Monday, October 8, 2012

Issues of Fundamental Fairness at Stake in Moncrieffe v. Holder By Jordan Wells

Moncrieffe v. Holder is cast as a statutory interpretation case, with the petitioner arguing that immigration adjudicators should stick to the well-established “categorical approach,” and the government defending a new mode of interpretation that sets up mini-trials to go beyond the fact of conviction and explore a noncitizen’s particular conduct. The mode of inquiry approved by the Court will determine when a noncitizen’s conviction is to be classified as a “drug trafficking aggravated felony”—a label leading to severe immigration consequences, including mandatory deportation. Lurking in the background of the parties’ discussion of statutory construction are issues of fundamental fairness.

Notice and effective assistance of counsel are key in this case. The categorical approach offers predictive value by creating uniformity in immigration adjudications. It thus effectuates the Court’s recognition in Padilla v. Kentucky of the Sixth Amendment right to be informed of a conviction’s immigration consequences. An informed agreement that serves the interests of both defendant and prosecutor is reached during the criminal proceeding, when the defendant has the aid of counsel—not during the immigration proceeding, when (potentially many years on) the person may be detained and without access to counsel or to newly relevant evidence. By contrast, the government’s proposed approach undermines Padilla by turning immigration consequences into a guessing game: There is no way to know whether a later immigration adjudication may breathe new significance into aspects of the criminal record that were inconsequential—and thus uncontested—at the time of the criminal proceeding. It seems likely, moreover, that evidence introduced during the criminal proceeding to contest such inconsequential allegations will be excluded as irrelevant. Even were states to allow the introduction of such evidence going forward, that would provide little solace to longtime residents with past convictions, if the government’s proposed approach is applied retroactively.*

Proportionality is also key. The government’s approach equates minor state offenses that typically carry sentences of probation or small fines with a serious federal felony that carries up to 5 years in prison and a $250,000 fine. This mismatch strips the Attorney General of his discretion to cancel the deportation of longtime permanent residents, regardless of their equities. The Court recognized in Carachuri-Rosendo and Leocal that “aggravated felony” is commonly understood to denote a very serious crime. The statutes that will be affected by the outcome of this case are among the lowest level state drug offenses. Many, including the Georgia statute under which Moncrieffe was convicted, criminalize the mere social sharing of marijuana. These low-level convictions are routinely sustained irrespective of whether money changed hands. See, e.g., People v. Starling, 650 N.E.2d 387 (1995). From 2005 to 2011, in New York alone there were over 20,000 convictions under the relevant statute. About 75 percent resulted in sentences involving no jail time, while the other 25 percent typically resulted in very brief jail sentences. States like New York thus seeks to dispense penalties that are proportional to the gravity of the offense. Mandatory deportation is drastic consequence that upends this balance. The significance of this point is driven home by two cases described in an amicus brief to which my classmate Pierce Suen and I contributed. In the first, an LPR originally admitted as a refugee pled guilty in 2004 to conspiracy to commit misdemeanor “sale, gift, distribution, or possession with intent to sell, give, or distribute” less than one-half ounce of marijuana. A Virginia court handed down a twelve-month suspended sentence and placed him on probation. Six years later, DHS charged him as a “drug trafficking aggravated felon,” and he was removed to Vietnam. Contrast that with the following case: An LPR admitted in 1971 at the age of three was convicted twice in 1986 under the New York statute referenced alongside the statistics above. Twenty-five years later, DHS sought his deportation. Indeed, he was deportable. The question—the same one presented for review on Wednesday—was whether the Immigration Judge should apply the categorical approach (and thereby retain the discretion to cancel his deportation). The IJ did so, and finding that the man’s convictions “[did] not outweigh the many positive factors in his case, such as his extremely long residence, strong family ties, and the serious hardship he will face if deported to Haiti,” held that he “deserve[d] a second chance to remain in the U.S.”

At oral argument on Wednesday, the Court will be most interested in the parties’ views of statutory interpretation. In addition, however, the Justices will likely have in mind the rationales of fundamental fairness that have long underlain the categorical approach.

Jordan Wells


*   Later in the term, in Chaidez v. United States, the Court will decide whether Padilla’s holding applies retroactively. Assuming it does, however, most noncitizens in Moncrieffe’s position still would not be able to obtain post-conviction relief to correct stray, nonessential aspects of the record.

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