By Nancy E. Miller & Robert L. Reeves

The United States government is very unforgiving when it comes to drug convictions.  This is especially true for non-citizens.  What might be considered minor offenses, such as simple possession of a controlled substance, can result in an alien being inadmissible and deportable from the United States.  In most instances, there is no waiver available to overcome the banishment.  Therefore, many non-citizens with drug convictions are permanently banned from the United States.   

However, the Supreme Court recently issued a decision that ameliorates this draconian result for some immigrants.  Illicit trafficking in a controlled substance is an aggravated felony.  A noncitizen convicted of an aggravated felony is deportable.  He is not eligible for any discretionary relief which means he cannot get a waiver of that ground of deportability.  Noncitizens who have never had a green card may be eligible for some discretionary relief only if their aggravated felony conviction is non-drug-related.  In Moncrieffe v. Holder, the Supreme Court held that if a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration (money) or more than a small amount of marijuana, it is not an aggravated felony.  In coming to this decision, the Court employed the categorical approach, which means that the statute defining the crime of conviction is examined to see whether it fits within the generic federal definition of a corresponding aggravated felony.  The state offense is a categorical match only if the conviction of that offense necessarily involved facts equating to the general federal offense.  The court presumes that the conviction rests upon nothing more than the least of the acts criminalized before determining whether those acts are encompassed by the generic federal offense.  It does not examine the facts underlying the case before it.

The Court held that illicit trafficking in a controlled substance is a generic crime.  Therefore, the state drug offense must meet two conditions.  It must necessarily proscribe conduct that is an offense under the Controlled Substance Act (CSA) and the CSA must necessarily prescribe felony punishment for that conduct. Possession of marijuana with intent to distribute is clearly a federal crime.  The Court looked to whether the state law necessarily proscribes conduct punishable as a felony under the CSA.  The CSA provides that marijuana distribution is a felony punishable by not more than 5 years in prison except that any person who violates the statute by distributing a small amount of marijuana for no remuneration shall be treated as a simple drug possessor, meaning as one convicted of a misdemeanor.  Since the state law did not reveal whether either remuneration or more than a small amount of marijuana was involved, the conviction did not necessarily involve facts that correspond to an offense punishable as a felony under the CSA.

Since Moncrieffe was a green card holder who was not convicted of an aggravated felony, he was eligible to apply for cancellation of removal for lawful permanent residents or for asylum, if he met the other requirements.  He would still required to persuade the immigration judge that he was worthy of a favorable exercise of discretion but he would have the opportunity to do that. Justice Sotomayor concluded that social sharing of a small amount of marijuana does not constitute an aggravated felony.  She pointed out, that this was “the third time in seven years that [the Court] has considered whether the Government has properly characterized a low-level drug offense as ‘illicit trafficking in a controlled substance’, and thus an ‘aggravated felony’.  Once again, [the Court held] that the Government’s approach defies ‘the commonsense conception’ of these terms.”

It is heartening to see the highest Court in the land holding the government to a common-sense standard.  Minor transgression should not result in permanent harsh consequences.  Justices Sotomayor, Roberts, Scalia, Kennedy, Ginsburg, Breyer and Kagan seem to understand that.  Non-citizens who have been convicted of drug offenses may have previously been told that they are not eligible for any relief under the Immigration & Nationality Act. They may even have been ordered removed by an immigration judge. They should consult an experienced and knowledgeable immigration law attorney to see if that has changed.  Relief may now be available.  They should take advantage of that fact.

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