties section of the CSA mitigated the severity of this crime to the level of a misdemeanor if the convicted person possessed “a small amount of marihuana for no remuneration.”
Since the Georgia statute would not “necessarily” be a felony under the CSA (it could be either a felony or a misdemeanor), Moncrieffe’s conviction was not “illicit trafficking in a controlled substance,” and thus was not an aggravated felony requiring mandatory deportation.
Second, the Court found that “trafficking” means “some sort of commercial dealing,” an element absent from the Georgia law.
Finally, the Court observed that it wasn’t “sensible that a state statute that criminalizes conduct that the CSA treats as a misdemeanor should be designated an ‘aggravated felony.’”
There’s no doubt that this is a significant ruling for immigration law, but the immediate impact for Moncrieffe is that, while he is still deportable, he has the opportunity to seek discretionary relief.
However, there are perhaps broader reaching implications to be found in the last paragraph of the majority opinion.
This paragraph notes that “[t]his is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.”
The majority then goes on to admonish the Federal Government for continually defying “the ‘commonsense conception’” of these terms and for being overzealous in its drug enforcement against noncitizens.
Since the majority, written by Justice Sotomayor, was joined by Chief Justice Roberts, and Justices Scalia, Kagan, Breyer, Ginsburg, and Kennedy – a seven justice majority – the rebuke carries particular weight.
If nothing else, it should clearly inform the government of where the Supreme Court stands on its overinclusive reading of “aggravated felony” and that the government will not fare very well on any other case it argues before the high court.
Whether the government heeds this warning remains to be seen.