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Lory D. Rosenberg on Appeal Matters

Moncrieffe v. Holder: It Is (or Must Be) Necessarily So

Rating: 6 votes, 5.00 average.

The Supreme Court held 7-2 in Moncrieffe
v. Holder,

No.
11-702 (April 23, 2013)
that, "If a noncitizen's conviction for a mari*juana
distribution offense fails  to establish
that the of*fense involved either remuneration or


more than a small amount of marijuana, the conviction
is not for an aggra*vated felony under the INA."


-------------------------------------------------------------------------------------------


 


The
Moncrieffe case involves the
aggravated felony definition of a conviction involving "illicit
trafficking in a controlled substance," which "includ[es] a drug trafficking
crime (as defined in section 924(c) of title 18)."  INA § 101(a)(43)(B).


In turn, 18 U. S.
C. §924(c)(2) defines "drug trafficking crime" to mean "any felony punishable
under the Controlled Substances Act [(CSA)]. . . ".  


The
issue before the Court in Moncrieffe  v.
Holder
was whether the statutory provisions in the INA requiring removal
and precluding the Attorney General from granting discretionary relief from
removal to an aggravated felon, apply to an individual convicted under a state
statute that prohibits "the social sharing of a small amount of marijuana?"[1] Moncrieffe v. Holder at 1.  Put another way, does INA § 101(a)(43)(B), the
aggravated felony category for illicit trafficking in a controlled substance,
necessarily encompass every conviction of
possession of marijuana with intent to distribute without regard to the amount
and whether remuneration was involved, and does such a conviction "nec*essarily"
involve conduct punishable as a felony under the CSA? Moncrieffe at 7.


The Court held that
conviction of possession of marijuana with intent to distribute under a state
statute encompassing conduct that is treated as a federal misdemeanor pursuant to
an exception under the sentencing section of the Controlled Substance Act,
cannot be an aggravated felony.  Unequivocally
endorsing the categorical approach and reaffirming the limited nature of the
few exceptions articulated in earlier opinions, the Court addresses the
Government's objections and proposals, dismissing them as exaggerated and
unfounded.  The Court's opinion strongly
discourages "mini trials" and other deviations from the categorical
approach.  Moreover, the Court  appears to adopt a single categorical
determination  that a conviction is not
an aggravated felony as dispositive for all purposes in a removal proceeding.


This blog, containing some
of the highlights of the Court's opinion, does not purport to offer an
exhaustive analysis of the subject matter,  nor to constitute a comprehensive practice
advisory.  Please read the Court's
opinion in its entirety. 


The Court's opinion in Moncrieffe v. Holder establishes that to
constitute an aggravated felony under INA
§ 101(a)(43)(B),  a  state drug conviction must "necessarily" proscribe conduct that is an
offense under the CSA, and the CSA must "necessarily" prescribe felony
punishment for that conduct. Moncrieffe
v. Holder
at 6.  Under the
categorical approach,  the elements in
the state statute of conviction  must
correspond point by point to a generic federal defini*tion of a corresponding
aggravated felony.  The mere fact of a
conviction for possession with intent to distribute marijuana, standing alone,
does not reveal whether either remuneration or more than a small amount of
marijuana was involved. Consequently, without more, one cannot determine
whether the conviction amounts to an offense that is comparable to a federal
felony and punishable under the CSA. 


The
Supreme Court ruled that rather than assume that any conviction of  marijuana distribution must be a felony
involving illicit trafficking in  a
controlled substance,  in which case the
offender may attempt to demonstrate that the conviction was for a lesser
offense and not an aggravated felony, the presumption is more properly
reversed.  Cf. Matter of Castro-Rodriguez, 25 I&N Dec. 698   (BIA 2012),   Moncrieffe
at 15.  Accordingly, "[i]f a  noncitizen's conviction for a marijuana distribution offense fails to establish  that the offense involved either remuneration
or more than a small amount of marijuana, it is not an aggravated felony under
the INA." Moncrieffe, supra. at (emphasis added).


The
key phrase in this holding is "non-citizen's conviction . . . fails to
establish
. . ." (emphasis added). 
Examination of the conviction is determinative; the nature of the
conviction as defined in the state (or federal) statute and demonstrated by the
criminal court record is controlling.   As
the Supreme Court explained, "the INA asks what
offense the noncitizen was 'convicted' of, 8 U. S. C. 1227(a)(2)(A)(iii), not
what acts he committed. '[C]onviction' is 'the relevant statutory hook.' 4
[footnote omitted]" Moncrieffe,
supra.
at 6 (citing Carachuri-Rosendo v. Holder, 560 U. S. ___, ___ (2010) (slip op., at 16); see United States ex rel. Mylius v.
Uhl,
210 F. 860, 862 (CA2 1914)).


Categorical
Approach Under Moncrieffe


In
Moncrieffe, the Supreme Court
unequivocally has endorsed the propriety of the categorical approach in
construing the conviction of an offense claimed to constitute an aggravated
felony.  Following a "categorical
approach" means determining whether the state offense of conviction is
comparable in nature to a generic federal offense that implicates an aggravated
felony offense listed in the INA.  Moncrieffe, supra.  at  4-5 (citing
Nijhawan v. Holder, 557 U. S.  29, 33-38 (2009); Gonzales v. Duenas-Alvarez, 549 U. S. 183, 185-187 (2007).  


The
Supreme Court emphasized strongly that it does not consider the facts
underlying the particular case, but evaluates whether "the state statute
defining the crime of conviction" categorically fits within the "generic"
federal definition of a corresponding aggravated felony. Moncrieffe at 5 (citing Duenas-Alvarez
at 186 (in turn citing Taylor  v. United States, 495 U. S. 575, 599-600 (1990)).  Indeed, "[w]hether the noncitizen's actual
conduct involved such facts 'is quite irrelevant.' United States ex rel. Guarino v. Uhl, 107 F. 2d 399,
400  (CA2 1939) (L. Hand, J)." Moncreiffe at 5.


The
Court ruled that the evidence in the record must "'necessarily' involve[] . . . facts equating to [the] generic
[federal offense]." Shepard v. United
States
, 544 U. S.
13, 24 (2005) (plurality opinion) (emphasis added). This mention of the
evidentiary record refers to the "modified categorical approach," an
examination of the court record permitted when the statute of conviction is
divisible or ambiguously refers to more than one offense and the specific crime
of conviction cannot be determined from the elements of the statute alone. Id.  The Court differentiates the outcome in a "hypothetical inquiry" situation, which it overruled
in Carichuri-Rosendo, emphasizing
that it's "more focused, categorical inquiry" in this case addresses whether
the record of conviction of the predicate offense necessarily establishes
conduct that the CSA, on its own terms, makes punishable as a felony. Id., at
___ (slip op., at 16).


Moreover,
 the Court cautions that when the record
provides nothing more, "we must presume that the conviction "rested upon
[nothing] more than the least of th[e] acts" criminalized, and then deter*mine
whether even those acts are encompassed by the generic federal offense. Moncrieffe,  at 5 (citing Johnson v. United States, 559 U. S. 133, 137 (2010);  Guarino, 107 F. 2d, at 400). Thus, the
least of the acts covered by the statute of conviction must necessarily constitute an aggravated
felony.


Furthermore, the Court
ruled that not only must the state offense of convic*tion meet the "elements"
of the generic federal offense defined by the INA, but the CSA must necessarily punish that offense as a
felony. Moncrieffe, supra, at 10, 13.  The Court stated plainly, "[i]n other words, to satisfy the categorical approach,
a state drug offense must meet two conditions: It must "necessarily" proscribe conduct that is an offense under the CSA,
and the CSA must "necessarily"
prescribe felony punishment for that conduct." Moncrieffe at 6.


Punishable As A Felony Under
the CSA


In  Lopez v. Gonzales, 549 U. S.
47, 60 (2006),  the Court  ruled that a "state [controlled substance] offense
constitutes a 'felony punishable under the Controlled Substances Act' only if
it proscribes conduct punishable as a felony under that federal law." [2] Moncrieffe, supra. at
3.  Notably,  the CSA includes an exception to the
punishment of all marijuana offenses as felonies, providing that


" 'any person who vio*lates
subsection (a) . . . by distributing a small amount of marihuana for no remuneration
shall be treated as' a simple drug possessor,


21 U. S. C. §844, which for the
Court's purposes means as a misdemeanant [footnote
omitted]."  Thus, it does not necessarily involve conduct punishable
as a felony.


With
it's April 2013 opinion in Moncrieffe, the
Supreme Court now has rejected the Government's attempt to characterize a
low-level drug offense as "illicit trafficking in a controlled substance," and
thus an "aggravated felony," for the third time in 7 years. Writing for
the majority, Justice Sotomayor pointed out bluntly that "[O]nce again we
hold that,



  • "the
    Government's approach defies "the 'commonsense conception'" of these terms. Carachuri-Rosendo,
    560 U. S., at ___ (slip op.,
    at 9) (quoting Lopez, 549 U. S., at 53) . . .

  • "[s]haring a
    small amount of mari*juana for no remuneration . . . "does
    not fit easily into the 'everyday un*derstanding'" of  "trafficking," which "'ordinarily . . . means some
    sort of commercial dealing.'" Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez,
    549 U. S.,
    at 53-54). . . . [and]

  • "it [is not]sensible that a state
    statute that criminalizes conduct that the CSA treats as a misde*meanor should
    be designated an "aggravated felony."


Moncrieffe at 21-22.


As the Court states,
"[t][he only way to know whether a marijuana distribution offense is 'punishable
as a felony' under the CSA, Lopez, 549 U. S., at 60, is to know whether
the conditions described in paragraph (4) are present or absent." Moncrieffe at 9. In the context of a felony punishable
under the Controlled Substances Act, where the
state statute covers conduct  that may be
a felony or  a misdemeanor, but the
record does not specify the conduct that constitutes the basis of the conviction,
Mr. Moncrieffe's conviction could correspond to either the CSA
felony or the CSA misdemeanor.   The Moncrieffe
Court ruled that 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.
The Court concluded that "[u]nder the categorical approach, then, Mr. Moncrieffe
was not convicted of an aggravated felony."  Id. at 9.


Significantly,
the Court  acknowledged that
consideration of the sentencing  exception
in the CSA may permit some offenders to  avoid
aggravated felony status by operation of the categorical approach.  At the same time, the Court rejected the Government's
objection to that under inclusive result as "little more than an attack on
the categorical approach itself.." Moncrieffe
at 21.  The Court stated directly that,
"[w]e prefer this degree of imperfection to the heavy burden of re litigating
old prosecutions. See supra, at
15-16. And we err on the side of under inclusiveness because ambiguity in
criminal statutes referenced by the INA
must be construed in the noncitizen's favor. See Carachuri-Rosendo, 560 U. S.,
at ___ (slip op., at 17); Leocal v.
Ashcroft
, 543 U. S.
1, 11, n. 8 (2004)."


One
Categorical Aggravated Felony Determination


Furthermore,
the Court's opinion appears to reasonably resolve the applicability of the results
of the initial categorical assessment in determining statutory eligibility for
relief from  removal.   Early in the Moncrieffe opinion, the Court refers to a
related but different circumstance in which it's decision in "Carachuri-Rosendo construed a different
provision of the INA that concerns cancellation of removal, which also requires
determining whether the noncitizen has been "convicted of any aggravated felony."
8 U. S.
C. §1229b(a)(3).  The Court states  "Our analysis is the same in both
contexts," strongly suggesting that it finds the initial categorical
determination binding in all phases of the case. Moncrieffe at 6,  note 4.


In
addition, when responding to the government's concerns that the Court's
endorsement of the categorical approach may result in noncitizens experiencing
greater latitude under the INA, the Court addresses the relief phase of removal
proceedings as following naturally from the initial categorical determination
that a conviction is not an aggravated felony. Appropriately, there is no  distinction between the categorical
determination already made and the noncitizen's need to establish eligibility for
relief. 


Instead,
the  Court addresses the impact
of  a noncitizen's ability to avoid
the  imposition of the aggravated felony
bars and preclusions after such a categorical determination, ruling that such  treatment "does not mean escaping
deportation . . . . It means only avoiding mandatory removal.  Moncrieffe at    (citing Carachuri-Rosendo, 560 U. S.,
at _ (slip op., at 17).   The Court
recognizes that "[a]ny marijuana distribution offense, even a misdemeanor,
will still render a noncitizen deport*able as a controlled substances offender.
8 U. S.
C. §1227(a)(2)(B)(i)," but that  "the
 noncitizen may seek relief from removal
such as asylum or cancellation of removal, assuming he satisfies the other
eligibility criteria. §§1158(b), 1229b(a)(1)-(2)."  Moncrieffe
at  19-20.


With
respect to the nature of the conviction, eligibility for relief appears to be
presumed by the Court, noting that "those forms of relief are
discretionary. The Attorney General may, in his discre*tion, deny relief if he
finds that the noncitizen is actually an active drug trafficker.  . . just as he may deny relief if he
concludes the negative equities outweigh the positive equities of the
noncitizen's case for other reasons." Moncrieffe,
id.
at 20-21.


Beyond
this potentially far reaching breakthrough in the standard for construing the
impact of a criminal conviction on eligibility for discretionary relief, the
Court's opinion reinforces numerous valuable principles that apply to the
construction of statutory language and application of the categorical approach
in construing criminal convictions in the immigration law context.  This rich opinion is one well-worth reading
and studying for your client's benefit.







[1] Conviction of  an
offense classified as an  aggravated
felony not only renders a noncitizen deportable, pursuant to §1227(a)(2)(A)(iii),
but also ineligible for asylum, and cancellation of removal under  §§1158(b)(2)(A)(ii),(B)(i); §§1229b(a)(3),
(b)(1)(C), and other discretionary forms of relief from removal.




[2]
A noncitizen's conviction of an offense that the Controlled Substances Act
(CSA) makes punishable by more than one year's impris*onment will be counted as
an "aggravated felony" for immigration purposes because  a "felony" is an offense for which the
"maximum term of imprisonment authorized" is "more than one year." 18 U.S.C. §3559(a)(5).   Moncrieffe, supra. at 2.



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