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A man here in Georgia was stopped by the police who then found 1.3 grams of marijuana Little did he know that he would soon face deportation for this small amount of marijuana. Georgia has limited tolerance when it comes to drugs, and the State believed the man possessed marijuana with the intent to distribute it. His options were to plead guilty to drug distribution or face a much harsher sentence after trial. However, even though his plea would not result as a conviction in criminal court if the Defendant successfully completed a period of probation, the man was unfortunately not a U.S. Citizen which limited his options significantly. Any admission of guilt is considered a conviction in Immigration Courts. A conviction for drug distribution almost always means mandatory deportation as an “aggravated felony.” Two years later, immigration authorities detained him to begin removal/deportation proceedings. After battling with Immigration for years, the United States Supreme Court finally held that this man was not automatically subject to deportation for a “drug trafficking offense.” The Supreme Court said that not every marijuana distribution offense rise to the level of being an “aggravated felony.” There would be no deportation for this small amount of marijuana. The case is Moncrieffe v. Holder.

Mr. Moncrieffe is originally from Jamaica, but has legally lived here in the U.S. for many years. His lawyers faced the dilemma of determining whether a guilty plea might make the person subject to removal or deportation. It is unknown whether Mr. Moncrieffe’s lawyer gave him the right advice or not, but he probably entered into the best he deal he could get. Nonetheless, Immigration and Customs Enforcement (ICE) was ready to deport him for a deal on a minor offense that called for no jail time and expungement.

Under the Immigration and Nationality Act, a drug distribution crime falls into the category of an”aggravated felony.” This category of crimes makes it almost impossible for a noncitizen to avoid removal. A noncitizen convicted of an “aggravated felony” is not only deportable, but also is not eligible for discretionary relief from deportation. An “aggravated felony” includes anything that is the “illicit trafficking in a controlled substance.” To understand the Court’s ruling, it is also important to realize that pursuant to the federal drug laws, marijuana distribution is a felony, but if it only involves “small amounts” that are distributed for no remuneration the offense is merely a misdemeanor.

Justice Sonia Sotomayor wrote for the majority in the 7-2 opinion. Justice Sotomayor noted that under Georgia law, marijuana distribution encompasses a range of conduct from social sharing to distribution of larger amounts. She also noted the constant issue of how to categorize a person’s prior offenses. Using the “categorical approach,” courts examine the state’s statutory language of the conviction involved and not the facts underlying the case found in police reports or elsewhere. In using this approach, the Immigration Court assessing the impact of a prior conviction presumes that the conviction rested upon nothing more than the conduct or state of mind criminalized by the state statute. After using this approach, a Judge is then supposed to determine whether even those acts are encompassed by the generic federal offense that is similar to the state crime at issue.

Justice Sotomayor then turned to how drug offenses are analyzed to see if they fall into the “aggravated felony” category. She said that a state drug offense must meet two conditions: it must proscribe conduct that is an offense under the federal drug laws, and the federal drug laws must “necessarily” prescribe felony punishment for that conduct. Although possession of marijuana with intent to distribute is clearly a federal crime, as noted above it turns into a misdemeanor when it involves only a small amount distributed for no remuneration. The Georgia drug distribution statute includes people (like Mr. Moncrieffe here) who had small amounts of weed with no intent to share or, more importantly, request money in exchange for sharing. Using the categorical approach, federal courts must assume nothing more than what is criminalized by the statute and cannot elevate this offense be the “aggravated felony” that almost always boots a person out of our country.

This is an example of the complexities involved when defending clients who are not citizens. I’d bet Mr. Moncrieffe would suggest that hiring an attorney with true knowledge of both the criminal and immigration laws is key.