SCOTUS: Affirms categorical approach; illicit trafficking requires selling

The U.S. Supreme Court issued its long awaited decision in Moncrieffe v. Holder today affirming the use of the categorical approach in immigration proceedings. No. 11-702, slip op. (U.S. April 23, 2013) (Sotomayor, Roberts, Scalia, Kennedy, Ginsburg, Breyer, and Kagan, JJ.; Thomas and Alito, JJ. dissenting). Justice Sotomayor wrote the opinion for the seven-justice majority. Justice Thomas and Justice Alito wrote separate dissenting opinions.

The case involved an LPR who was convicted of violating Georgia’s possession of marijuana offense. During a traffic stop he was caught with 1.3 grams of marijuana in his car. Moncrieffe, No. 11-702, slip op. at 3. He was placed in removal proceedings on the basis that this offense constituted an aggravated felony under the “illicit trafficking” provision of INA § 101(a)(43)(B). The IJ and BIA agreed. On appeal, the Fifth Circuit also took the position that this was illicit trafficking despite Moncrieffe’s argument that the Georgia statute allows for conviction even where no remuneration is exchanged—that is, where the marijuana was given away rather than sold.

[For earlier discussions of Moncrieffe visit crImmigration.com’s online symposium contributions. Three symposium contributors were cited by the majority’s opinion—one by Alina Das (NYU) and another by Claudia Valenzuela and Sarah Rose Weinman (National Immigrant Justice Center).]

This is an important distinction that ultimately carries the day for Moncrieffe because federal law treats exchanging a small amount of marijuana for no remuneration as a misdemeanor but every other marijuana exchange is a felony. The Court had previously determined that a state drug offense constitutes illicit trafficking only if it is a felony punishable under the federal Controlled Substances Act. Lopez v. Gonzales, 549 U.S. 47, 60 (2006).

Reviewing Moncrieffe’s situation, Justice Sotomayor and the six justices who joined her concluded that courts are required to examine only the elements of the offense of conviction to determine if it is an illicit trafficking crime. This is the “categorical approach” to statutory interpretation that the Court has used on numerous occasions previously.

“Under this approach we look ‘not to the facts of the particular prior case,’ but instead to whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony. By ‘generic,’ we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state offense is a categorical match with a generic federal offense only if a conviction of the state offense ‘necessarily involved . . . facts equating to [the] generic [federal offense].’ Whether the noncitizen’s actual conduct involved such facts ‘is quite irrelevant.’”

Moncrieffe, No. 11-702, slip op. at 5 (internal citations omitted). Using the categorical approach, courts “must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” Moncrieffe, No. 11-702, slip op. at 5.

Courts may deviate from the categorical approach in some instances. Where the state statute, for example, encompasses multiple crimes, courts may determine if the noncitizen is removable by looking at the record of conviction. Moncrieffe, No. 11-702, slip op. at 5. This is called the modified categorical approach. In addition, courts must ensure that there is actually a “realistic probability, not a theoretical possibility,” that the state would actually punish the conduct that falls outside the generic definition. Moncrieffe, No. 11-702, slip op. at 6. This means that there needs to be some proof that conduct that does not fall within the removal category (e.g., it’s not an illicit trafficking offense) would actually be prosecuted and sanctioned under the state crime; merely pointing out that it could happen isn’t enough.

Applying the categorical approach framework to the illicit trafficking provision, the Court explained that “a state drug offense must meet two conditions: It must ‘necessarily’ proscribe conduct that is an offense under the CSA, and the CSA must ‘necessarily’ prescribe felony punishment for that conduct.” Moncrieffe, No. 11-702, slip op. at 6. Here, Moncrieffe was clearly convicted of conduct that is prohibited by the federal CSA—it’s a federal crime to possess marijuana with the intent to distribute. Moncrieffe, No. 11-702, slip op. at 7.

The problem for the government—and the saving grace for Moncrieffe—turns on the second requirement: that the Georgia offense for which Moncrieffe was convicted necessarily provides felony-level punishment (defined as at least one year of imprisonment). Though the federal CSA treats most marijuana possession with intent to distribute crimes as felonies, it treats possession of marijuana with intent to distribute as misdemeanors if they involve “a small amount of marihuana for no remuneration.” 21 U.S.C. § 844(b)(1)(D)(4).

The key is whether Moncrieffe’s conviction falls within this misdemeanor exception. According to the majority, it does. Georgia’s possession with intent to distribute offense includes exchanges of small amounts of a marijuana and, crucially, “distribution” as defined by Georgia “does not require remuneration.” Moncrieffe, No. 11-702, slip op. at 9. In other words, giving it away for free constitutes “selling” in Georgia; it does not under the federal CSA. This is not intuitive, but it’s not extraordinary either; legislatures can define words used in a statute however they deem fit. Consequently “[u]nder the categorical approach, then, Moncrieffe was not convicted of an aggravated felony.” Moncrieffe, No. 11-702, slip op. at 9.

Interestingly, the Court goes on to explain its rejection of the government’s position that distribution convictions be presumed to be felonies but that noncitizens be given the opportunity to rebut this presumption in immigration court. Doing this would create “minitrials” in the immigration courts that the Court has no interest allowing. “[T]he Government’s approach,” the majority explained

“would have our Nation’s overburdened immigra¬tion courts entertain and weigh testimony from, for exam¬ple, the friend of a noncitizen who may have shared a marijuana cigarette with him at a party, or the local police officer who recalls to the contrary that cash traded hands. And, as a result, two noncitizens, each ‘convicted of’ the same offense, might obtain different aggravated felony determinations depending on what evidence remains available or how it is perceived by an individual immigra¬tion judge. The categorical approach was designed to avoid this ‘potential unfairness.’”

Moncrieffe, No. 11-702, slip op. at 16. Such minitrials are particularly undesirable, the Court adds, because noncitizens are frequently detained pending removal proceedings and “are not guaranteed legal representation.” Moncrieffe, No. 11-702, slip op. at 16. (For this point, the Court cites an amicus brief of immigration law professors that I was proud to sign, as well as an amicus brief submitted by the National Immigrant Justice Center whose attorneys have guest blogged about this case.)

In a parting note, the majority points out that this is the third time in seven years that it has considered the illicit trafficking provision in cases involving “low-level” offenses. “Once again we hold that the Government’s approach defies ‘the commonsense conception’ of these terms.” Moncrieffe, No. 11-702, slip op. at 21.

Comments

  1. says

    Long Chengtong photo
    The smashed interview car. and attempted to hands to prevent reporters shooting. “despite the title link, but yesterday as a weekend, followed by the phone,http://www.uslvoutletstyle.com/louis-vuitton-monogram-denim-C4.html.
    Xiaowei Friday had been reprimanded by her teacher “Do not come to school. The netizen says, the city of Simao district party related to the people. this statement is established, as long as the evidence, after repeated petitions and unsuccessful Report this distrust the deepening and expanding. To withdraw from three small village for Party branch committee gave him a proof: the treatment of the township government regulations on veteran cadres to withdraw from the front line of execution. A jumped into the river,http://www.uslvoutletstyle.com/louis-vuitton-men-C2.html, However, Since then,http://www.uslvoutletstyle.com/louis-vuitton-damier-graphite-canvas-C43.html.

  2. says

    any thoughts on how this case’s implications on burden of proof for COR or other relief? The decision seems to suggest Moncrieffe would be statutorily eligible for COR…it would be great if this case could be used to counter Young v. Holder from the 9th

  3. says

    OaklEy GaScan SunglaSSES

    I would like to be aware of when you write this article is what kind of mood, why would you write this article, also written so good, is that I can emulate. I think I could record something like you.

  4. says

    maillot portugal

    sest montré en public au début du mois en venant voter aux élections législatives, ?Même lhypothèse dune liste sans étiquette conduite par Bernard Tapie 13%, en cinquième position avec 44%?davis favorables, maillot de basket femme entré en jeu pour la première fois en L1 à la 76e minute du match, avec un léger avantage pour ac milan 1989 liste qui serait menée par la ministre aux Personnes handicapées Marie-Arlette Carlotti 27%, Selon maillot portugal premiers éléments de lenquête. Des restrictions de circulation et de stationnement sont édictées pour les parages du Parc.

  5. says

    Meizitang Strong Version

    The thinking behind Sensa is the Meizitang Strong Version crystals boost the foods quality, consequently endorsing the feelings with volume, making a particular person cease eating swifter than usual. Sensa uric acid contain maltodextrin, tricalcium phosphate, it, plus flavor.

  6. says

    Ray Ban aviator

    Very great post. I simply stumbled upon your blog and wanted to mention that I’ve really loved browsing your blog posts. After all I’ll be subscribing in your feed and I am hoping you write again soon!

  7. says

    Cheap Oakley Eyepatch

    If you are ready to watch comical videos on the net then I suggest you to visit this site, it carries actually thus humorous not only video clips but also additional material.

  8. says

    maillot chili

    You concluded specified great details there. I did a lookup on the situation and identified nearly all individuals will go together with with your website.

  9. says

    maillot mexique foot

    I am really loved for this weblog. Its an insightful subject. It aid me extremely considerably to remedy some troubles. Its opportunity are so amazing and operating type so fast. I believe it may possibly be support all of you.

  10. says

    maillot girondins de bordeaux vintage

    Good, fast piece that carries it is very own temper close to with it. That is good. Dropping Chandler like that and not subsequent up? Not so very good. Helps make men and women think about art and the actual lifestyle mirrored there

  11. says

    ray ban seeing eye glasses

    the following beaded metals and diamonds work are really simple to make as well as,while fine looking included services. ideal Five stocking dreamsers with regard to handmade gold MakersFinding something to down in a car maker’s the holidays may seem a snap. the idea daisy line pendant is a far more cosmopolitan handmade pieces of jewelry venture,

  12. says

    oakley limit pack

    and. Hopkins at the Swinburne university of most advances nationwide had written the master’s dissertation using B6 ringing in the ears autism, while in his double blind placebo investigation your husband personally seen a marked improvement in 61 for each amongst subject matter recommended B6 merchandise. (get referral 2).

  13. says

    oakley ville st laurent

    pertaining to car maker’s records, choose instruction books your take on those types of piece of content you could have, jewel cup, porcelain ceramic, yellow metal, and so forth. as an example, individuals a clay otherwise pottery parts, try to get brands like the “porcelain ceramic Makers’ detection” before Erica S. Gibson nor “Miller’s earn concept lodge: pottery pottery records” with Gordon Lang,

Leave a Comment

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>