Monday, September 24, 2012
In the 2011 Term, the Supreme Court decided three cases involving the removal from the United States of immigrants with criminal convictions. On October 10, 2012, the Court will hear oral arguments in another case falling into this category, Moncrieffe v. Holder.
Angel Arias, Pamela Karlan of the Stanford Law School Supreme Court Litigation Clinic, and Thomas C. Goldstein of Goldstein & Russell represent petitioner Adrian Moncrieffe. The Solicitor General's office, of course, is representing the U.S. government.
Since the late 1980s, Congress has regularly amended the immigration laws in ways that have facilitated the removal from the United States of increasing numbers of noncitizens convicted of criminal offenses. Among other things, Congress has greatly expanded the definition of an “aggravated felony,” the conviction of which can subject a lawful permanent resident to mandatory detention and removal (and makes him or her ineligible for various forms of relief from removal).
For its part, the executive branch has doggedly pursued “criminal aliens,” including many noncitizens guilty of relatively minor criminal offenses. The Obama administration has annually set removal records, with nearly 400,000 immigrants removed from the United States in fiscal year 2011.
In Carachuri-Rosendo v. Holder, the Supreme Court in 2010 rejected the U.S. government’s aggressive position in seeking to remove a noncitizen with a relatively minor drug conviction, a misdemeanor conviction under Texas law for possession of one tablet of an antianxiety medication. It was a second offense – the first was for a misdemeanor marijuana possession -- and recidivist drug possession is a felony under the Controlled Substances Act. The U.S. government treated the state misdemeanor conviction as a felony under the Act and sought to deport a lawful permanent resident from Mexico as an “aggravated felon.” The Fifth Circuit in an opinion by Chief Judge Edith Jones agreed. The Supreme Court, however, rejected the conclusion that the minor drug conviction constituted an “aggravated felony.” Following what is known as the categorical approach, the Court held that the conviction itself must include each of the findings necessary to render the conviction a felony under the Controlled Substances Act. In so holding, Justice Stevens wrote that
We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an “aggravated felony.” A “felony,” we have come to understand, is a “serious crime usually punishable by imprisonment for more than one year or by death.”
At age 3, Adrian Moncrieffe in 1984 legally entered the United States from Jamaica with his family. He grew up and started his own family, including two children who are U.S. citizens, in the United States. Moncreiffe’s brief states that “he has almost no remaining ties to Jamaica.”
In 2009, local police in Georgia pulled over Moncrieffe. Officers found 1.3 grams of marijuana in the car, roughly two-and-a-half marijuana cigarettes. (Although not an issue in the case, the facts of the police stop have the indicators of racial profiling.). The state charged Moncrieffe with possession of marijuana with intent to distribute under a broad Georgia statute that criminalizes the social sharing of small amounts of marijuana as well as the distribution of larger amounts. As a first time offender, Moncrieffe pleaded guilty and completed probation without incident.
Two years after the plea bargain, U.S immigration officials detained Moncrieffe and sought to remove him from the United States, claiming that the Georgia conviction was an “aggravated felony.” Under the immigration laws, “illicit trafficking in a controlled substance,” a “felony punishable under the Controlled Substances Act,” is an “aggravated felony.”
The Board of Immigration Appeals ordered Moncrieffe removed. The Fifth Circuit, in an opinion by Chief Judge Edith Jones, denied a petition for review. Following Fifth Circuit precedent, the court declined to follow the Second and Third Circuits that have held that convictions like Moncrieffe’s – in which there is no finding of drug quantity or remuneration – is not an “aggravated felony.”
What is perhaps most striking about the facts of Moncrieffe v. Holder is that a traffic stop and conviction for possessing less than two marijuana cigarettes put Moncrieffe’s entire life in the United States in jeopardy. What also is striking is that possession of such a small quantity of marijuana can lead to a conviction under a state law prohibiting the possession with intent to distribute.
The question before the Supreme Court is whether a conviction under a state law that includes but is not limited to possession of a small amount of marijuana without remuneration may constitute an aggravated felony, notwithstanding that the record of conviction does not definitively establish that the immigrant was convicted for conduct that would constitute a felony under federal law.
The Parties’ Arguments
Petitioner argues that, under the categorical approach, his conviction fails to establish that he was convicted of a felony under the Controlled Substances Act (CSA). His plea under the Georgia statute may correspond to either a misdemeanor or a felony under the Act. Consequently, he cannot be deemed to have been convicted of an “aggravated felony.”
The U.S. government contends that, because of the elements of the state offense correspond to the elements of a felony under the CSA, Moncrieffe’s conviction is “presumptively” an “aggravated felony.” It contends that the noncitizen has the ability to establish facts at the immigration court hearing to defeat the presumption that the crime would be a felony under federal law.
Four amici briefs were filed, all in support of the Petitioner, by the Center on the Administration of Criminal Law, Human Rights First, Immigration Law Professors, and the National Immigrant Justice Center et al. I was one of the amici law professors on the immigration law professors amici brief, which contends that the U.S. government’s approach (1) is contrary to a century of judicial precedent; and (2) would lead to the incredible result that minor marijuana possession convictions are “drug trafficking aggravated felonies” under the immigration laws.
The Supreme Court in Moncrieffe v. Holder will once again have the opportunity to interpret the complex immigration laws in a case involving the immigration consequences of a criminal conviction. The Court has decided important cases in this area in recent years, especially in the 2010 decision in Padilla v. Kentucky in which the Court held that a long-term lawful permanent resident could base an ineffective assistance of counsel claim on the failure of a criminal attorney to inform him of the immigration consequences of a criminal conviction.
A decision in Moncrieffe v. Holder will likely offer further guidance to the lower courts on the proper approach to defining the term “aggravated felony” for purposes of the removal provisions of the immigration laws. The Court can clarify the categorical approach, which is an important tool applied to the removal cases of thousands of lawful permanent residents facing removal based on criminal convictions.
The Court’s decision in Carachuri-Rosendo v. Holder offers hints that Moncrieffe may well prevail and that the U.S. government’s aggressive position will be rejected. Importantly, the Court has not reflexively ruled against the noncitizen convicted of a crime but in fact has decided a majority of the immigration criminal consequences cases in recent years in favor of the immigrant.
Last but not least, as is customary in immigration cases, the Court may again address the proper deference to the Board of Immigration Appeals in interpreting the Immigration & Nationality Act.