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The intersection of criminal law and immigration law

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.

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