What’s at Stake in Moncrieffe

What’s at Stake in Moncrieffe


Any day now, the Supreme Court is expected to issue an opinion in Moncrieffe v. Holder, an immigration case with important ramifications for noncitizens convicted of certain marijuana-related offenses. The case is one of three argued in early October that the Justices have yet to decide. With the Court scheduled to release opinions on Tuesday and Wednesday—and a better than average possibility that Moncrieffe will be among them—we thought we would review what’s at stake in the case.

The issue in Moncrieffe involves the fate of noncitizens who are convicted of crimes that—depending on the circumstances surrounding the offense—may or may not qualify as an “aggravated felony.” In Moncrieffe’s case, the crime in question was possession of marijuana with intent to distribute. While such offenses are generally considered to be aggravated felonies under the immigration laws, an exception exists for defendants who possessed a small amount of marijuana that they intended to distribute for no remuneration (i.e. compensation).

For his part, Moncrieffe was arrested with 1.3 grams of marijuana—enough for between two or three joints—none of which he intended to sell. Unlike federal law, however, the Georgia statute under which Moncrieffe pled guilty contained no exception for those intending to share rather than sell marijuana. So after the Department of Homeland Security placed Moncrieffe in removal proceedings, his criminal record alone did not reveal whether his conviction should be considered an aggravated felony for immigration purposes. Although the government bears the burden of proof in removal proceedings, an Immigration Judge—relying on a 2008 decision from the Board of Immigration Appeals—found that the ambiguous record of conviction was enough to make Moncrieffe’s conviction equivalent to felony drug trafficking under federal law.

Some may ask: if Moncrieffe did not intend to sell the marijuana, why didn’t he simply produce evidence demonstrating as much? The reason is that in determining whether a conviction constitutes an aggravated felony, immigration courts look at the elements of the crime, not the underlying facts of the case. Though it may seem artificial, this so-called “categorical approach” is what prevents removal proceedings from turning into mini-trials over offenses occurring years or decades before.

Moreover, noncitizens with alleged aggravated felony convictions are subject to mandatory detention during the course of removal proceedings, making it difficult if not impossible to gather evidence or interview witnesses regarding their underlying convictions. Indeed, during oral arguments in October, numerous Justices—and especially Justice Sonia Sotomayor—appeared hostile to the idea that convictions for possession of marijuana with intent to distribute should be considered aggravated felonies unless noncitizens could affirmatively prove to the contrary.

Even if the Supreme Court rules for Moncrieffe, noncitizens in his position will not necessarily escape deportation. Even if not considered an aggravated felony, Moncrieffe’s conviction would still render him deportable as a generic controlled substance offense. The key distinction is that noncitizens convicted of aggravated felonies are ineligible for most forms of relief, including cancellation of removal. Thus, if Moncrieffe wins at the Supreme Court, he would merely receive an opportunity to seek cancellation from an Immigration Judge, who at that point could take the circumstances of the offense into account.

As with all Supreme Court cases, it is impossible to predict what the Justices will decide or when they will issue their decision. But based on the other cases from early October that have yet to be decided, court watchers have predicted that Justice Sotomayor is authoring the majority opinion. If true, it would certainly be a welcome sign, given her aggressive grilling of the government during the oral argument and her overall track record on immigration cases.

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