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Moncrieffe v. Holder: Marijuana Distribution Crimes No Longer Lead To Automatic Deportation For Noncitizens

April 23, 2013 Criminal Law and Procedure

The U.S. Supreme Court in Moncrieffe v. Holder today ruled that a marijuana distribution crime is no longer an offense that will lead to automatic deportation for noncitizens. Before today’s ruling such crimes were considered “aggravated felonies,” a class of offenses that foreclose the opportunity for noncitizens to obtain discretionary relief from deportation.

For a marijuana distribution crime to be an aggravated felony now it must be established that the defendant either distributed the marijuana for payment or possessed more than a small amount.

“Sharing a small amount of marijuana for no renumeration, let alone possession with intent to do so, does not fit easily into everyday understanding of trafficking, which ordinarily means some sort of commercial dealing,” wrote Justice Sonia Sotomayor.

The practical impact of the Court decision may be limited, however. The noncitizen offender may escape aggravated felony status, but may still be deported as a controlled substances offender. Nevertheless, where the offense is not an aggravated felony, the noncitizen may apply for discretionary relief to stay in the country, which means that he or she may remain in the country where there are compelling reasons for doing so.

Although the practical impact of the Court’s decision may be limited, it goes a long way as a matter of fairness in the immigration system, as it gives noncitizens who are only convicted of a minor offense a chance to remain in the country.

Related: The U.S. Supreme Court in Chaidez v. United States Rules That Padilla Applies Prospectively Only

Moncrieffe is a Jamaican citizen who has been in the United States legally since he was three. In a traffic stop the police found 1.3 grams of marijuana in his car, which the Court explains is the equivalent of two or three marijuana cigarettes. He plead guilty to possession of marijuana with intent to distribute. Under a Georgia statute for first-time offenders, the trial court deferred an entry of conviction and instead imposed a five year period of probation, after which Moncrieffe’s record would be expunged. Under Georgia law, a defendant may be convicted of this offense if marijuana is distributed without payment.

The Federal Government initiated removal proceedings, claiming that Moncrieffe’s crime constituted an aggravated felony.

The issue for the Court then was whether the definition of aggravated felony includes a state criminal statute that extends to the social sharing of a small amount of marijuana.

Related: Padilla v. Kentucky: New Rules For Attorneys Representing Noncitizen Criminal Defendants

The Immigration and Nationality Act provides that a noncitizen convicted of an aggravated felony may be deported from the country. In addition, an aggravated felony conviction will prevent a noncitizen from being granted discretionary relief from removal.

Aggravated felonies include crimes involving illicit drug trafficking, which is defined as any crime that would be a felony under the Controlled Substances Act (CSA). The immigration court will look at the language of the state statute to determine whether it is an aggravated felony, and not the individual facts of a defendant’s case. The court presumes that a conviction rests upon the minimum acts required for the offense, although there must be more than a theoretical possibility that the State actually convicts on the basis of those minimum acts.

For a state offense to be an aggravated felony the offense must first necessarily proscribe conduct that is an offense under the CSA, and second, the CSA must necessarily prescribe felony punishment for that conduct.

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The corresponding federal offense to the Georgia statute Moncrieffe was convicted of is a five year felony but contains an exception that allows judges to treat the offense as a misdemeanor if the distribution involved only small amounts of marijuana for no payment. A conviction under the Georgia statute could correspond to a conviction under either the felony or misdemeanor section of the federal law, and so the conviction did not necessarily involve a felony punishment. Therefore Moncrieffe’s conviction did not constitute an aggravated felony.

 
Contact ArborYpsi Law at 734-883-9584 or at bernstein@arborypsilaw.com to speak with attorney Sam Bernstein

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