A little rain on the Moncrieffe parade

Tuesday, April 23rd, 2013
By: Jonathan MontagJ.D.

On April 23, 2013, the Supreme Court issued its decision in Moncrieffe v. Holder. In the case, a man, appropriately Mr. Moncrieffe, got convicted of a marijuana distribution crime in Georgia. Drug distribution felonies are categorized as aggravated felonies and render an alien deportable and ineligible for relief. In other words , such a crime results in near-certain deportation. Under federal law, distribution of a small amount of marijuana without remuneration is not deemed an aggravated felony. It was not clear if Mr. Moncrieffe got convicted of distribution of a large amount of marijuana for money or a small amount without money as regardless, a person in Georgia can be convicted of the same marijuana distribution offense whether it was a large or small amount and whether or not he was paid and the conviction documents do not need to make it clear.

The lower courts, namely the immigration court, the Board of Immigration Appeals and the Fifth Circuit Court of Appeals concluded that Mr. Moncrieffe had to prove that he was convicted of the non-aggravated felony version of the crime. Ambiguity means he failed to meet his burden. He was thus deemed an aggravated felon and was ordered deported. Mr. Moncrieffe, apparently, could not prove he was distributing a small amount of marijuana without being paid.

The Supreme Court, in a decision written by Justice Sotomayor,  reversed, concluding that the government bears the burden of showing that Mr. Moncrieffe’s conviction was for an aggravated felony version set of elements and not the non-aggravated felony exception set. He was thus held not deportable for the offense. The Supreme Court could have held that the only charge against Mr. Moncrieffe was that he was an aggravated felon, that the charge was not sustainable, and then ordered Moncrieffe free from the specter of removal. However, the Supreme Court remanded the case. If the 5th Circuit does too, it will likely mean that Mr. Moncrieffe will end up being deported.

The key fact in this case is that Mr. Moncrieffe cannot prove that he was not convicted of distributing a large quantity of marijuana or not being paid. Had he been able to do that, he would have won his case at the immigration court, BIA, or Court of Appeals levels. On remand, immigration authorities can charge Mr. Moncrieffe with removability for being convicted of a controlled substance law other than a single offense involving possessing for one’s own use of 30 grams or less of marijuana. INA § 237(a)(1)(B). He may be able to show that he possessed less than 30 grams, but by virtue of his admission/plea to distribution, he cannot say that it was strictly for his own personal use. Thus, he would be removable, but eligible for relief from removal. In the decision, Justice Sotomayor pointed this out and named various forms of relief potentially available to Mr. Moncrieffe. The usual relief available is Cancellation of Removal for Certain Permanent Residents, INA § 240A(a). This relief requires, as a threshold to eligibility, having accrued five years of permanent residence, seven years of residence after a lawful admission, and not being an aggravated felon. The applicant for the relief has the burden of proving these elements in the Ninth Circuit according to a recent en banc Ninth Circuit case, Young v. Holder. The same rule applies in the  Fourth and Tenth Circuits, but not the Second circuit.

The lower courts concluded that Mr. Moncrieffe had the burden of proving he was not an aggravated felon and he failed. The Supreme Court concluded that the government had the burden to prove Mr. Moncrieffe was an aggravated felon and it also failed. However, now, assuming that Mr. Moncrieffe is charged with the non-aggravated felony controlled substance removability ground, if he must prove that he is not an aggravated felon, he will fail again and be ordered removed. It will depend on what the 5th Circuit has to say about the burden. With a circuit split already present regarding this issue, Mr. Moncrieffe may get to go back to the Supreme Court on this issue, though hopefully (from my Ninth Circuit’s perspective) someone else will get there sooner.  Posted April 23, 2013.


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