Court asks if pot possession spurs deportation
Posted: 4:44 am Fri, October 12, 2012
WASHINGTON, D.C. — At oral arguments this week, the justices of the U.S. Supreme Court grilled attorneys arguing over whether a permanent resident caught with just enough marijuana to roll a few cigarettes committed an “aggravated felony” that rendered him automatically deportable under federal law.
The case, Moncrieffe v. Holder, involves Adrian Moncrieffe, a Jamaican-born legal permanent resident who has resided in the United States since he came to the country with his family as a three-year-old. After being caught with a small amount of marijuana during a traffic stop, Moncrieffe entered a plea deal for marijuana possession with a stipulation that no conviction would enter as long as he stayed out of trouble during his five-year probationary period.
After the plea, the Department of Homeland Security initiated removal proceedings, concluding that the conviction triggered the Immigration and Nationality Act’s automatic removal provision, which also prohibits defendants from seeking relief from removal.
Moncrieffe challenged the action before the Board of Immigration Appeals, arguing that the state law offense did not constitute an “aggravated felony” under the law. But the board ruled against him, finding that the state law was analogous to the federal charge of possession of marijuana with intent to distribute, which constitutes an “aggravated felony.”
The Fifth Circuit affirmed and the Supreme Court granted certiorari.
‘It’s not rocket science’
At oral arguments, Thomas C. Goldstein, a partner in the Washington office of Goldstein & Russell, argued on Moncrieffe’s behalf that although under the Georgia law in question “there is going to be some conduct that would be a federal felony, … it’s also undisputed that the Georgia statute regularly involves prosecutions that would be federal misdemeanors” that would not trigger deportation.
Goldstein said that while such “under-inclusivity is a problem … it’s not a big problem. It’s not as big as their problem” of advocating an over-inclusive interpretation.
Justice Stephen G. Breyer asked whether courts can simply apply the deportation law only in cases where the defendant has been convicted and the drugs were actually sold, avoiding the problem of having minor, non-distribution crimes trigger deportation proceedings.
“I mean … it’s not rocket science, OK?” Justice Breyer said. “So why has no one done it?”
“Because I don’t think anybody would believe me if I went to an immigration judge and I said: ‘Judge, I promise, I promise … this isn’t a possession with intent to distribute case.’”
Chief Justice John G. Roberts Jr. seemed inclined to agree.
“Isn’t the reason we don’t look at the particular facts and particular case, and don’t depose four district attorneys … that the court has adopted a categorical approach precisely to avoid that type of inquiry in, whatever it is, 750,000 cases?” Justice Roberts asked.
“Yes. That’s correct,” Goldstein said, underscoring his argument that it is better to err on the side of not deporting minor drug offenders. “And it’s an even stronger point in our favor.”
‘Too much discretionary relief’
Pratik A. Shah, assistant to the solicitor general, argued for the government that the defendant’s reading of the law “would confer a free pass from aggravated felony treatment to criminal aliens convicted under a majority of state laws” governing drug possession.
“What Congress said when it passed this very provision was that immigration judges were granting too much discretionary relief to this very class of criminal aliens, and that is why it implemented this aggravated felony,” Shah said.
“Are there any other consequences?” Justice Ruth Bader Ginsburg asked. “We’ve been talking only about dispensation from removal. But are there any other consequences that matter?”
Shah replied that there are “implications beyond the immigration context.”
“At the same time that Congress enacted this aggravated felony provision, it made it a sentencing enhancement provision in criminal prosecutions for illegal reentry,” he said. “[I]f [the] petitioner’s rule were to prevail, [then a] sentencing enhancement would no longer have operative effect.”
A ruling is expected later this term.
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