Moncrieffe v. Holder (11-702)

• [Question(s) presented]
• [Issue(s)]
• [Facts]
• [Discussion]
• [Analysis]

Issue(s)

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.

top

Facts

Petitioner Adrian Moncrieffe legally entered the United States from Jamaica in 1984; he was 3 years old at the time. He went to school, held various jobs, married, and fathered two children, all in the United States. All the members of Moncrieffe’s immediate family are U.S. citizens, and he has almost no remaining ties to Jamaica.

In 2009, Moncrieffe was stopped by local police in Georgia. The car Moncrieffe was driving contained 1.3 grams of marijuana, the equivalent of two-and-a-half marijuana cigarettes, or “joints.” 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. 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. Moncrieffe pleaded guilty to “possession of marijuana with intent to distribute” and was sentenced to five years of probation.

In 2011, the Department of Homeland Security (“DHS”) detained Moncrieffe with the intent to deport him. 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. 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. A non-citizen has committed an aggravated felony if their crime corresponds with a Controlled Substance Act (“CSA”) felony. 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.

Moncrieffe appealed to the Board of Immigration Appeals (“Board”), arguing that the Georgia statute punishes acts that are considered misdemeanors under federal law. Specifically, Moncrieffe argues that his conviction under the Georgia statute only established that he possessed marijuana and that he intended to distribute it. 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. 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.

Moncrieffe then filed a Petition for Review with the United States Court of Appeals for the Fifth Circuit. The United States Courts of Appeals use a “categorical approach” to decide if a state conviction counts as a felony under the CSA. 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. The Courts of Appeals are in conflict with respect to broad state convictions. 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. 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. 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. 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.

top

Discussion

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. 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.

On behalf of Petitioner, the National Non-citizen Justice Center (“NIJC”) argues that this approach would be unfair to detainees. Detainees would be required to litigate complex factual issues, many of which are related to events that occurred many years in the past. 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. As a result, detainees are often unable to procure the evidence and case records required to prove their offense qualifies as a misdemeanor. Detainees are also not afforded counsel by the government; they must procure representation themselves. 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.

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. 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. 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. 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.

Uniformity

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. 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. Similarly, the Center argues that inconsistent treatment would occur if the non-citizen is charged under federal, as opposed to state, law. 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. The difference in outcome for the non-citizen would then be determined solely by where the charge is brought.

II. BURDEN ON IMMIGRATION COURTS

The NIJC argues that the government approach would create a burden on an already strained immigration court system. 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. 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. Non-citizens lacking both representation and an understanding of the legal concepts at issue are likely without resources for factual investigations. 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.

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. 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. 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.

top

Analysis

A court uses the categorical approach to determine whether the state conviction necessarily corresponds to a federal felony. In Carachuri-Rosendo, the Supreme Court held that when applying the categorical approach, the court must not consider evidence outside the conviction record. Moncrieffe argues that a state conviction necessarily corresponds to a felony only if the state conviction includes findings that preclude correspondence with a misdemeanor. 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”). The government further argues that the defendants may mitigate consequences by proving that their conduct does not conform to a felony.

Moncrieffe argues that he was not convicted of an aggravated felony. 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. 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. Therefore, the conviction only establishes that he possessed some amount of marijuana and that he intended to distribute it. Moncrieffe further explains that under the Immigration and Nationality Act (“INA”) there are three immigration consequences. There are no deportation consequences for a first-time offender who is convicted of simple possession of thirty grams of marijuana or less. 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. 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. 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. Under the CSA, any individual caught with fifty kilograms of marijuana, or less, shall be sentenced to up to five years in prison. Further, any crime punishable by imprisonment in excess of one year is a federal felony. 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. Therefore, the government states that the state conviction is presumptively a felony for deportation purposes.

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. 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. Moncrieffe argues that the government’s approach has the negative effect of creating collateral litigation and further burdening the immigration courts.

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). 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. 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. 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).

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. According to the government, the elements of the applicable offense are specified under section 841(a), possession of marijuana with intent to distribute. To convict under this federal statute, the amount of marijuana and whether remuneration was received are not relevant. 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.

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. 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. 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. 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.

CONGRESSIONAL INTENT

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. 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. 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. 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.

Moncrieffe argues that a “commonsense” reading of the relevant statutory terms should be used to clarify Congressional intent. Moncrieffe elaborates by stating that “trafficking” ordinarily means distributing large amounts for remuneration. 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. 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. 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. 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.

top

Conclusion

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.

top