United States Supreme Court Opinion

The US Supreme court will be hearing oral arguments in the case of Moncrieffe v. Holder, an immigration issue first heard by the Fifth Circuit Court of Appeals. In his appeal before the Supreme Court, Moncrieffe tables yet another challenge by an immigrant to the charge that the conviction of him comprises an “aggravated felony” in the context of immigration law—a decision that can generally result in permanently banishing the convicted from the United States.

In Moncrieffe, a lawfully and permanently residing citizen has been convicted for committing a state offense that holds the person who is responsible for selling or transferring marijuana, as criminal and thus the convicted has been sentenced to probation. According to the

Federal law, the offense of trafficking in drugs is considered an aggravated felony, but there exists a misdemeanor exception for trafficking in a small quantity of marijuana for no financial motives. The statute of state under which Moncrieffe has been served conviction results in criminalizing both conduct that would make up an aggravated felony (sale and trafficking of marijuana for financial gains) and conduct that would not (trafficking in a small amount of marijuana without any financial motives). Moreover, the record pertaining to the conviction clearly showed that Moncrieffe's conduct would not bring this case within the realm of misdemeanor exception.

According to the Fifth Circuit, where a statute of state provides for both aggravated felony and marijuana misdemeanor conduct and where the record pertaining to the conviction is not clear regarding the type of conduct that was involved, then the offense should be presumptively considered as an aggravated felony. This determination of the court directly results in the court of appeals effectively setting aside the old categorical or modified categorical approach to deciding whether an offense should be considered as an aggravated felony or otherwise. Usually, if the record associated with the conviction fails to clearly declare that the conduct involved makes up an aggravated felony, then the government will not be able to fulfill the burden of proving the conviction that a lawfully residing immigrant should be removed as an aggravated felon. Yet, the rule implemented in this case by the Fifth Circuit (and also by the Board of Immigration Appeals) does not incorporates such approach: in cases where the record pertaining to conviction fails to clearly demonstrate the need for an aggravated felony, the Fifth Circuit's rule would be that that an immigrant whose case is before the court shows his own removability to be false by fundamentally re-litigating his criminal case in proceedings held for the purpose of removal by means of gathering evidence (that may be possibly from a decades-old offense) to prove his point that his state marijuana conviction does not constitute an aggravated felony.

As AMICI, the NIJC and some other fellow entities that offer direct legal aid to immigrants in custody are in support of the position taken by the Petitioner and urge the Court to reject the rule adopted by the Fifth Circuit ...