US high court: mandatory deportation not triggered by 'social sharing' of marijuana

Last week the U.S. Supreme Court handed down a seminal decision in the forever-confusing - but extremely important - realm of immigration and controlled substance law. In Moncrieffe v. Holder, 11-702, the court, in an opinion written by Justice Sonia Sotomayor, held that a legal resident who plead guilty to a state offense which covered, at minimum, criminal conduct that included "social sharing of marijuana," should not face mandatory deportation because such conduct should not be considered an "aggravated felony" for purposes of immigration.

The court also reaffirmed its decision in Lopez v. Gonzales, 549 U.S. 47, 60 (2006), that when an immigration court or appellate court considers whether a particular state controlled substance offense constitutes a Controlled Substances Act (CSA) misdemeanor or felony, the actual crime to which the defendant plead should be considered - not the facts behind the plea. Where a noncitizen is convicted of a marijuana distribution offense that on its face fails to establish more than a small amount of marijuana for no remuneration, the offense cannot be considered an aggravated felony.

While any drug offense - other than a single possession of less than 30 grams of marijuana - is grounds for deportation, an aggravated felony conviction means that a person may not even ask for discretionary relief. Generally, the attorney general may grant discretionary relief from removal, such as asylum if the individual has a "well-founded fear of prosecution" in his or her home country, or cancellation of removal if the alien has been lawfully present in the U.S. for many years. However, the attorney general is precluded from granting discretionary relief to an aggravated felon.

Moncrieffe is a Jamaican citizen who has lived in the U.S. since he was three years old. He entered a state plea in Georgia to possession of marijuana with intent to distribute. (In its decision, the Supreme Court analogizes the Georgia law at issue to California Health and Safety Code Section 11360(b), which criminalizes as a misdemeanor furnishing under an ounce of marijuana.)

After the conviction, the federal government initiated deportation proceedings against Moncrieffe on the theory that he had committed what would be considered a felony under the CSA and therefore was removable as an aggravated felon. The government argued that because the Georgia crime that formed the basis of Moncrieffe's conviction (intent to distribute) is a CSA felony, he would not be entitled to discretionary relief because his crime constituted a controlled substance felony. An immigration judge ordered Moncrieffe removed, and the Board of Immigration Appeals and the 5th Circuit agreed with that decision.

But as the Supreme Court noted, 21 U.S.C. Section 841(b)(4) indicates that marijuana distribution is punishable as a misdemeanor if it involves a small amount of marijuana for no remuneration.

Affirming its 2010 decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, the Supreme Court in Moncrieffe said that when considering whether a drug conviction is a CSA felony or misdemeanor, a court must employ a "categorical approach" to examining the conviction. This means that if an alien pleads to an offense whose character as a CSA felony or misdemeanor is ambiguous, immigration courts should determine that the alien has been convicted of only a misdemeanor. In other words, the ambiguity should be construed in a way favorable to the alien.

In Carachuri, the Supreme Court ruled that where a defendant was convicted of possession of less than two ounces of marijuana and possession without a prescription of anti-anxiety medication, the court should deem that conviction a CSA misdemeanor, not an aggravated felony. The decision reversed the 5th Circuit, which upheld the Board of Immigration Appeals decision. The court said that because the state of Texas failed to charge the defendant as a recidivist, the immigration courts are prohibited, after the fact, from enhancing a state offense of record just because facts known to the court would have authorized a greater penalty.

This categorical approach used to determine whether a CSA felony has been committed is the opposite of the approach used when assessing whether an alien who is convicted of a state fraud offense would constitute an aggravated felony for purposes of immigration law. In Nijhawan v. Holder, 129 S. Ct. 2294 (2009), for example, the Supreme Court held that courts should look at the underlying facts to determine if the amount of a loss exceeded $10,000 - which renders a fraud offense an aggravated felony. The approach used by the Nijhawan court is considered a "circumstance-specific approach."

It is important to note that all drug convictions are deportable, and that the issue the U.S. Supreme Court is dealing with in Moncrieffe is simply whether the drug conviction constitutes an aggravated felony and therefore mandatory deportation. Unfortunately, aliens do not have the right to counsel - so the advice of appointed or private defense counsel with respect to alien clients is extremely critical.