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Immigration Removal for Marijuana Possession and the Moncrieffe Case

Generally, how does a criminal act translate into the removal or deportation of a non-citizen? Our immigration laws generally group removable offenses into crimes of moral turpitude (dishonesty) and aggravated felonies. This blog concerns aggravated felonies primarily. If a state offense is similar to a federal offense that is a felony (punishable by more than 1 year in prison), it is generally classified as an aggravated felony and may subject the non-citizen to removal from the Untied States. However, should the courts compare the elements of what is required to convict persons of state offenses with their federal counterparts or should the courts look into the facts of a case from the trial transcript (after a trial) or police reports (upon a plea of guilty) to determine whether the person's actual circumstances would have supported the conviction of an analogous federal felony statute? These are the issues that constantly plague our federal courts. Recently, the U.S. Supreme Court had an opportunity to make an important decision affecting the approach to the comparison of removable offenses in Moncrieffe v. Holder, 569 U.S. ___ (2013).

Moncrieffe was a Jamaican U.S. permanent resident, but still non-citizen. He pleaded guilty to possession of marijuana with intent to distribute under Georgia state law that made, even the 1.3 grams of marijuana, if shared, a crime. The federal government sought to deport him, arguing that the offense was punishable as a felony under the federal Controlled Substances Act ("CSA"). The Supreme Court determined that the offense was not analogous to the federal statute because it mattered not what actually occurred under the facts of the case. The operative analysis was the comparison of the elements of the offense. Since the Georgia statute did not require that Moncrieffe be paid for sharing the drugs or more than a small amount of those drugs, it was not analagous to the federal felony statute under the CSA. The Georgia offense was sufficiently generic to equate with either the federal misdemeanor (not a removable offense) or federal felony offense (which is removable). As such, Moncrieffe could not be removed for the conviction or commission of an aggravated felony.

The Supreme Court determined that to qualify as an aggravated felony for removal purposes, the state drug conviction must: 1) Necessarily proscribe conduct that is an offense under the federal CSA; and 2) the CSA must necessarily prescribe felony punishment (more than 1 year incarceration possible) for that conduct.

The Supreme Court in Moncrieffe further determined that a categorical approach to comparing state and federal convictions was the appropriate method, rather than the actual facts of a case, which would cause each immigration court to hold a new "mini-trial" to determine which facts existed to support a federal felony conviction.

A non-citizen can look forward to a complex, but more straightforward approach to determine whether a state conviction under the statute criminalizing such conduct necessarily requires facts sufficiently analagous to its federal felony counterpart to constitute an aggravated felony for removal purposes.