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 [...]
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 [...]
2 Cir: Sale of controlled substance is aggravated felony even if no sale occurred
The U.S. Court of Appeals for the Second Circuit held that a conviction for criminal sale of a controlled substance (narcotic) in New York, New York Penal § 220.39(1), constitutes drug trafficking, a type of aggravated felony. Pascual v. Holder, No. 12-2798, slip op. (2d Cir. Feb. 19, 2013) (Jacobs, Kearse, and Karney, J.) (per curiam). This case involves an LPR who was convicted in 2008. He sought but was denied cancellation of removal because the IJ concluded his conviction is an aggravated felony. On appeal to the Second Circuit, Pascual claimed that his conviction is not an aggravated [...]
Symposium: Moncrieffe: Whither Proportionality & the Constitution
By Mark Noferi, Instructor of Legal Writing, Brooklyn Law School First, thanks to César for the opportunity to speak as part of this Symposium, and for providing a platform to analyze these important issues in real-time. It’s one of the real benefits that “new media” vehicles like crimmigration.com provide in fostering academic analysis. (Another benefit is that I can post this from Coimbra, Portugal, while attending and speaking at the excellent First International Crimmigration Control Conference, organized by Juliet Stumpf, Robert Koulish, Maria Joao Guia, and others.) The Moncrieffe [...]
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, [...]
Symposium: Truth in Conviction: Moncrieffe v. Holder and the Categorical Approach in Immigration Law
By Alina Das, Assistant Professor of Clinical Law & Co-Director, Immigrant Rights Clinic, NYU Law School As a professor and a lawyer who writes about the “categorical approach” in immigration law, I worry about how this rule is perceived by federal courts today. The categorical approach, as it’s been applied over the last 100 years, is quite simple: where Congress has tied immigration penalties to what an individual has been “convicted of,” it’s the conviction that matters, not an immigration official’s re-litigation of what the person may or may not have done. It’s a simple [...]
Symposium: SCOTUS hears Moncrieffe v. Holder
A single Supreme Court decision can alter the legal landscape for decades, but immigration cases tend to fly below the radar. To help crImmigration.com readers stay up-to-date on what’s before the Court, today crImmigration.com launches its inaugural online symposium on Supreme Court crImmigration cases. A group of well-informed, passionate crImmigration experts have agreed to share their unique insight of Moncrieffe v. Holder, No. 11-702, scheduled for oral arguments tomorrow (October 10). In Moncrieffe, the Court is expected to decide whether possession with intent to [...]
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 [...]