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After regularly updating crimmigration.com from January 2009 until November 2022, I have stopped doing so. I hope you continue to benefit from the blog as an archive. For up-to-date information about my work, visit ccgarciahernandez.com. – César

Moncrieffe: Supreme Court Does a Reality Check on the Immigration Detention & Deportation System

Sarah Rose Weinman | National Immigrant Justice Center

Adrian is a green-card holder who has lived lawfully in the United States since age three. In 2007, he was arrested in Georgia after police found 1.3 grams of marijuana in his car. He pleaded guilty to the Georgia state offense of “distribution of marijuana,” and, as a first-time offender, was sentenced only to probation. But federal immigration officials said that Adrian’s offense qualified as an “aggravated felony” under federal immigration law. As a result, he was mandatorily detained in immigration custody, placed in deportation proceedings, and ordered deported.

Ruben (a pseudonym) entered the United States in 1979, at the age of two, and has never known another home. He experimented with marijuana as a youth, and was arrested in his 20s in Illinois for a marijuana offense similar to Adrian’s. After that, Ruben turned his life around. He studied and worked in construction. He was a proud union member. He enjoyed close relationships with his immediate family, nearly all of whom are U.S. citizens. He became engaged to a U.S. citizen. And he had no further encounters with law enforcement. That is, until immigration officers inexplicably showed up at his home last year, misled his mother into thinking that Ruben was wanted for questioning regarding a car accident, and then took him into immigration detention. There, Ruben has remained for the past 15 months, at a cost to the government of about $164 per day, while the government sought to deport him on the allegation that his state marijuana conviction from nearly a decade ago is an “aggravated felony” under immigration law. Because he was charged as being an aggravated felon, Ruben was unable to seek a bond from immigration custody or mount any defense to his deportation proceedings, notwithstanding his long-standing ties to the United States and positive, law-abiding contributions to society over the past ten years. An immigration judge ordered him deported.

Adrian appealed his deportation order up to the Supreme Court, and on April 23, 2013, the Court ruled in his favor in Moncrieffe v. Holder, No. 11-702, slip op. (U.S. Apr. 23, 2013). In a 7-2 decision, the Court upheld a long-standing rule of legal analysis – the so-called “categorical approach” – for determining whether a given criminal offense can be considered an aggravated felony under immigration law. The Moncrieffe decision serves as a reminder of why the rule makes sense in in our detention and deportation system.

The Court explained in a nutshell what the “categorical approach” does: it requires an immigration judge adjudicating a non-citizen’s deportation proceedings to ask only what the person was “convicted of”, not “what he did.” See Moncrieffe v. Holder, slip op. at 15. The immigration judge is to look at the language of the law under which the person was convicted, and see if that language necessarily, or categorically, matches up to the federal aggravated felony ground that the government has charged.

In Adrian’s case, the government alleged that the Georgia marijuana distribution offense constituted a ground of deportation for aggravated felony illicit drug trafficking under federal law. But the Court pointed out that the Georgia offense – like many state marijuana statutes – punishes conduct that falls within a federal misdemeanor provision for social sharing of a small amount of marijuana. In other words, a person who shares a joint with a friend at a party, and a person who sells a kilogram of marijuana, both could be convicted under the same Georgia statute. The Court therefore observed that the Georgia statute doesn’t necessarily match up to the federal definition of aggravated felony drug trafficking; sometimes it matches up to the federal misdemeanor.

The government in Moncrieffe proposed a solution to this tangle with the categorical approach: an immigrant in deportation proceedings should have to have a “mini-trial” to re-litigate their criminal case before the immigration judge to prove that the conviction was only for a small amount of marijuana that was freely shared, and thus would qualify as a misdemeanor. But the Court pointed out several fatal flaws with the government’s proposed solution.

First, the Court rejected the proposed “mini-trial” solution because it would fly in the face of the categorical approach itself. It would require an immigration judge adjudicating a case like Adrian’s to look, in effect, behind the statute of conviction, at “what he did,” not what he was “convicted of.” The Court pointed out that this solution would defeat the whole purpose of the categorical approach, which is to ensure uniformity and fairness across similar cases. For example, under the government’s approach, immigration judges would have to:

entertain and weigh testimony from, for example, 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 immigration judge.

Moncrieffe, slip op. at 16.

Second, the Court took a pragmatic look at the realities of our immigration detention and deportation system, and found that the government’s proposed solution would be impractical and unfair. The Court observed that requiring mini-trials in deportation proceedings would further burden our already-overwhelmed immigration courts. Each immigration judge handles more than 1,200 cases every year, with the assistance of only one law clerk shared among four judges. See Moncrieffe, Brief for Nat’l Immig. Justice Center et al. as Amici Curiae at 19. The immigration court system as a whole completes more than 280,000 cases each year. Id. at 20. Many of these cases are years-old by the time they conclude due to backlogs in the system. Holding fact-intensive mini-trials would only further delay cases and unnecessarily tax the courts.

And the Court stated that such mini-trials would be patently unjust to immigrants, citing to an amicus brief filed by the National Immigrant Justice Center, Americans for Immigrant Justice, the Northwest Immigrant Rights Project, and the Florence Immigrant and Refugee Rights Project (collectively, “amici”), represented by Baker & McKenzie. Amici, all of which are organizations that provide direct legal services to detained immigrants in deportation proceedings, used their on-the-ground and day-do-day experiences to explain to the Court how the nature of our detention affects immigrants in proceedings. Virtually all immigrants who have been convicted of any drug offense, even simple possession of only a small amount of marijuana, are subject to mandatory detention. Once detained, it is next to impossible for immigrants to gather evidence to defend themselves in deportation proceedings. Detained immigrants have limited ability to place or receive telephone calls, and no access to fax, email, or internet. Postal services are rendered effectively nonexistent because detainees are transferred frequently between facilities with no mail forwarding. And in-person communications are similarly unavailable since most detention facilities are in remote locations. In some cases, criminal defendants in pre-trial detention might face similar obstacles. But there is an all-important distinction between a criminal defendant and an immigrant in civil deportation proceedings: the former is appointed a lawyer to represent him, and the latter is not. Indeed, more than half of immigrants in deportation proceedings, many of whom have little or no English proficiency or education, appear pro se, and only 10% of detained immigrants are able to secure counsel. As a result, the Court observed, “[a] noncitizen in removal proceedings is not at all similarly situated to a defendant in a federal criminal prosecution.” Moncrieffe, slip op. at 16. And so, individuals like Adrian “have little ability” to locate witnesses, records, or otherwise “to collect evidence” to defend against aggravated felony charges brought by the government for old, low-level offenses that in many cases would in fact be misdemeanors by federal standards. Id. Requiring them to re-litigate such offenses under these circumstances defies common sense and basic notions of justice.

The Court cautioned that escaping being charged with having an “aggravated felony” under immigration law does not mean escaping deportation proceedings. Indeed, Adrian and other immigrants with low-level drug convictions are subject to proceedings as controlled substance offenders. But they may be eligible to ask the immigration judge for certain types of relief from removal not available to individuals who have the type of significant drug sale and trafficking convictions that federal law punishes as aggravated felonies.

In sum, the Court called the government’s proposed mini-trial solution a “cure … worse than the disease” and an approach that “is simply wrong.” Moncrieffe, slip op. at 19. It would produce disparate results, create chaos in the courts, and unfairly force immigrants to re-try, without the benefit of counsel and while detained, cases for which they already went through criminal proceedings and served their sentence (often without having to spend so much as a day in jail), with permanent, irrevocable banishment from the United States and separation from U.S. citizen parents, spouses, and children, at stake.

So, what now? Adrian’s case will be remanded, and an immigration judge now could determine whether he is eligible for any relief from deportation that he was prevented from applying for while the government had lodged the improper “aggravated felony” charge against him. And Ruben, whose appeal of his deportation order NIJC is handling before the Seventh Circuit, now has a chance to contest the government’s aggravated felony charge against him and ask an immigration judge for a chance to stay in the United States, marry his fiancée, and continue making his proud contributions to the work force and to his community. For both, and for many others like them, this week’s common sense ruling from our highest court means a fighting shot for justice in the often-unjust world of immigration detention and deportation.


Sarah Rose Weinman is an Equal Justice Works Fellow and attorney working with NIJC’s Detention and Litigation Projects. Sarah’s project seeks to protect the rights of immigrants who are in deportation proceedings due to prior criminal convictions that were constitutionally defective and to assist criminal defense attorneys to safeguard the rights of their non-citizen clients during criminal proceedings, in compliance with the recent U.S. Supreme Court decision in Padilla v. Kentucky. Sarah joined NIJC after working at an indigent defense law office in New York City and clerking in the U.S. Federal District Court for the Northern District of Illinois. She attended law school at the University of California at Berkeley (Boalt Hall), and obtained her bachelor’s degree from Reed College. Between college and law school, she worked as NIJC’s Policy and Program Liaison. Sarah is licensed to practice law in New York. Her fellowship is generously sponsored by Baker & McKenzie LLP.

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