Is Distribution Of Marijuana An Aggravated Felony Under the INA?


Posted on May 2nd, 2013, by Susannah Nichols in Immigration Law. Comments Off

On April 23, 2013, the U.S. Supreme Court ruled in the case of Moncrieffe v. Holder. Adrian Moncrieffe is a Jamaican national who came to the United States at the age of 3. During a 2007 traffic stop, police found 1.3 grams of marijuana in Mr. Moncrieffe’s car. This is roughly the amount of 2-3 marijuana cigarettes. In his Georgia criminal case, Mr. Moncrieffe agreed to a plea for possession of marijuana with intent to distribute. He received no jail time and was placed on probation. As a result of this conviction, Mr. Moncrieffe was placed in immigration proceedings ultimately resulting in his deportation. The Board of Immigration Appeals agreed with the Immigration Judge and the 5th Circuit denied review. The Supreme Court, in a 7-2 decision, ruled that his marijuana charge was improperly classified as an aggravated felony under the Immigration and Naturalization Act (“INA”).

The classification of convictions as aggravated felonies is important under the INA. A non-citizen may be found deportable based on a number of actions including visa overstays or criminal convictions. Those who are found deportable may still be eligible for certain discretionary forms of relief such as cancellation of removal or certain waivers. For the non-citizen that is convicted of a crime classified as an “aggravated felony” most forms of discretionary relief are unavailable.

A drug trafficking conviction is considered to be an aggravated felony if it falls under the federal Controlled Substances Act (“CSA”) and is punishable by more than a year imprisonment. Under the CSA, the Georgia law under which Mr. Moncrieffe was convicted corresponds to both a felony and a misdemeanor. Mr. Moncrieffe argued that such a small amount of marijuana without any remuneration (payment) should qualify as the CSA misdemeanor. The government took the position that all trafficking offenses should be classified “presumptively” as felonies under the CSA.

When most of us think of the term “trafficking” we tend to think of a large amount of drugs exchanged for a profit. In instances like Mr. Moncrieffe’s, a person could be sharing a small amount of marijuana with a friend and have this result in a trafficking conviction in immigration court. The Supreme Court found that when a conviction for distribution of marijuana fails to involve payment or more than a small amount of marijuana, it may not be classified as an aggravated felony under the INA.

This ruling opens up an opportunity for many non-citizens who have been convicted under statutes similar to Georgia’s distribution statute. About half of the states have marijuana statutes similarly worded which will allow those in Mr. Moncrieffe’s position to apply for deportation relief.

This ruling also allows for the potential for bond. Those who are charged with aggravated felonies are subject to mandatory detention while in immigration proceedings. This ruling will allow those who are placed in deportation proceedings for marijuana offenses similar to Mr. Moncrieffe’s to be eligible for bond while their cases are pending.

It is important to understand that this ruling does not mean that those with distribution convictions will escape deportation. They will only be eligible to apply for certain types of deportation defenses which were previously unavailable. Whether or not an individual is ultimately ordered deported will depend on the facts of the particular case. Finally, while Moncrieffe v. Holder dealt with marijuana specifically, we may see the Court’s opinion be applied in other circumstances.

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About 

Susannah Nichols is an immigration attorney at Livesay & Myers, P.C. Her practice covers family-based and employment-based green cards, temporary visas, and citizenship. Ms. Nichols has a special focus on deportation cases, and has written extensively on the available forms of relief from deportation, including cancellation of removal and asylum.



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