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Moncrieffe v. Holder, 569 U.S. _____ (2013)

Adrian Moncrieffe, a Jamaican citizen, entered the United States legally in 1984 when he was three (3) years old. During a 2007 traffic stop, police found 1.3 grams of marijuana (i.e. the equivalent of approximately two (2) or three (3) marijuana cigarettes) in Moncrieffe's car. Thereafter, Moncrieffe pleaded guilty under Georgia law to possession of marijuana with intent to distribute marijuana.

 

This conviction would later lead to other consequences for Moncrieffe. Under the Immigration and Nationality Act ("INA"), a noncitizen convicted of an "aggravated felony" is deportable, 8 U.S.C. § 227(a)(2)(A)(iii), and ineligible for discretionary relief. The INA lists as an "aggravated felony" "illicit trafficking in a controlled substance," including conviction of an offense that the Controlled Substances Act ("CSA") makes punishable as a felony (i.e.- by more than one year's imprisonment). A state conviction is a felony punishable under the CSA only if it involves conduct punishable as a felony under federal law. Possession of marijuana with intent to distribute is a CSA offense, 21 U.S.C. § 841(a), punishable by up to five years' imprisonment.

 

Citing the INA and the CSA, an immigration judge ordered Moncrieffe removed from the United States. The Board of Immigration Appeals subsequently affirmed, and the Fifth Circuit Court of Appeals denied a petition for review, rejecting Moncrieffe's reliance on § 841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration.

 

Rejecting the government's contention that that § 841(b)(4) was merely a mitigating sentencing factor, not an element of the offense, the Supreme Court reversed and remanded. The Court employed the "categorical approach," examining what the state conviction necessarily involved and not the facts underlying the case. Since a conviction under the Georgia's statute, alone, did not reveal whether either remuneration or more than a small amount was involved, Moncrieffe's conviction could correspond to either the CSA felony or the CSA misdemeanor. The Court also found that the government's proposal that noncitizens be allowed, during immigration proceedings, to demonstrate that their convictions involved only a small amount of marijuana and no remuneration was inconsistent with the INA's text and the categorical approach and would unduly burden immigration courts and the noncitizens involved. The Court further explained that escaping aggravated felony treatment does not necessarily mean escaping deportation, because any marijuana distribution offense renders a noncitizen deportable as a controlled substances offender, but with an opportunity seek relief from removal. Accordingly, the Court held that, if a noncitizen's conviction for marijuana distribution fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA.

 

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