Symposium: A categorical tilt toward underinclusive interpretation of INA may leave room for an immigration judge to exercise discretion

By Cathy J. Potter, The Law Offices of Cathy J. Potter, PLLC

As a practicing immigration attorney, potential interpretations of
IIRAIRA that would further disadvantage aliens are always a matter of grave
concern.  Moncrieffe was convicted
in Georgia of possession of marijuana with intent to distribute, under a state
statute that does not differentiate between behavior that would be a drug
trafficking offense under federal law, a felony, as well as behavior that would
be the simple sharing of a small amount of marijuana, a misdemeanor under
federal law. 

The Georgia statute, like many state statutes, is not limited to any
minimum amount of marijuana, nor does it require proof that a defendant
received remuneration in exchange for the drugs.  The record of conviction in the case of Moncrieffe did not
show that he had possessed more than a small amount of marijuana nor did it
evidence any remuneration.  Were
Moncrieffe a United States citizen such facts would not be material. 

Moncrieffe, however, is a long term lawful permanent resident.  Therefore, the government charged him
with a drug trafficking offense under the INA—an aggravated felony that not
only made him removable but also denied him any form of relief, arguing that
Moncrieffe had the burden of establishing that his actions did not constitute
an aggravated felony based on a state record that did not require such
evidence.  The government’s
position, one ratified by the Board of Immigration Appeals (BIA) and the FifthCircuit, would severely disadvantage aliens: a lawful permanent resident who
shared a marijuana cigarette with a friend would be subject to the same harsh
treatment as a dealer, selling marijuana in bulk to multiple clients: removal
without relief.

Oral argument on October 10th [transcript available here] provided ground for some optimism with
regard to the outcome of this case. 
Questioning of the petitioner’s attorney was lively and focused first on
seeking to grasp how often the Moncrieffe
situation might occur.  Justice
Sotomayor asked how “regularly” the Georgia statute might involve prosecutions
that would in fact be federal misdemeanor.  Statistical evidence was not available.  Justice Ginsburg sought to determine
whether there was proof in the record of conviction that the amount of marijuana
in question in the Moncrieffe case was very small and that no remuneration
changed hands. 

Ultimately, however, perhaps the most important point made during
questioning of petitioner’s counsel was articulated by Justice Kagan: the
government’s approach was overinclusive. 
It would result in the removal without relief of people not guilty of
drug trafficking.  Petitioner’s
approach, however, was underinclusive. 
It potentially meant that some aliens guilty of drug trafficking as
defined by federal statute might escape removal.  As Justice Kagan noted, however, the government was
attempting “to cure” their problem by “adding” to the statute—a comment perhaps
directed as much at other justices as at the petitioner.

During questioning of Government’s counsel, Justice Sotomayor
emphasized that even under the petitioner’s rule, all convictions under the
Georgia statute, or similar state statutes, would still make an alien
removable—the issue was one of eligibility for relief.  Justice Sotomayor followed up on this point
by noting that relief is discretionary: an immigration judge in her discretion
can consider the amount of drugs and the issue of remuneration, even if not
contained in the record of conviction. 
In short, the application of the categorical approach is not a free pass
for those who might in fact be drug traffickers, as defined by the federal
statute, but where the record of conviction is not conclusive.  In exercising discretion, an
immigration judge is not bound by the record of conviction.

Chief Justice Roberts noted several instances where it appeared the
government’s position was changing, or even contradictory.  He further developed the point that an
immigration judge in her discretion could and would consider things such as the
amount of drug involved in an exchange and whether money changed hands.  Justices Kagan and Kennedy at different
times noted the harsh results of the government’s position for those like
Moncrieffe who were guilty only of sharing a small amount of marijuana, with no
remuneration involved.  At one
point, Justice Kagan stated, “the problem with your [the government’s] main
argument is that it leads you to a result that you don’t want to accept….”

One hates to predict—there is always room for surprises, be they
pleasant or unpleasant—but there appeared to be a coalescing consensus at the
Court, that in Moncrieffe and similar
cases, the discretionary determinations of immigration judges may be the best
way to resolve problems of underinclusiveness in the application of the categorical
approach.  We certainly hope that
is the way the Court goes in Moncrieffe.