Thursday, May 2, 2013
Immigration in the Supreme Court in the 2012 Term: Individualized Decision-Making, No Immigration Exceptionalism
In the 2011 Term, the Supreme Court issued five immigration decisions. Three of the cases involved removals based on criminal convictions, which have been before the Court in increasing numbers in recent years. The recurrence of criminal removal cases should not be surprising given that the Obama administration has been removing noncitizens who have had brushes with the law in record numbers.
The immigration docket slowed a bit in the 2012 Term, with only two immigration decisions handed down by the High Court. However, the Court did decline to again enter the fray of state immigration enforcement laws. In 2012, the Court decided Arizona v. United States, the blockbuster ruling that curbed state laws purportedly seeking to enforce the U.S. immigration laws. This spring, the Court, with Justice Scalia in dissent, denied certiorari in Alabama v. United States, the Alabama immigration enforcement law case. The state of Alabama had sought cert after having lost in no small part in the Eleventh Circuit.
Adrian Moncrieffe immigrated to the United States from Jamaica at age 3 and grew up in the United States. He is the father of two U.S. citizen children. Moncrieffe was pulled over while driving in his home state of Georgia. Police found 1.3 grams of marijuana in his car, an amount the Supreme Court stated as enough for two to three marijuana cigarettes. Moncrieffe was charged with violating an expansive Georgia statute that criminalizes behavior ranging from the social sharing of a small amount of marijuana, to distribution of large quantities of marijuana for sale. Moncrieffe pled guilty and successfully completed probation. Two years later, immigration officials arrested and detained him, and initiated removal proceedings against Moncrieffe alleging that his conviction was an “aggravated felony” and a therefore a “felony” under the federal Controlled Substances Act. The immigration court ordered Moncrieffe removed from the United States. The Board of Immigration Appeals affirmed and the Fifth Circuit denied the petition for review.
In a 7-2 decision, the Supreme Court in Moncrieffe v. Holder resolved a split among the circuits concerning whether a conviction under a state statute that simultaneously criminalizes conduct characterized by both of the Controlled Substance Act (CSA)’s felony and misdemeanor provisions constitutes a felony conviction under the CSA, thus making the crime an “aggravated felony” for immigration purposes (and thus making the noncitizen ineligible for a variety of forms of relief from removal). The Court held that a conviction under state law criminalizing social sharing of a small amount of marijuana is not an “aggravated felony” because the Georgia statute encompassed intent to distribute without regard to amount and remuneration.
Moncrieffe v. Holder is the third time in seven years that the Court held that a relatively minor drug offense was not an “aggravated felony” for immigration purposes. The Court has been unwilling to impose what amounts to mandatory removal on long term lawful permanent residents of the United States based on relatively small time drug crimes. The decision in Moncrieffe v. Holder thus will aid small time drug offenders in future removal cases.
Roselva Chaidez entered the United States from Mexico in 1971 and became a lawful permanent resident in 1977. In connection with an automobile insurance fraud scam in which she received less than two thousand dollars, Chaidez on advice of her attorney pled guilty to two counts of mail fraud and was sentenced to probation and restitution. Her conviction became final in 2004. According to Chaidez, her attorney never warned her that her conviction could result in her mandatory removal from the country. In 2009, after Chaidez’s naturalization petition brought her and her conviction to the attention of the federal government, removal proceedings were instituted against her. Through a writ of coram nobis, Chaidez sought to set aside her conviction. While the petition was pending, the Court issued its decision in Padilla v. Kentucky (2010), which held that the Sixth Amendment requires defense attorneys in criminal cases to inform noncitizen clients of the deportation risks of guilty pleas. The Seventh Circuit held in Chaidez’s case that Padilla does not apply to a challenge to a conviction that became final before it was decided.
In Chaidez v. Holder, the Supreme Court agreed with the Seventh Circuit. Justice Kagan wrote for seven justices and ruled that Padilla v. Kentucky does not apply retroactively to cases already final on direct review. Justice Sotomayor, joined by Justice Ginsburg, dissented. The majority ruled that the change in the law was sufficiently significant that it should not apply retroactively.
There is little reason to think that Chaidez will have much of an impact on the Court’s retroactivity or immigration jurisprudence. The Court understood this to be a run-of-the mill application of basic retroactivity principles, with the junior Justice assigned the decision. Moreover, although tangentially involving immigration law, the decision does not meaningfully address any issues of immigration law or change in any way the holding in Padilla v. Kentucky.
At the same time, the Supreme Court’s holding that Padilla v. Kentucky will not apply retroactively will no doubt affect large numbers of plea deals in which the convictions were entered into before March 2010. The Obama administration has made it a priority to remove “criminal aliens” from the United States and has based many removal actions on convictions more than a few years old. Ultimately, thousands, if not, tens of thousands, of lawful permanent residents facing removal are likely to be affected by Chaidez and likely to suffer significant hardships if removed from the United States. Chaidez, for example, has lived in the United States for four decades and has three children and two grandchildren who are U.S. citizens. Now facing removal, she faces the possibility of being stripped from the only community and family she really has ever known.
For a detailed recap of the opinions in Chaidez, click here.
The Supreme Court’s immigration decisions in the 2012 Term (as well the last two Terms) are difficult to characterize except to say that the Court approaches each case on an individualized basis and applies conventionall rules of administrative agency deference, statutory construction, retroactivity analysis, and the like. The analysis is not ideologically-heavy handed and the outcomes can be difficult to predict. Immigrants seem to win more than they lose, a pattern that one might not necessarily predict in a Supreme Court led by a conservative Chief Justice.