Argument preview: Do facts really matter?
At 10 a.m. on Wednesday, the Supreme Court will hold a one-hour hearing on the legal standard for deporting a non-citizen who has been convicted of possessing a small amount of marijuana, with no evidence that he received any money in any transaction. The case of Moncrieffe v. Holder will be argued by Thomas C. Goldstein of the Washington law firm of Goldstein & Russell, for the non-citizen, Adrian Moncrieffe. The government will be represented by Pratik A. Shah, an Assistant to the U.S. Solicitor General.
Non-citizens living in the United States, even if they have gained a permanent right to be in the country, can be sent involuntarily back to their homelands if they are convicted of what Congress considers to be an “aggravated felony.” The Supreme Court has spent years and much effort trying to sort out what that means, but it seldom has had as simple a case as the one now before it, involving a native of Jamaica who came to the United States legally at age three, and lived in the country, achieving permanent legal status, until he was sent home as an adult with two children.
He has been deported after being convicted of possessing about one-twentieth of an ounce of marijuana; there is no proof that he received any money, so his lawyers have argued that he is hardly guilty of “illicit trafficking” in illegal drugs, as a commercial dealer would be. His case, though, raises a significant issue of how a state conviction is to be treated, when judging whether it qualifies as an “aggravated felony” that can lead to deportation. The case, in effect, turns on the issue of whether facts really matter in such a case, or whether a hard-and-fast legal rule settles it.
The Supreme Court obviously granted review in the case of Adrian Moncrieffe because there is a clear-cut split in lower courts on the core legal issue at stake. Even the government, while opposing Supreme Court review, said there was a disagreement, but argued that it was not well-developed and might go away. The Circuit Courts are divided, three to two, on whether a first-time offender found guilty of having a small amount of marijuana has committed an “aggravated felony,” when the conviction does not include evidence that the individual was a distributor who got money for dealing.
Under federal immigration law, a non-citizen who has been convicted of an “aggravated felony” is subject to deportation. If the conviction has come under a state law, that can rise to the deportation-eligible level if it is equivalent to a felony under federal narcotics law. Under federal law, a person who has possessed with intent to distribute less than 50 kilograms of marijuana has committed a felony, although a provision in the law says that if the amount distributed was small with “no remuneration,” that is treated as only a misdemeanor. If that provision applies, then a state possession with intent to distribute would not become a deportable offense. A key issue now before the Court is whether that provision does have a role that would work to Adrian Moncrieffe’s advantage.
In 2008, Moncrieffe was arrested in Georgia, with 1.3 grams of marijuana in his possession. He was charged with possession with intent to distribute. The law in Georgia is not limited to any minimum amount of marijuana and it does not require proof that the person with a drug got paid for it. Moncrieffe pleaded guilty, and was put on probation for five years.
About two years later, federal official told him he would be deported, based on the Georgia conviction. He lost an appeal within the immigration system, with the conclusion that his crime did amount to an “aggravated felony.” The Fifth Circuit Court agreed. While conceding that there was a split among appeals courts on the question, it concluded that, since the amount of marijuana was not something that prosecutors had to prove in his case, as an element of the offense, then his crimes constituted a felony under federal law. He has since been deported, but that apparently does not mean that he cannot continue to contest his deportation; he could return to the U.S. if the deportation order were overturned.
The Fifth Circuit Court applied a hard-and-fast version of what has been called the “categorical approach” to determine whether the crime at issue in a state conviction reaches the deportability level under immigration law. The analysis focuses on the elements of the state crime, without regard to the specific facts in a given case. So, immigration officials look at the factors that prosecutors must prove to get a conviction — in other words, the crime’s elements — and if they find that proof of those same elements would be a federal felony, that ends the inquiry.
Under that line of reasoning, because possession of marijuana with intent to distribute it is a felony under federal narcotics law, the crime is complete if, under the state law, the accused knowingly possessed marijuana with intent to distribute it. The provision in federal law that the situation can be mitigated if the amount was small and no money changed hands does not even come into play, according to this approach. In other words, Moncrieffe had virtually no chance to avoid deportation once federal officials concluded that there was an overlap between what his state crime constituted and what federal law required for a felony offense.
In his petition to the Supreme Court, Moncrieffe’s lawyers argued that the mitigating provision has to be a part of the analysis. The Justice Department, in reply, argued that that was beside the point. Categorically, the Georgia conviction made his crime the same as if he had been convicted of a federal felony, the Department asserted. Too many practical difficulties would arise, the Department told the Court, if a focus on the factual events underlying a state conviction had to be made in each case.
While Moncrieffe’s lawyers conceded that the Fifth Circuit ruling against him squares with similar rulings by the First and Sixth Circuits, it conflicts with rulings by the Second and Third Circuits and, they argued, with precedent from the Supreme Court. In those other circuits, the petition said, the appeals courts have ruled that a state law drug conviction without proof of a payment or of a specific amount of marijuana is to be read as a misdemeanor for immigration law purposes, unless there is evidence behind a conviction that proves otherwise.
The petition contended that the issue in the case “affects hundreds, if not thousands,” of individuals every year, because drug convictions make up “the number one criminal basis” for deportations — something like one out of every four.
The Court granted review of the case on April 2.
Briefs on the Merits
There is no dispute in this case that the case is to be decided using the so-called “categorical approach” to determine whether a conviction under a state law qualifies as an “aggravated felony” for purposes of deportation. Thus, the dispute in the case comes down to whether the “categorical approach” is to be modified by the provision in federal narcotics law that takes into account whether a drug possession charge was based on a small amount of the drug and no money was involved. The split in the lower courts, Moncrieffe’s brief on the merits argued, is due to differing versions of the “categorical approach.”
In Moncrieffe’s case, the Fifth Circuit interpreted that approach to mean that, once he was convicted of possession with intent to distribute, that amounted to a federal felony because the quantity of drug involved made no difference under the Georgia conviction. That put on Moncrieffe the burden of proving that his crime was actually only a misdemeanor, and the Fifth Circuit said he had failed to prove that in the immigration proceedings. Any marijuana conviction that is silent on the amount of drugs or on whether money was involved is a felony, according to that approach.
By contrast, Moncrieffe’s brief contended, the “categorical approach” taken by other federal appeals courts follows this reasoning: a state conviction is not an aggravated felony because the actual basis of the conviction — the findings made to get a guilty plea or verdict — do not necessarily add up to being a felony. In Moncrieffe’s case, the fact that the amount of marijuana involved was small and the fact that there was no money exchanged makes the conviction only a misdemeanor when the mitigating provision of federal law is taken account, the brief asserted.
“Congress provided that a marijuana-related conviction may or may not be a felony, depending on the amount of marijuana involved and whether the defendant received any remuneration,” the Moncrieffe brief declared. His conviction established only two facts: that he possessed marijuana, and that he intended to distribute it. That could make it either a felony or a misdemeanor under federal law, and in this case, it should translate as a misdemeanor only, the brief contended. The facts established by his conviction should work in his favor, his lawyers argued. That was dispositive, on its face, they said.
Moncrieffe’s side has drawn the support of a handful of amicus briefs, from immigrants’ rights groups to professors of immigration law and human rights advocates. There are no amici on the government’s side.
Holding to the position the government took at the petition stage, the U.S. Solicitor General urged the Court to embrace a “categorical approach” that treats a state conviction as an “aggravated felony” if the state conviction has all of the elements of a felony as defined by federal narcotics law. Moncrieffe’s Georgia crime had the same elements as a federal drug felony: possession and intent to distribute.
The provision in the law that would consider the small amount of drug involved, plus the lack of any money changing hands, comes into play, the Solicitor General contended, only as a factor for immigration officials to consider. They will allow a non-citizen before them to prove that this “mitigation exception” does apply in a given case, the brief said. “That subsequent, ‘circumstance-specific’ inquiry does not contravene the categorical approach but rather operates outside of it, and addresses any concern that the decision below would produce unintended or unfair results,” the government brief told the Court.
Moncrieffe, it argued, should not be allowed to benefit from “the rule of lenity” or from ambiguities about the scope of his conviction, since the elements of his conviction show he has committed a felony under immigration law, making him eligible for deportation.
Both sides agreed that Moncrieffe’s conviction is the kind that could lead to deportation. There is a sharp difference, though, over how a specific case like his gets to that point, and to whether the non-citizen involved has a chance to avoid being deported. Moncrieffe’s brief contended that his conviction should never qualify as an “aggravated felony,” and so he should have a chance to prove that his offense involved only a small amount, with no money exchanged, and that should make him eligible for a ruling by the government that he can stay. The government brief suggested that, if the citizen does not prove that his offense fit the category for a misdemeanor under federal law, he remains deportable automatically; this is a more complex procedure for the non-citizen to pursue.
The Court has before it in these cases quite straightforward provisions of law, but they have something of an internally contradictory character to them, so the Justices may have to satisfy themselves on the policy goals that Congress was pursuing in passing those laws before it can sort through the statutory language. Did the lawmakers want deportation to be virtually automatic on conviction of a state drug crime that seems superficially to overlap with the scope of a federal felony, or did they mean to leave some discretion when the state crime was not that of a significant drug dealer? What system did the lawmakers think was the most workable to enforce both drug crimes and immigration policy? Would they have been content with a system that leaves it to immigration officials to show some leniency, or did they intend to require that?
Over the years, most of the Justices have made it very clear that they accept that drug crimes are serious indeed, and that the government has — and should have — significant authority to deal with those offenses. It is not clear, though, that they would consider that any drug offense, however minor, should be treated as threatening to society. Moncrieffe’s best hope in this case would seem to depend upon whether the Justices can look at the specifics of his crime, compare it to the quite drastic remedy of deportation of someone who has grown up in the U.S. since childhood, and then what he did deserve less. After all, even the state of Georgia thought probation was enough of a punishment.
This case, made simple
America’s drug laws are often complex, multi-faceted declarations of policy toward crime, and it is the Supreme Court’s ultimate task, when it has a drug conviction before it, to make some sense of those laws. This case is a typical one in which one provision of law seems to cut one way, and a second provision appears to cut another way. Here, one law would send an immigrant back to his home country upon conviction of a drug crime, even a minor one, merely because there was a conviction. But a separate law seems to say that, if the crime was a minor one, that should make it subject to a less harsh penalty.
The Jamaican native involved in the case was convicted of having a small amount of marijuana in his car when he was stopped by police. The Court has to sort out whether the crime itself, and the details of his actual conviction, are the kind that Congress intended to make as the basis for virtually automatic deportation when committed by a non-citizen, even one who has gained a legal right to live in the U.S.
Disclosure: Thomas C. Goldstein, who will be arguing in this case, and his colleagues at the law firm of Goldstein & Russell have various capacities with this blog that are separate from their professional representation of Adrian Moncrieffe. The author of this post works only for the blog and operates independently of the law firm’s practice.