Non-Citizens and Deportation for Convicted Crimes

Moncrieffe v. Holder, 11-702 (2013) is an interesting Supreme Court decision.

The Immigration and Nationality Act (“INA”), 8 USC 1101, provides that a non-citizen who has been convicted of an aggravated felony may be deported from the US.  As way of background, ordinarily, a non-citizen when facing deportation, may ask for discretionary forms of relief and cancellation of the removal.  The exception is for aggravated felonies.

This case comes because among the crimes that are classified as aggravated felonies are illicit drug trafficking offenses.  The issue the Supreme Court addressed is whether this category includes state criminal statutes that extends to the social sharing of a small amount of marijuana.

In a 7-2 vote, the Supreme Court rejected the government’s position. The court explained that if a state crime of marijuana distribution does not closely match the federal crime of distribution, in a direct comparison of what each covers, it is not an “aggravated felony.”

In this case, the non-citizen came to the US legally in 1984.  In a traffic stop, the police found 1.3 grams of marijuana.  The non-citizen pled guilty to the charge of possession with the intent to distribute.  Under Georgia statute, this violation may be punishable up to 5 years.  Given this, the government alleged this was an aggravated felony.

The Supreme Court rejected this argument because it held the generically defined federal crime is “any federal punishable under the Controlled Substances Act.” 18 USC 924(c)(2).  “[N]ot just any offense ‘under the CSA’.”

The Supreme Court further explained,

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as ‘illicit trafficking in a controlled substance,’ and thus an ‘aggravated felony.’  Once again we hold that the Government’s approach defies ‘the commonsense conception’ of these terms….

Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, ‘does not fit easily into the ‘every day understanding’ of ‘trafficking,” which ordinarily… means some sort of commercial dealing.’…

Nor is it sensible that a state statute that criminalizes conducted that the CSA treats as a misdemeanor should be designated an ‘aggravated felony.’  We hold that it may not be.

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Filed under Appellate, civil rights, courts, immigration, legal decision, Supreme Court

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