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Tough Pot Law Doesn't Support Deportation

By talltom, Apr 24, 2013 | Updated: Apr 25, 2013 | |
  1. talltom
    A Jamaican caught with a small amount of marijuana cannot be deported for an aggravated felony, the U.S. Supreme Court ruled Tuesday, April 23, 2013. Adrian Moncrieffe was about 26 when Georgia police found him with just over a gram of marijuana, enough for a couple of joints, in a 2007 traffic stop.

    Though the state gave Moncrieffe a break for pleading guilty - offering to expunge the charge altogether after a five-year probation term - an immigration judge ruled that Moncrieffe was removable as an aggravated felon. The Jamaican citizen had been in the United States since he was 3.

    Federal law classifies a small amount of marijuana for no remuneration as a misdemeanor, but the government said Moncrieffe's plea in Georgia, to possession with intent to distribute, was analogous to a federal felony.

    The Board of Immigration Appeals and the 5th Circuit shut Moncrieffe down, but he saw a glimmer of hope when the Supreme Court took up his case last year.

    The justices ruled, 7-2, on Tuesday that Moncrieffe's conviction does not amount to a drug-trafficking offense that meets the aggravated felony classification for removability under the Immigration and Nationality Act (INA).

    "Moncrieffe's conviction could correspond to either the CSA felony or the CSA misdemeanor," Justice Sonia Sotomayor wrote for the majority, abbreviating the Controlled Substances Act. "Ambiguity on this point means that the conviction did not 'necessarily' involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony."

    Arguing for a different result, the government claimed that any marijuana distribution conviction is "presumptively" a felony.

    "But that is simply incorrect, and the government's argument collapses as a result," Sotomayor wrote. "Marijuana distribution is neither a felony nor a misdemeanor until we know whether the conditions in paragraph (4) attach."

    Paragraph 4 of Subsection (b)(1)(D) to Section 841 of the CSA lists exceptions to the crime of marijuana distribution that merit classification as a misdemeanant "simple drug possessor."

    Sotomayor added that the government's approach "would render even an undisputed misdemeanor an aggravated felony."

    "Recognizing that its approach leads to consequences Congress could not have intended, the government hedges its argument by proposing a remedy: Noncitizens should be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration, just as a federal criminal defendant could do at sentencing," she wrote.

    But the majority found this solution "entirely inconsistent with both the INA's text and the categorical approach."

    "The government cites no statutory authority for such case-specific factfinding in immigration court, and none is apparent in the INA," the 22-page opinion states. "Indeed, the government's main categorical argument would seem to preclude this inquiry: If the government were correct that 'the fact of a marijuana-distribution conviction alone constitutes a CSA felony,' then all marijuana distribution convictions would categorically be convictions of the drug trafficking aggravated felony, mandatory deportation would follow under the statute, and there would be no room for the government's follow-on factfinding procedure. The gov*ernment cannot have it both ways."

    Sotomayor then described a litany of "absurd consequences that would flow from" immigration investigations into such offenses.

    "That the only cure is worse than the disease suggests the gov*ernment is simply wrong," she wrote.

    Justice Clarence Thomas insisted in a dissent that the court should have affirmed since "no one disputes that Georgia punishes Moncrieffe's offense as a felony ... and, the offense is 'punishable under the [CSA],' 18 U. S. C. §924(c)(2), because it involved 'possess[ion] with intent to manufacture, distribute, or dispense, a controlled substance.'"

    "If the court continues to disregard the plain meaning of §924(c)(2), I expect that these types of cases will endlessly - and need*lessly - recur," Thomas added.

    In a separate dissent, Justice Samuel Alito said that the majority has just given dispensation to "drug traf*fickers in about half the states."

    "In those states, even if an alien is convicted of possessing tons of marijuana with the intent to distribute, the alien is eligible to remain in this country," Alito wrote. "Large-scale marijuana distribution is a major source of income for some of the world's most dangerous drug cartels, but the court now holds that an alien convicted of participating in such activity may peti*tion to remain in this country."

    Barbara Leonard
    Court News
    April 23, 2013

    http://www.courthousenews.com/2013/04/23/56939.htm

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