Symposium: Rejecting the Fifth Circuit’s approach would promote fairness, efficiency, and uniformity

By Sarah Rose Weinman, Equal
Justice Works Fellow, and Claudia Valenzuela, Associate Director of Litigation,
National Immigrant Justice Center, Chicago

 

This Wednesday, October 10, the
U.S. Supreme Court will hear oral arguments in Moncrieffe v. Holder, an immigration case arising out of the Fifth Circuit Court of Appeals. Moncrieffe presents
yet another challenge by an immigrant to the charge that his conviction
constitutes an “aggravated felony” in the immigration context—a determination
that generally results in permanent banishment from the United States.

 

In Moncrieffe, a lawful permanent resident was convicted of a state
offense that criminalized selling or transferring marijuana, and received a
sentence of probation. Under federal law, a drug trafficking offense is
considered an aggravated felony, yet a misdemeanor exception exists for
transferring a small amount of marijuana for no remuneration. 21 U.S.C. §841(b)(4).

 

The state statute under which
Moncrieffe was convicted criminalizes both conduct that would constitute an
aggravated felony (sale of marijuana) and
conduct that would not (transferring a small amount of marijuana for no
remuneration), and the record of conviction did not show that Moncrieffe’s
conduct would bring it within the ambit of misdemeanor exception.

 

The Fifth Circuit held that where
a state statute covers both aggravated felony and marijuana misdemeanor conduct
and where the record of conviction is unclear as to what type of conduct was
involved, the offense presumptively should be considered an aggravated felony. In
so holding, the court of appeals effectively set aside the longstanding
categorical/modified categorical approach to determining if an offense is an
aggravated felony. Typically, if the record of conviction does not definitively
show that the conduct involved constitutes an aggravated felony, then the
government cannot meets its burden of proving that a lawfully admitted
immigrant is removable as an aggravated felon.

 

Yet, the rule adopted by the Fifth
Circuit (and by the Board of Immigration Appeals) does away with this approach:
where the record of conviction does not clearly prove an aggravated felony, the
Fifth Circuit’s rule would require that an immigrant disprove his own removability by essentially re-litigating his
criminal case in removal proceedings and gathering evidence (possibly from a
decades-old offense) to show that his state marijuana conviction is not an aggravated felony.

 

As amici, the National Immigrant Justice Center (NIJC) and fellow organizations that provide direct legal
services to detained immigrants support the Petitioner’s position urging the
Court to reject the Fifth Circuit’s rule and to uphold the traditional categorical/modified
categorical approach. The amicus brief sheds light on the practical difficulties
that the Fifth Circuit’s position would raise.

 

Immigrants face extraordinary
barriers in litigating their own removal proceedings. There is no right to
appointed counsel for indigent individuals in immigration proceedings, so a
majority of immigrants (many of whom do not speak English and have limited
education) appear pro se. Defending
against removal can be procedurally and substantively complicated even for
experienced attorneys. Further, if an immigrant faces removal for even a minor
drug-related offense, he is subject to mandatory detention. There is no
possibility for bond, even if the individual is not a flight risk or a danger
to the community, and even if he may have a defense to his deportation.

 

Being detained makes it difficult
for immigrants to defend against their removal, particularly if they are pro se. Immigrants in detention often
are held in remote facilities, are transferred between facilities frequently
and without notice, and have irregular access to phones; this detention context
makes it difficult if not impossible to contact family, friends, courts, former
public defenders, or anyone else who might help them gather documents or other
evidence they would need to mount a defense to deportation.

 

In addition to the serious
fairness concerns that would arise by requiring a legal permanent resident or
other lawfully admitted immigrant to disprove his own removability, any such
rule would cause massive delays and
inefficiencies in an already backlogged immigration court system. The system
prioritizes rapid adjudication of cases, particularly for detained noncitizens,
and immigration judges face pressure to resolve their overcrowded dockets
quickly but fairly.

 

Yet, the practical difficulties
that would arise by requiring detained, pro
se immigrants to collect old records showing that an offense involved only
a small amount of marijuana and that they did not receive any money in
transferring it would require judges to make an untenable choice: either
grant a series of continuances to permit immigrants time to gather evidence in
their defense, thus adding to docket backlogs, or deny requests for continuances
and risk permanently exiling someone who may well not be removable under the
law but simply can’t prove it in time.

 

Amici’s goal in
presenting a picture to the Court of the procedural hurdles facing detained
immigrants in removal proceedings was to show why the strict application of the
categorical rule is warranted by the need to make removal proceedings fair, uniform,
and efficient.

Claudia, Sarah, and other NIJC staff regularly discuss NIJC’s immigrants’ rights litigation at the NIJC Federal Litigation blog and about the human impact of immigration detention the These Lives Matter blog.