On the morning of October 10, 2012, we arrived at the front steps of the Supreme Court. Waiting for the doors to open, we formed a small circle with our colleagues in the Immigrant Rights Clinic and our professor Alina Das. Surrounding us were crowds of journalists and activists—but hardly any of them were interested in the argument that we were scheduled to attend. Most of them were there to show their support, in one way or another, for the argument in Fisher v. University of Texas at Austin.[1] The great majority were unaware that Fisher was being preceded by oral argument for Moncrieffe v. Holder,[2] a case that would affect thousands of immigrants facing deportation from the U.S. due to past criminal convictions. After many months of anxious waiting, immigrants’ rights advocates around the country breathed a sigh of relief after reading the Moncrieffe opinion on April 23rd.
At base, Moncrieffe is about a superficially dry question of statutory construction: namely, whether Congress intended the social sharing of a small amount of marijuana to presumptively qualify as an “aggravated felony” for immigration purposes. The result in Moncrieffe, however, signals a welcome recognition that the immigration system treats immigrants with criminal convictions out of all proportion with the acts for which they were originally punished.
To understand the import of Moncrieffe, one must be acquainted with the “categorical approach,” the main interpretive tool for assessing the criminal convictions of noncitizens. For nearly a hundred years,[3] the categorical approach has served to focus immigration adjudications solely on the type of convictions on a noncitizen’s record, rather than the actual conduct that led to these convictions. The primary purpose of the categorical approach is to promote administrability and fairness in civil immigration proceedings, which lack the procedural safeguards of the criminal process.[4] The categorical approach also helps to promote predictability for criminal attorneys seeking to properly advise noncitizens of the consequences of potential criminal dispositions and pleas, as required by the Supreme Court under Padilla v. Kentucky.[5] While the bright-line rules of the categorical approach may sometimes cut against noncitizens, immigration advocates generally seem to be of the opinion that the categorical approach does more good than harm.
The last several years have seen a series of efforts by the Department of Homeland Security (DHS), with varying degrees of success, to erode the categorical approach.[6] Despite the additional work created for massively backlogged immigration courts in delving into the circumstances of noncitizens’ sometimes ancient criminal convictions, the government has attempted to undermine the categorical approach not only as a way to gather more information on the noncitizens it seeks to deport, but also as a way of imposing an insurmountable burden on respondents. The government’s position, at least until Moncrieffe, was that it could charge respondents with “evidence indicat[ing]” an aggravated felony and then force noncitizens to produce evidence rebutting this presumptive conduct on pain of deportation.[7] This position became the law in three circuits.[8] Essentially, the government’s solution to administrative difficulties caused by its rejection of the categorical approach was to shift the necessary record-building to respondents,[9] many of whom were detained, many of whom were without legal representation, and many of whose convictions occurred decades ago, with the necessary records long since lost or destroyed. The result was a government end run around any reasonable conception of basic fairness for immigrants with criminal convictions.
The detrimental impact of this erosion of the categorical approach became particularly acute for immigrants who were convicted of minor misdemeanor marijuana offenses, like Adrian Moncrieffe. Moncrieffe is a Jamaican national who had been a lawful permanent of the resident (“LPR” or “green card” holder) of the United States since 1984, when he was three years old.[10] During a traffic stop in 2007, police found 1.3 grams of marijuana in his car and he pleaded guilty to possession with intent to distribute, in violation of a Georgia statute.[11] As a first-time offender, Moncrieffe received no jail sentence, but instead was required to complete five years of probation, at the end of which his charge would be expunged.[12] While this plea proceeding may have seemed relatively innocuous to Moncrieffe and his criminal defense attorney at the time, it became the reason for his deportation proceeding: the Department of Homeland Security argued that his conviction was for a drug trafficking aggravated felony, and that Moncrieffe was removable from the United States and ineligible to seek any form of relief from deportation.[13]
Many others before Moncrieffe were unjustly treated as “drug trafficking aggravated felons,” as discussed at length in an amicus brief filed on behalf of immigration law professors[14]:
- Tam Duy Pham was a Vietnamese refugee who became an LPR in 2001. He pleaded guilty to conspiracy to commit a misdemeanor in violation of a Virginia statute that included the giving of marijuana, received a 12-month suspended sentence, and was placed on probation. Seven years after his guilty plea, he was removed from the United States for being a drug trafficking aggravated felon.[15]
- Belito Garcia arrived as an LPR in 1982, fleeing persecution and civil war in Angola. His parents, wife, and son were all U.S. citizens. Fourteen years after obtaining his green card, Mr. Garcia pled guilty to two counts of possession with intent to distribute marijuana in violation of Pennsylvania law. He also did not serve a jail sentence but received one year of probation. Even though he faced persecution if returned to Angola, he was prevented from seeking asylum.[16]
In Moncrieffe, the Supreme Court unequivocally held that such convictions do not necessarily constitute aggravated felonies.[17] This is because these convictions, without more, now definitively cannot establish a presumption that the underlying conduct corresponds to ‘drug trafficking’ as defined by the federal Controlled Substances Act.[18] The Court thereby reaffirmed the correct application of the categorical approach: when determining whether a particular criminal conviction renders a noncitizen deportable, immigration courts are to presume that it “rested upon [nothing] more than the least of th[e] acts criminalized.”[19] The Court also admonished the government for its continuous attempts to classify low-level drug offenses as “illicit trafficking aggravated felonies,” noting that such an approach “defies the commonsense conception of these terms.”[20] Moreover, the Court stated that “ambiguity in criminal statutes referenced by the INA [Immigration and Nationality Act] must be construed in the noncitizen’s favor”[21]—a rare affirmation of the rule of lenity in the immigration context.
Before Moncrieffe, lawfully residing immigrants could be deported for sharing a small quantity of marijuana without any opportunity to seek relief.[22] Now, thanks to seven members of the Supreme Court, the government may no longer rely exclusively on such conduct as grounds for separating noncitizens from their families and the only country they may have ever really known. However, while the immigrant rights community is savoring the Moncrieffe victory, the immigration system continues to treat noncitizens with criminal convictions in almost unimaginably harsh ways.[23] Litigation is only one of many tools to finally restore some measure of justice and proportionality to individuals who have long since paid their debts to society—our shared society.
Leila and Jesse are currently 2L Staff Editors on the Review of Law and Social Change. Both are representing noncitizens with criminal convictions in the Immigrants Rights Clinic.
[2] No. 11-702, 569 U.S. ___ (Apr. 23, 2013), available at http://www.supremecourt.gov/opinions/12pdf/11-702_9p6b.pdf.
[3] Alina Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev. 1669, 1688–1702, 1749–52 (2011). See also Moncrieffe at 6 (citing Das, supra).
[4] Moncrieffe at 15–16 (collecting cases and noting that the categorical approach “promotes judicial and administrative efficiency by precluding the relitigation of past convictions in minitrials conducted long after the fact”).
[5] 559 U.S. 356 (2010).
[6] See, e.g., Nijhawan v. Holder, 557 U.S. 29 (2009); Lanferman, 25 I. & N. Dec. 721 (B.I.A. 2012); Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008).
[7] See 8 C.F.R. § 1240.8(d).
[8] See Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc); Salem v. Holder, 647 F.3d 111 (4th Cir. 2011); Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009). But see Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008).
[9] See, e.g., Castro-Rodriguez, 25 I. & N. Dec. 698 (B.I.A. 2012), overruled by Moncrieffe v. Holder, No. 11-702, 569 U.S. ___ (Apr. 23, 2013). Cf. I.N.A. § 240(c)(3)(A) (requiring that the government bear the burden of proving a noncitizen’s removability by clear and convincing evidence).
[10] Moncrieffe at 3.
[11] Id.; Ga. Code Ann. §16-13-30(j)(1) (2007) (“It is unlawful for any person to possess, have under his control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.”).
[12] Moncrieffe at 3.
[13] Id. at 3–4.
[14] Brief of Immigration Law Professors as Amici Curiae in Support of Petitioner, Moncrieffe v. Holder, 569 U.S. ___ (2013) (No. 11-702), 2012 WL 2561163 [hereinafter Law Professors]. See also In Upcoming Supreme Court Case, the Immigrant Rights Clinic and the Center for the Administration of Criminal Law Weigh in with Amicus Briefs, N.Y.U. Sch. of L., News, http://ecmappdlv02.law.nyu.edu/nyu_law_website//news/UPCOMING_SUPREME_COURT_CASE_TWO_NYULAW_ENTITIES_WEIGH_IN (last visited May 5, 2013).
[15] Law Professors, supra note 14, at 24–25. See Pham v. Holder, 442 Fed. App’x 62 (4th Cir. 2011).
[16] Law Professors, supra note 14, at 34–35. See Garcia v. Att’y Gen., 462 F.3d 287 (3d Cir. 2006).
[17] Moncrieffe v. Holder, No. 11-702, 569 U.S. ___, slip op. at 1–2, 22 (Apr. 23, 2013).
[18] Id. at 6–9.
[19] Id. at 5 (citing Johnson v. United States, 559 U.S. 133, 137 (2010)) (internal quotation marks omitted).
[20] Id. at 21 (citing Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010)) (internal quotation marks omitted).
[21] Id. at 20–21. See also Fong Haw Tan v. Phelan, 333 U.S. 6 (1948).
[22] As the Court acknowledged in Moncrieffe, the result of the decision is not that Moncrieffe necessarily avoids deportation. His conviction still constitutes a controlled substance violation. At the very least, however, he may apply for cancellation of removal, which allows lawful permanent residents to demonstrate the reasons for why they should not be removed.
[23] See Peter Markowitz, Deportation is Different, 13 U. Penn. J. Const. L. 1299, 1301–03 (2011).
N.Y.U. Review of Law and Social Change 