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When is a State Drug Trafficking Conviction Not an Aggravated Felony under Immigration and Nationality Act?

Spring 2014 Newsletter

By Carlos Montoya, Immigration Attorney

This article examines the changing landscape of the immigration consequences of trafficking criminal convictions of small amounts of marijuana after the Supreme Court’s decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). An aggravated felony conviction is the death knell to most immigrants’ ability to remain in the United States. Under the Immigration and Nationality Act (“Act”), an aggravated felony encompasses criminal offenses ranging from rape and murder to theft offenses with a term of imprisonment of at least one year. See 8 U.S.C. § 1101(a)(43). A conviction for any illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act, “CSA”), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code) squarely puts immigrants in peril of removal and limits their options to remain in the United States. See Id. § 1101(a)(43)(B). That is because a trafficking conviction classified as an aggravated felony not only bars practically all forms of discretionary waivers and relief from removal, but also places an immigrant into mandatory civil detention until their case is complete. As such, it has been the practice of the criminal bar to limit exposure to convictions for aliens who may fall within the grasps of an aggravated felon designation. However, questions remained on how certain state offenses that include both the generic aspects of a federal trafficking misdemeanor and felony definitions would be treated under INA’s definition of an aggravated felony.

The United States Supreme Court in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), shed light on the bounds of what constitutes an “illicit trafficking in a controlled substance” under section 101(a)(43)(B). Adrian Moncrieffe was a Jamaican citizen who entered the United States as a lawful permanent resident when he was three years old. Id at 1683. During a traffic stop in Georgia, police found 1.3 grams of marijuana in Moncrieffe’s car. Id. Subsequently, Moncrieffe pleaded guilty to possession of marijuana with intent to distribute under Georgia code § 16-13-30(j). Id. Moncrieffe’s judgment and sentence were withheld and he was required to complete five years of Georgia’s equivalent to deferred adjudication probation. See Id. Despite the sentence, a conviction under the INA includes withheld sentences where the judge ordered some form of punishment, penalty, or restraint on the alien’s liberty. See 8 U.S.C. § 1101(a)(48)(A). Although not explicitly stated in the decision, the probation conditions sufficiently restrained Moncrieffe’s liberty to amount to a conviction for immigration purposes. Moncrieffe was subsequently placed in removal proceedings. The immigration judge ordered Moncrieffe removed from the United States as an aggravated felon (drug trafficking) and he was not afforded the opportunity to apply for a waiver or to cancel his removal. The Board of Immigration Appeals affirmed the decision from the Immigration Judge. The Fifth Circuit Court of Appeals reviewed the Board decision and subsequently relied on the reasoning that the offence was an aggravated felony because Georgia’s statute penalized possession of marijuana with intent to distribute “equivalent to a federal felony.” Moncrieffe v. Holder 662 F.3d 387, 392 (5th Cir 2011). The Fifth Circuit Court reasoned that “the default sentencing range for a marijuana distribution offense is the CSA’s felony provision, § 841(b)(1)(D), rather than the misdemeanor provision.” Id. (citing United States v. Walker, 302 F.3d 322, 324 (5th Cir.2002)).

The CSA states that it is an offense to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). A marijuana offense of less than 50 kilograms is considered a federal felony as it is punishable by up to 5 years imprisonment. 21 U.S.C. § 841(b)(1)(D) However, “distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of title 18” (a federal misdemeanor). See 21 U.S.C. § 841(b)(4). The Georgia statute in dispute included both felony and misdemeanor conduct when examined under the rubric of the generic federal statute. The Supreme Court had previously held that a state drug offense constitutes illicit trafficking only if it falls within the Federal felony scheme and is punishable under the CSA. Lopez v. Gonzales, 549 U.S. 47, 60 (2006). The Georgia statute included transfers without remuneration as a drug distribution offense and therefore the offense could fall within either a federal misdemeanor or felony scheme. Moncrieffe at 1686-1687. The Court in Moncrieffe, using a categorical approach, concluded that the Georgia stated drug offense was not an aggravated felony as an “illicit trafficking of controlled substance” because the conduct needed to sustain such a conviction would not be classified as a felony under the federal scheme. Moncrieffe at 1687. The categorical approach “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 at 1684 (citations omitted). In applying the categorical approach, the Court reasoned 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.” Id. at 1685. Because the state conviction Moncrieffe was sentenced under did not necessarily prescribe a felony punishment under the federal scheme, Moncrieffe’s conviction was not an illicit trafficking offense that is categorized as an aggravated felony. To emphasize the overreach of the DHS, the Court stated that “Once again we hold that the Government’s approach defies ‘the commonsense conception’ of these terms.” Id. at 1693 (citations ommited).

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