So, you are noncitizen green card holder in the country and you were caught with some marijuana? Should you be subject to mandatory deportation because this offense may be an aggravated felony? Justice Sotomayor, writing for the majority in Moncrieffe v. Holder, indicated that that should not be the outcome if the offender’s conviction for distribution of marijuana was not for remuneration or that the quantity was not “more than a small amount of marijuana.” In other words, if this small amount of marijuana was for “social sharing,” it does not constitute aggravated felony that makes the noncitizen deportable.
What Happened Here
Adrian Moncrieffe, a Jamaican citizen and a green card holder, was arrested for marijuana possession during a routine traffic stop. He had about 1.3 grams of marijuana in his car. As the court puts it, this amount is enough to make about 2 or 3 marijuana cigarettes. Moncrieffe was charged with violating a Georgia statute that made it a crime to possess marijuana with intent to distribute. Having pleaded guilty to this charge, he was able to take advantage of another statute that benefits first offenders such that a judgment of conviction or a prison sentence would be withheld, and the record of this crime totally expunged, after five years of probation. Unfortunately for Moncrieffe, what seemed like a get out of jail card from the Georgia court, however, meant something else to immigration officials.
Federal officials decided that his conviction in the Georgia case was an aggravated felony under the Controlled Substances Act (CSA), where possession of marijuana with intent to distribute is punishable by up to five years in prison. This meant that Moncrieffe, as a noncitizen, could be deported immediately, according to the federal government. An Immigration Judge and the Board of Immigration Appeals (BIA) both agreed with the federal government and ordered Moncrieffe removed from the country. Not giving up, Moncrieffe took his case to the Appeals Court. Unfortunately, the Appeals Court sided with the government reasoning that what Moncrieffe had done was not a misdemeanor that is created as a result of an exception in the CSA. Rather, the default provision in the CSA for federal criminal prosecution was a felony. Therefore, Moncrieffe was out of luck because Georgia punished possession with intent to distribute, which according to the Appeals Court, was equivalent to a federal felony. The Supreme Court, according to Justice Sotomayor, said, not so fast.
The Supreme Court’s Position
Justice Sotomayor basically wrote that the government was giving a totally different interpretation to the CSA. According to the Justice, when a state conviction qualifies as an aggravated felony under immigration laws, the court resorts to what is called a “categorical approach” to determine whether the offense under state law is comparable to the offense under the nation’s immigration laws. What this means is that, the conviction of the state offense should have facts that are a match for the “generic” federal offense. It does not matter what the real or actual facts that gave rise to the underlying conduct are. Most important, for the court’s purposes, what is relevant is the charging document or jury instructions, or where there is a conviction, the plea agreement itself or some judicial record that shows the facts on which the plea is based. According to Justice Sotomayor, this is important because the immigration laws ask for “what the noncitizen was convicted of,” and not exactly what acts he did.
So, going back to the CSA, it is a federal felony to possess a controlled substance with intent to distribute. As a categorical offense, this means that both state and federal offenses are in congruence with each other. However, it is also important to look at the nature of the punishment that is meted out under the CSA when such an offense is committed. The punishment for possession of less than 50kg of marijuana is a prison term of not more than 5 years. However, there is an exception if the offender distributed a small amount of marijuana without remuneration. Under such a scenario, the offender was to be regarded a mere “simple drug possessor.” This essentially makes the offense a misdemeanor, and not an aggravated felony for which the noncitizen could be deported. In Moncrieffe’s case, because Georgia would equally convict for possession with intent to distribute, whether it involved remuneration or only a small amount of marijuana, it could be that Moncrieffe’s conviction could have been a CSA felony, or a CSA misdemeanor. Because of this ambiguity, Justice Sotomayor essentially said we could not be sure of what “necessary” CSA facts, punishable as a felony or not, led to Moncrieffe’s conviction. Thus, Moncrieffe, under this categorical approach to interpretation of the CSA, did not have an aggravated felony conviction.
What Does This All Mean?
The result of this case means that offenders that have in their possession a small amount of marijuana, especially for social or recreational use, may not have the harsh consequence of facing immediate deportation when such amounts are found on their person. In this sense, a distinction is being made between real drug traffickers and simple drug possessors who may not be dealing drugs as a trade or practice.
The outcome of this case also means that as a noncitizen, you may have to choose your state of residency carefully. States vary in how they classify various acts of drug possession with intent to distribute. The severity of the punishment that is administered to offenders may also differ from state to state. While this conduct may be a misdemeanor in one state, the same offense may be a felony in another. In addition, what may be a felony in a state may be a misdemeanor when it comes to federal immigration laws, as it was here in this Moncrieffe case. In the unfortunate circumstance where a state has defined felonious conduct to be consistent with immigration laws, noncitizens put themselves in a deportable situation if convicted of such felony.
Though this decision was favorable to Moncrieffe, the outcome of the case does not suggest that a noncitizen convicted of a felony could not be deported from the country. It does not give noncitizens carte blanche to go smoke as much marijuana as they want or be caught with marijuana in their possession. Even if a noncitizen is not convicted of aggravated felony, a felony conviction as a result of marijuana distribution could make the noncitizen deportable because the noncitizen could be viewed as an offender of a controlled substance. In this instance, it may be up to the Attorney General, in his discretion, to deport the noncitizen from the country as a consequence of this felony conviction.
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