Supreme Court Weighs Immigration Consequences of Misdemeanor Conviction

By Associate Professor Kevin Lapp

Moncrieffe v. Holder, argued in mid-October before the United States Supreme Court, involves a non-citizen who pled guilty in Georgia state court to misdemeanor possession with intent to distribute 1.3 grams of marijuana (about half the weight of a penny) with no evidence that he received any money in exchange for drugs. Federal law likewise considers possession with intent to distribute such a small amount of marijuana without remuneration to be a misdemeanor offense. Knowing those two things, you'd probably puzzle at the notion that the government is seeking to classify Moncrieffe as an "aggravated felon" for purposes of deporting him. But in the Wonderland world of immigration law, that is just what is happening.

The issue in Moncrieffe v. Holder is whether Moncrieffe's state misdemeanor drug possession offense constitutes a "drug trafficking aggravated felony" under federal law. Longstanding precedent, and recent Supreme Court case law, says that courts should apply what is called the categorical approach to answer the question. That approach involves determining the minimum conduct that is necessarily established by the state conviction, and prohibits looking into anything behind the conviction, such as underlying facts or possible alternative offenses that could have been charged. If the minimum conduct of the state crime is necessarily equivalent to a felony under federal narcotics law, then even a state misdemeanor conviction becomes an "aggravated felony" for immigration purposes. If it is not necessarily a federal felony (because the state crime captures conduct that could be either a federal felony or misdemeanor), then the categorical approach says that it is not an aggravated felony.

Moncrieffe's state misdemeanor marijuana offense does not require proof of any minimum amount of marijuana, nor does it require proof of remuneration. As such, it criminalizes the social sharing of small amounts of marijuana as well as the distribution of larger amounts. Because the state crime encompasses conduct that would clearly be a federal misdemeanor, Moncrieffe argued that the categorical approach means that it is not necessarily equivalent to a federal felony and should not be considered an aggravated felony. The upshot is that he remains deportable, but has an opportunity to seek relief from deportation.

The government asserted that courts should apply the categorical approach and find that, because the elements of Moncrieffe's state conviction match those of the federal felony of possession with intent to distribute, he is an aggravated felon. But only presumptively so. The government maintains that, in situations like these, immigration judges should hold a hearing where non-citizens, like Moncrieffe, could present evidence that their crime involved only a small amount of marijuana and no remuneration. This would allow the judge to determine, based on the underlying facts, that the non-citizen should not be considered an aggravated felon.

That seems reasonable enough on its face, but there are several big troubles with the government's position. First, if someone is an aggravated felon, he is subject to mandatory detention and deportation, without any opportunity for relief. As the government argued to the Court, Congress has repeatedly restricted access to relief from deportation in favor of mandatory deportation provisions because it did not want immigration judges exercising discretion on these matters. Chief Justice Roberts wondered how the government could claim that discretion has been intentionally taken away while also stating that such discretion should nevertheless be exercised. Justice Kagan told government counsel that "your arguments all go towards a very purist solution. [It's an aggravated felony, so no discretion.] And then you say, oh, no, that's a crazy solution." Moreover, there is no provision in the statute for the evidentiary hearing proposed by the government, suggesting (in line with the government's initial claim about eliminating discretion) that Congress did not intend for such a mitigating hearing to be conducted.

Finally, the government's approach turns the categorical approach on its head. In contrast to how the categorical approach has worked for decades, identifying the minimum conduct necessary to satisfy the essential elements of the crime, the government seeks to have immigration adjudicators assume the maximum conduct that could be punished in these cases, even in the absence of such findings by the criminal court. It would then place the burden on the non-citizen to show that the court should ratchet down from there.

This is not the first time that the government has argued for the ability to go outside the four corners of the conviction to determine the immigration consequences of crimes. In Carachuri-Rosendo v. Holder (2010), the Supreme Court unanimously rejected the government's position that immigration judges should be able to go beyond the conviction to elevate a misdemeanor drug possession offense to an aggravated felony. The difference here is that the government wants to invent a proceeding that would permit the immigration judge to go outside the conviction to determine if the court should go down from an aggravated felony.

That difference should not change the result. Going outside the conviction, and having individual hearings in thousands of cases to determine whether a state misdemeanor conviction involved underlying facts that could have only been prosecutable as a federal misdemeanor, is an invitation for a mess. It works against the usual government assertions of the need for efficiency and uniformity in immigration proceedings. Practically speaking, it would be a nearly impossible challenge for uncounseled non-citizens in jail, often far from their former homes and potential witnesses and sometimes years removed from their offense, to marshal the necessary evidence to prove to an immigration judge that the facts underlying a conviction fit the misdemeanor federal offense.

The categorical approach's appeal is that it safeguards basic concepts of due process, uniformity, efficiency and proportionality. In the already complicated world where criminal law and immigration law overlap, the court should reject the government's muddled approach and stick with the categorical approach as it has traditionally been applied.