Moncrieffe v. Holder, No.11-702: United States Supreme Court Holds That State Criminal Statute Penalizing The Sharing Of Small Amount Of Marijuana Does Not Constitute Aggravated Felony For Purposes Of Immigration Statute
It’s been a really busy week, but I found a recent opinion that I wanted to pass along to all of Florida’s criminal defense and criminal appeals lawyers out there. If you handle drug cases with potential immigration/deportation consequences (i.e, ANY drug cases where your client’s status is either unclear, or your client is clearly a noncitizen), then you should take a few minutes to read the United States Supreme Court opinion of Moncrieffe v. Holder, No. 11-702.
The facts in the Moncrieffe opinion are pretty typical: Moncrieffe, a Jamaican citizen, came to the U.S. legally at the age of 3. See Moncrieffe, slip op., pg. 3. During a 2007 traffic stop, cops found 1.3 grams (yes, grams) of marijuana in his car. Moncrieffe pled guilty to possession of marijuana with intent to distribute under Georgia law (obviously, Georgia law is a lot more harsh than Florida law). Under a Georgia statute which allows for more lenient treatment to first time offenders, the trial court sentenced Moncrieffe to 5 years of probation, after which his record would be expunged. See id.
Alleging that the conviction constituted an “aggravated felony” for purposes of 21 U. S. C. §841(a), punishable by up to 5 years’ imprisonment under 21 U.S.C. 841(b)(1)(D), the Government deported Moncrieffe, and the Board of Immigration Appeals affirmed. See id at pg. 3. After the 5th Circuit denied Moncrieffe’s petition for review, the United States Supreme Court granted cert, and reversed.
In holding that Moncrieffe’s conviction under the Georgia statute did not qualify as an “aggravated felony” under the Immigration and Nationality Act (INA), the Court rejected the Government’s application of the “categorial inquiry” or “categorial approach,” which is employed to determine if an offense constitutes an aggravated felony. See id , slip op., pgs. 4-19. Although Justice Sotomayor’s majority opinion is rather technical in nature, this line pretty much sums up what the Court thinks of the Government’s argument:
“In short, to avoid the absurd consequences that would flow from the Government’s narrow understanding of the categorical approach, the Government proposes a solution that largely undermines the categorical approach. That the only cure is worse than the disease suggests the Government is simply wrong.”
Id., slip op., pg. 19. Ouch.
Unfortunately for Moncrieffe and others in his situation, escaping aggravated felony treatment does not necessarily lead to a conclusion that deportation has been avoided. Rather, the Court cautioned that it only means that mandatory removal has been avoided. Rather, under 8 U.S.C. §1227(a)(2)(B)(i), a marijuana distribution offense still renders a non-citizen deportable as a “controlled substances offender.” See id., slip op., pg. 19. At that stage, the non-citizen will have to seek asylum, or cancellation of the removal proceedings, assuming the non-citizen meets the other criteria under 8 U.S.C. §§1158(b), 1229b(a)(1)–(2). As acknowledged by the Court, determinations of asylum or cancellation of removal proceedings are purely discretionary with the Attorney General.
What’s the take away from this case, you ask? Well, although the Court rejected the Government’s attempt to define possession of a small amount of marijuana as an aggravated felony, the fact remains that non-citizens convicted of even the most low level misdemeanor drug offenses, including first-time offenders who have successfully completed required probationary periods as a prerequisite to expunction, remain subject to possible deportation proceedings.