Moncrieffe v. Holder (11-702)
In 2009, Adrian Moncrieffe, a Jamaican permanent resident of the United States, was arrested while in possession of 1.3 grams of marijuana. Moncrieffe pleaded guilty in a Georgia court to possession of marijuana with intent to distribute under Ga. Code § 16-13-30(j)(1) and was sentenced to five years of probation. In 2010, the Department of Homeland Security successfully brought removal proceedings against Moncrieffe arguing that his conviction in state court corresponds with an aggravated felony, which made him removable under the Immigration and Nationality Act. Moncrieffe appealed to the Board of Immigration Appeals, which upheld the lower court’s decision. After the United States Court of Appeals for the Fifth Circuit denied review, Moncrieffe filed a petition for a writ of certiorari with the United States Supreme Court.
Moncrieffe argues that his conviction does not correspond with an aggravated felony because the conduct leading to his conviction instead corresponds with a federal misdemeanor. Holder argues that a state conviction for possession of marijuana with the intent to distribute constitutes an aggravated felony. This decision could impact how immigration deportation cases are decided and place stricter limits on the Attorney General’s discretion to seek removal. This decision could also impact how criminal cases are conducted (e.g. whether to go to trial, to plead guilty, to admit evidence) and how courts construct state law in accordance with federal law, specifically in immigration matters.
Whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal felony.
Whether, when applying the categorical approach to determine whether a non-citizen should be removed, a conviction under a provision of state law that encompasses both felony and misdemeanor conduct, which lacks the specifics of the underlying conduct, should be treated as a aggravated felony rendering the non-citizen eligible for automatic removal.
Petitioner Adrian Moncrieffe legally entered the United States from Jamaica in 1984; he was 3 years old at the time. See Brief for Petitioner, Adrian Moncrieffe at 4. He went to school, held various jobs, married, and fathered two children, all in the United States. See id. All the members of Moncrieffe’s immediate family are U.S. citizens, and he has almost no remaining ties to Jamaica. See id. at 4-5.
In 2009, Moncrieffe was stopped by local police in Georgia. Brief for Petitioner at 5. The car Moncrieffe was driving contained 1.3 grams of marijuana, the equivalent of two-and-a-half marijuana cigarettes, or “joints.” See id. (citing U.S. Sentencing Guidelines Manual § 2D1.1 cmt. 11 (2011) (stating that the typical weight of a single marijuana cigarette is 0.5 grams)). The State charged Moncrieffe with possession of marijuana with intent to distribute under Ga. Code § 16-13-30(j)(1), which criminalizes a broad range of conduct and is silent about the amount of marijuana the individual possessed or whether the individual received remuneration. See id. at 5. Under the Georgia statute, Georgia courts may withhold a conviction or a prison sentence as long as the defendant successfully completes a term of probation, after which the charges may be expunged from the defendant’s record. See id. Moncrieffe pleaded guilty to “possession of marijuana with intent to distribute” and was sentenced to five years of probation. See id. at 5-6.
In 2011, the Department of Homeland Security (“DHS”) detained Moncrieffe with the intent to deport him. See Brief for Petitioner at 6. The DHS argued that Moncrieffe’s conviction was a “drug trafficking crime” and that the conviction made Moncrieffe removable under the Immigration and Nationality Act (“INA”), which authorizes the government to deport non-citizens engaged in criminal activities. See id. Under the INA, a non-citizen convicted of an aggravated felony is automatically removable without any opportunity to have the Attorney General “cancel” the removal. See id. A non-citizen has committed an aggravated felony if their crime corresponds with a Controlled Substance Act (“CSA”) felony. See id. The Immigration Judge held in favor of the DHS, finding the state conviction for possession of marijuana with intent to distribute equivalent to a felony under the CSA. See id.
Moncrieffe appealed to the Board of Immigration Appeals (“Board”), arguing that the Georgia statute punishes acts that are considered misdemeanors under federal law. Brief for Petitioner at 9. Specifically, Moncrieffe argues that his conviction under the Georgia statute only established that he possessed marijuana and that he intended to distribute it. See id. at 9. However, Moncrieffe’s conviction record did not show the amount of marijuana under his possession at the time or whether he received any remuneration because these facts were not necessary to secure his plea agreement. See id. at 19. The Board agreed with the Immigration Judge and rejected Moncrieffe’s appeal, holding that, under its own precedent, a state conviction for an indeterminate amount of marijuana with intent to distribute is considered a felony under the CSA. See id. at 6.
Moncrieffe then filed a Petition for Review with the United States Court of Appeals for the Fifth Circuit. See Moncrieffe v. Holder, 662 F.3d 387 (5th Cir. 2011). The United States Courts of Appeals use a “categorical approach” to decide if a state conviction counts as a felony under the CSA. See id. at 391. The court looks to see if the state statute is comparable to a felony under federal law and does not take into account the specific facts of the crime. See id. The Courts of Appeals are in conflict with respect to broad state convictions. See id. The Second and Third Circuits hold that broad state convictions involving no proof of remuneration or a specific amount of marijuana are misdemeanors for removal purposes because the court should begin the categorical approach with the presumption that the non-citizen’s conduct was the minimum necessary to comport with the state drug conviction. See id. On the other hand, the First, Fifth, and Sixth circuits hold that broad state convictions whose elements correspond to a federal felony are presumptively aggravated felonies for removal purposes. See id. However, concrete evidence of no remuneration and no more than a small amount of marijuana can serve as mitigating factors that, if proven by the defendant, can result in cancellation of their removal. See id. Here, the Fifth Circuit denied Moncrieffe’s Petition for Review, holding that Moncrieffe had failed to bear the burden of proof regarding the amount of marijuana in his possession and that he did not receive remuneration. As a result, Moncrieffe’s conviction amounted to a federal felony. See id. at 392-93.
This decision has the potential to affect the way immigration courts decide whether a non-citizen is removable under a broad range of marijuana-related offenses. Both sides argue that this decision will affect the fairness, predictability, and uniformity of immigration adjudications. Furthermore, the decision may place a burden on the already strained immigration courts. Lastly, the decision may affect national immigration policy and how the United States meets its international treaty obligations.
I. THE FAIR, PREDICTABLE, AND UNIFORM APPLICATION OF IMMIGRATION LAWS
Fairness and predictability
Holder argues that the Board of Immigration Appeals ("Board") has provided the opportunity for aliens to defeat the “aggravated felony” charge by proving at a hearing that their prior conviction involved possession of a small amount of marijuana and no remuneration for distribution. See Brief for Respondent at 35. This, argues Holder, mitigates unfair consequences for aliens who have been convicted under broad state statutes that criminalize behavior ranging from possession of a small amount of marijuana for no remuneration to possession with intent to commercially distribute larger amounts of marijuana. See id.
On behalf of Petitioner, the National Non-citizen Justice Center (“NIJC”) argues that this approach would be unfair to detainees. See generally Brief of Amici Curiae of National Non-citizen Justice Center, et al (“Brief for NIJC”). Detainees would be required to litigate complex factual issues, many of which are related to events that occurred many years in the past. See id. at 22. Furthermore, detainees are subject to detention, with the Board only authorizing release when the detainee can prove the government is “substantially unlikely to prevail” on the removal charge. See id. at 6. As a result, detainees are often unable to procure the evidence and case records required to prove their offense qualifies as a misdemeanor. See id. at 14-15. Detainees are also not afforded counsel by the government; they must procure representation themselves. See id. at 7-8. Finally, other practical difficulties include the transport of detainees to holding facilities far removed from the locations of the offenses, and limited access to communication channels, such as telephone calls, facsimile and email, and communication by post. See id. at 8-14.
Furthermore, a host of immigration law professors (“Professors”) argue, on behalf of Petitioner, that this fact-finding approach into the individual conviction removes the element of predictability and threatens non-citizens with severe and unanticipated consequences. See Brief for Immigration Law Professors as Amici Curiae in Support of Petitioner(“Professor’s Brief”) at 13-15. The Professors argue that when immigration consequences are attached to the conviction instead of the underlying conduct, defense attorneys are able to advise the non-citizen of the consequences of accepting a plea bargain. See id. at 13-14. Because many plea bargains treat the amount of marijuana as nonessential to the plea agreement, the Professors argue that the government’s approach in this case is unfair and discriminatory. See id. at 14. As the Center on the Administration of Criminal Law (“Center”) argues, in most states the prosecution of low-level marijuana-related offenses provides the defendant with neither a reason nor a chance to establish the amount of marijuana or remuneration as facts in the record. See Brief for the Center on the Administration of Criminal Law, New York University School of Law, as Amicus Curiae Supporting Petitioner(“Center’s Brief”) at 8-10.
The Professors argue that a fact-finding inquiry hurts uniform application of the law because it brings additional and nonessential information to bear on the case. See Professor’s Brief at 16. Whether such facts are found in the conviction record, whether the non-citizen is able to procure such facts, and the varied contexts in which convictions are secured (pleas or trials) lead to similar cases receiving different treatment. See id. Similarly, the Center argues that inconsistent treatment would occur if the non-citizen is charged under federal, as opposed to state, law. See Center’s Brief at 16-17. Under federal law, the government is required to prove quantity and remuneration, but that is not the case under some state laws, such as Georgia’s. See id. at 17. The difference in outcome for the non-citizen would then be determined solely by where the charge is brought. See id. at 17.
II. BURDEN ON IMMIGRATION COURTS
The NIJC argues that the government approach would create a burden on an already strained immigration court system. Brief for NIJC at 19-21. Because immigration judges handle on average more than 1,200 cases a year, they must adjudicate removal proceedings quickly, often taking less than two hours to review each case file. See id. at 20. Further, the NIJC argues that the government approach requires a fact-intensive trial, which would require more time and undermine the fairness of the proceedings. See id. at 22. Non-citizens lacking both representation and an understanding of the legal concepts at issue are likely without resources for factual investigations. See id. A lack of representation and an inability to investigate evidence would be fundamentally unfair to non-citizens if the government’s fact-intensive approach is adopted. See id. at 23.
III. NATIONAL IMMIGRATION POLICY AND INTERNTIONAL TREATY OBLIGATIONS
Humans Rights First (“HRF”) argues that a ruling in Holder’s favor would allow states to set national immigration policy based on how broad their statutes are worded. See Brief for Human Rights First as Amici Curiae in Support of Petitioner (“Brief for HRF”). Because the Constitution forbids a State to enter into a treaty of its own with a foreign power, U.S. Const. art. I, § 10, a State should also not dictate whether the Nation meets its international treaty obligations. See Brief for HRF at 25. HRF argues that Holder’s proposal effectively allows states to dictate whether the Nation will abide by the non-refoulement provision of the United Nations Protocol Relating to the Status of Refugees, which bars the return of victims/refugees to states where they were persecuted. See id. at 27.
A court uses the categorical approach to determine whether the state conviction necessarily corresponds to a federal felony. See Brief for Petitioner at 15-16. In Carachuri-Rosendo, the Supreme Court held that when applying the categorical approach, the court must not consider evidence outside the conviction record. See id. at 16-17. Moncrieffe argues that a state conviction necessarily corresponds to a felony only if the state conviction includes findings that preclude correspondence with a misdemeanor. See id. at 21. On the other hand, the government argues that a state conviction necessarily corresponds to a felony if the elements of the conviction match the elements of a felony under the Controlled Substances Act (“CSA”). See Brief for Respondent at 12-13. The government further argues that the defendants may mitigate consequences by proving that their conduct does not conform to a felony. See id.
Moncrieffe argues that he was not convicted of an aggravated felony. See generally Brief for Petitioner. He states that his conviction corresponds to both a misdemeanor and a felony under the CSA because the conviction is silent with regard to the amount of marijuana he possessed and whether he received remuneration. See id. at 18-19. Moncrieffe explains that the Georgia Statute for “possession of marijuana with the intent to distribute,” covers all possession crimes for amounts under ten pounds and any intent to distribute regardless of whether there is any intent to receive remuneration. See id.Therefore, the conviction only establishes that he possessed some amount of marijuana and that he intended to distribute it. See id. Moncrieffe further explains that under the Immigration and Nationality Act (“INA”) there are three immigration consequences. See id. There are no deportation consequences for a first-time offender who is convicted of simple possession of thirty grams of marijuana or less. See id. A non-citizen convicted of a crime, which does not correspond to a misdemeanor under the CSA is eligible for deportation but has the right to seek cancellation of their deportation from the Attorney General. See id. Lastly, a non-citizen whose conviction corresponds to a felony under the CSA is found to have committed an aggravated felony and is eligible for mandatory deportation. See id. The question here is whether a state conviction, which encompasses both felony and misdemeanor conduct, corresponds to either a CSA felony or a CSA misdemeanor for deportation purposes.
APPLYING THE CATEGORICAL APPROACH TO BROAD STATE CONVICTIONS
The government argues that the categorical approach focuses only on the elements of the state statute and how they correspond with elements of a CSA offense, not on the facts of a particular crime or the sentencing factors. See Brief for Respondent at 14-15. Under the CSA, any individual caught with fifty kilograms of marijuana, or less, shall be sentenced to up to five years in prison. 21 U.S.C. § 841(b)(1)(D). Further, any crime punishable by imprisonment in excess of one year is a federal felony. 18 U.S.C. §3559(a)(5). The government argues that possession of marijuana with the intent to distribute is punishable by imprisonment in excess of one year and thus corresponds with a felony. See Brief for Respondent at16-17. Therefore, the government states that the state conviction is presumptively a felony for deportation purposes. See id.
Moncrieffe argues that in Carachuri-Rosendo, the Supreme Court held that, when applying the categorical approach, the conviction record includes both the elements of the conviction and the sentencing factors. See Brief for Petitioner at 31-34. Moncrieffe explains that the government’s approach, which says that the conviction record is only made up of the conviction elements, turns the state conviction into a “place-holder” conviction and actually requires non-citizens to conduct further fact-finding when trying to mitigate the immigration consequences of the state conviction. See id. Moncrieffe argues that the government’s approach has the negative effect of creating collateral litigation and further burdening the immigration courts. See id.
Moncrieffe agrees with the government’s explanation of a CSA felony; however, he explains that the CSA also has a provision that accounts for misdemeanors, section 841(b)(4). See Brief for Petitioner at 21. So, if the state conviction encompasses conduct that corresponds with either a misdemeanor or a felony, the government must prove that the conviction does not correspond with the misdemeanor provision and thus necessarily corresponds with a felony. See id. at 16-17. Moncrieffe then argues that when a conviction record encompasses an array of conduct, the judge should assume that the conviction is rested on the least of these acts. See id. at 19-20. Moncrieffe argues that here, the least of the acts is a misdemeanor because possession of a small amount of marijuana with intent to distribute for no remuneration is a misdemeanor according to section 841(b)(4). See id.
The government argues that the CSA misdemeanor provision does not alter the application of the categorical approach but instead serves as a mitigating factor if the non-citizen can prove that their offense corresponds to a misdemeanor. See Brief for Respondent at 18-19. According to the government, the elements of the applicable offense are specified under section 841(a), possession of marijuana with intent to distribute. See id. at 20-23. To convict under this federal statute, the amount of marijuana and whether remuneration was received are not relevant. See id. The government then argues that section 841(b)(4) is an affirmative defense that puts the burden of proof on the defendant to prove he committed a misdemeanor and not a felony. See id.
Further, the government distinguishes this case from Carachuri-Rosendo in three ways, and argues that because of these distinctions, the holding from Carachuri-Rosendo regarding whether the sentencing factors are included in the conviction record does not apply here. See Brief for Respondent at 40-43. First, Moncrieffe’s offense is punishable as a felony under the CSA because the prosecutor took the necessary steps to trigger the maximum penalty of five years imprisonment by establishing possession with intent to distribute; whereas in Carachuri-Rosendo, the offense was punishable as a misdemeanor because the prosecutor did not take the necessary steps. See id. Second, while Carachuri-Rosendo dealt with elevating simple possession to a felony under the CSA, the conviction here, possession with intent to distribute, is already regarded as a felony under the CSA. See id. Finally, the statute in Carachuri-Rosendo established a one year maximum penalty with the possibility of increase if recidivism was involved; here, Congress has enacted a maximum five year penalty as the standard, with a mitigating exception. See id.
The government argues that applying the misdemeanor provision to the categorical approach would contradict Congressional intent and create a broad statute that would authorize the government to deport drug dealers for public safety concerns. See Brief for Respondentat 23-24. The government argues that Moncrieffe’s approach limits government authority because, by requiring the state convictions to be identical to the federal felony, the conviction is otherwise assumed a misdemeanor and the non-citizen is not deportable. See id. The government points out that the vast majority of states do not require a specific quantity or proof of remuneration to convict a defendant of possession with intent to distribute; therefore, the vast majority of state convictions will not result in deportation as Congress intended. See id. The government supports their claim by stating that only approximately nine states have possession with intent to distribute statutes that require proof of remuneration and a specific quantity of marijuana. See id. at 27-28.
Moncrieffe argues that a “commonsense” reading of the relevant statutory terms should be used to clarify Congressional intent. See Brief for Petitioner at 22. Moncrieffe elaborates by stating that “trafficking” ordinarily means distributing large amounts for remuneration. See id. Therefore, Moncrieffe argues, Congress did not intend for a conviction for possession of a small amount of marijuana without proof of remuneration, to be deemed a “trafficking” offense resulting in mandatory deportation. See id. Further, Moncrieffe explains that even the Georgia legislature did not intend for his conviction to be deemed “trafficking” by pointing to the fact that Georgia has a separate trafficking offense. See id. Moncrieffe also argues that the term “aggravated felony” applies to a grave offense, and because he was only sentenced to five years probation without imprisonment, Congress would not have intended his offense to constitute an aggravated felony. See id. at 22-23. Finally, Moncrieffe argues that the “commonsense” reading of the statutes will not affect deportation of non-citizens who have engaged in substantial marijuana transactions because, even if the court assumes that the non-citizen was convicted for the least conduct under the conviction, they are still eligible for deportation and the Attorney General will have discretionary power to pursue the deportation. See id. at 23.
The Supreme Court’s ruling in this case will reconcile the split among the circuit courts concerning how to apply the categorical approach when determining whether a conviction under a state statute that encompasses a wide range of conduct can be construed as an aggravated felony for the purposes of removing a non-citizen. If the Court adopts Moncrieffe’s position, an immigration judge will analyze the state statute to determine the minimum conduct worthy of conviction under the statute and presume that the non-citizen engaged in this conduct; if the conduct constitutes a federal misdemeanor the non-citizen will have the opportunity for cancellation of removal. However, if the Court sides with Holder, an immigration judge will simply consider whether the language of the state statute exactly corresponds with a conviction punishable as a federal felony; if so, the non-citizen will be removable without the opportunity for cancellation.
- Wex: Immigration
- U.S. Department of Justice: Board of Immigration Appeals
- United Nations: Convention and Protocol Relating to the Status of Refugees