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Thread: Blogging: Moncrieffe v. Holder: It Is (or Must Be) Necessarily So by Lory Rosenberg

  1. #1

    Blogging: Moncrieffe v. Holder: It Is (or Must Be) Necessarily So by Lory Rosenberg

    Moncrieffe v. Holder: It Is (or Must Be) Necessarily So


    Lory D. Rosenberg

    Moncrieffe v. Holder: It Is (or Must Be) Necessarily So

    The Supreme Court held 7-2 in Moncrieffe
    v. Holder,

    11–702 (April 23, 2013)
    that, "If a noncitizen’s conviction for a mari*juana
    distribution offense fails *to establish
    that the of*fense involved either remuneration or

    more than a small amount of marijuana, the conviction
    is not for an aggra*vated felony under the INA."



    Moncrieffe case involves the
    aggravated felony definition of a conviction involving “illicit
    trafficking in a controlled substance,” which “includ[es] a drug trafficking
    crime (as defined in section 924(c) of title 18).” *INA § 101(a)(43)(B).

    In turn, 18 U. S.
    C. §924(c)(2) defines “drug trafficking crime” to mean “any felony punishable
    under the Controlled Substances Act [(CSA)]. . . ”. *


    issue before the Court in Moncrieffe *v.
    was whether the statutory provisions in the INA requiring removal
    and precluding the Attorney General from granting discretionary relief from
    removal to an aggravated felon, apply to an individual convicted under a state
    statute that prohibits "the social sharing of a small amount of marijuana?"[1] Moncrieffe v. Holder at 1. *Put another way, does INA § 101(a)(43)(B), the
    aggravated felony category for illicit trafficking in a controlled substance,
    necessarily encompass every conviction of
    possession of marijuana with intent to distribute without regard to the amount
    and whether remuneration was involved, and does such a conviction “nec*essarily”
    involve conduct punishable as a felony under the CSA? Moncrieffe at 7.


    The Court held that
    conviction of possession of marijuana with intent to distribute under a state
    statute encompassing conduct that is treated as a federal misdemeanor pursuant to
    an exception under the sentencing section of the Controlled Substance Act,
    cannot be an aggravated felony.* Unequivocally
    endorsing the categorical approach and reaffirming the limited nature of the
    few exceptions articulated in earlier opinions, the Court addresses the
    Government's objections and proposals, dismissing them as exaggerated and
    unfounded.* The Court's opinion strongly
    discourages "mini trials" and other deviations from the categorical
    approach. *Moreover, the Court* appears to adopt a single categorical
    determination* that a conviction is not
    an aggravated felony as dispositive for all purposes in a removal proceeding.


    This blog, containing some
    of the highlights of the Court's opinion, does not purport to offer an
    exhaustive analysis of the subject matter, *nor to constitute a comprehensive practice
    advisory.* Please read the Court's
    opinion in its entirety.*


    The Court's opinion in Moncrieffe v. Holder establishes that to
    constitute an aggravated felony under INA
    § 101(a)(43)(B), *a* state drug conviction must “necessarily” proscribe conduct that is an
    offense under the CSA, and the CSA must “necessarily” prescribe felony
    punishment for that conduct. Moncrieffe
    v. Holder
    at 6.* Under the
    categorical approach, *the elements in
    the state statute of conviction *must
    correspond point by point to a generic federal defini*tion of a corresponding
    aggravated felony. *The mere fact of a
    conviction for possession with intent to distribute marijuana, standing alone,
    does not reveal whether either remuneration or more than a small amount of
    marijuana was involved. Consequently, without more, one cannot determine
    whether the conviction amounts to an offense that is comparable to a federal
    felony and punishable under the CSA.*


    Supreme Court ruled that rather than assume that any conviction of* marijuana distribution must be a felony
    involving illicit trafficking in* a
    controlled substance,* in which case the
    offender may attempt to demonstrate that the conviction was for a lesser
    offense and not an aggravated felony, the presumption is more properly
    reversed.* Cf. Matter of Castro-Rodriguez, 25 I&N Dec. 698** (BIA 2012), **Moncrieffe
    at 15. *Accordingly, "[i]f a *noncitizen’s conviction for a marijuana distribution offense fails to establish *that the offense involved either remuneration
    or more than a small amount of marijuana, it is not an aggravated felony under
    the INA." Moncrieffe, supra. at (emphasis added).


    key phrase in this holding is "non-citizen's conviction . . . fails to
    . . ." (emphasis added).*
    Examination of the conviction is determinative; the nature of the
    conviction as defined in the state (or federal) statute and demonstrated by the
    criminal court record is controlling. **As
    the Supreme Court explained, "the INA asks what
    offense the noncitizen was 'convicted' of, 8 U. S. C. 1227(a)(2)(A)(iii), not
    what acts he committed. '[C]onviction' is 'the relevant statutory hook.' 4
    [footnote omitted]" Moncrieffe,
    at 6 (citing Carachuri-Rosendo v. Holder, 560 U. S. ___, ___ (2010) (slip op., at 16); see United States ex rel. Mylius v.
    210 F. 860, 862 (CA2 1914)).


    Approach Under Moncrieffe


    Moncrieffe, the Supreme Court
    unequivocally has endorsed the propriety of the categorical approach in
    construing the conviction of an offense claimed to constitute an aggravated
    felony. *Following a “categorical
    approach” means determining whether the state offense of conviction is
    comparable in nature to a generic federal offense that implicates an aggravated
    felony offense listed in the INA. *Moncrieffe, supra. *at* 4-5 (citing
    Nijhawan v. Holder, 557 U. S.* 29, 33–38 (2009); Gonzales v. Duenas-Alvarez, 549 U. S. 183, 185–187 (2007). *


    Supreme Court emphasized strongly that it does not consider the facts
    underlying the particular case, but evaluates whether “the state statute
    defining the crime of conviction” categorically fits within the “generic”
    federal definition of a corresponding aggravated felony. Moncrieffe at 5 (citing Duenas-Alvarez
    at 186 (in turn citing Taylor *v. United States, 495 U. S. 575, 599–600 (1990)). *Indeed, "[w]hether the noncitizen’s actual
    conduct involved such facts 'is quite irrelevant.' United States ex rel. Guarino v. Uhl, 107 F. 2d 399,
    400 *(CA2 1939) (L. Hand, J)." Moncreiffe at 5.


    Court ruled that the evidence in the record must “‘necessarily’ involve[] . . . facts equating to [the] generic
    [federal offense].” Shepard v. United
    , 544 U. S.
    13, 24 (2005) (plurality opinion) (emphasis added). This mention of the
    evidentiary record refers to the "modified categorical approach," an
    examination of the court record permitted when the statute of conviction is
    divisible or ambiguously refers to more than one offense and the specific crime
    of conviction cannot be determined from the elements of the statute alone. Id.* The Court differentiates the outcome in a "hypothetical inquiry" situation, which it overruled
    in Carichuri-Rosendo, emphasizing
    that it's “more focused, categorical inquiry” in this case addresses whether
    the record of conviction of the predicate offense necessarily establishes
    conduct that the CSA, on its own terms, makes punishable as a felony. Id., at
    ___ (slip op., at 16).


    *the Court cautions that when the record
    provides nothing more, "we must presume that the conviction “rested upon
    [nothing] more than the least of th[e] acts” criminalized, and then deter*mine
    whether even those acts are encompassed by the generic federal offense. Moncrieffe, *at 5 (citing Johnson v. United States, 559 U. S. 133, 137 (2010);* Guarino, 107 F. 2d, at 400). Thus, the
    least of the acts covered by the statute of conviction must necessarily constitute an aggravated


    Furthermore, the Court
    ruled that not only must the state offense of convic*tion meet the “elements”
    of the generic federal offense defined by the INA, but the CSA must necessarily punish that offense as a
    felony. Moncrieffe, supra, at 10, 13. *The Court stated plainly, "[i]n other words, to satisfy the categorical approach,
    a state drug offense must meet two conditions: It must “necessarily” proscribe conduct that is an offense under the CSA,
    and the CSA must “necessarily
    prescribe felony punishment for that conduct." Moncrieffe at 6.


    Punishable As A Felony Under
    the CSA


    In *Lopez v. Gonzales, 549 U. S.
    47, 60 (2006), *the Court* ruled that a “state [controlled substance] offense
    constitutes a ‘felony punishable under the Controlled Substances Act’ only if
    it proscribes conduct punishable as a felony under that federal law.” [2] Moncrieffe, supra. at
    3.* Notably,* the CSA includes an exception to the
    punishment of all marijuana offenses as felonies, providing that

    “ 'any person who vio*lates
    subsection (a) . . . by distributing a small amount of marihuana for no remuneration
    shall be treated as' a simple drug possessor,

    21 U. S. C. §844, which for the
    Court's purposes means as a misdemeanant [footnote
    omitted]." *Thus, it does not necessarily involve conduct punishable
    as a felony.


    it's April 2013 opinion in Moncrieffe, the
    Supreme Court now has rejected the Government's attempt to characterize a
    low-level drug offense as “illicit trafficking in a controlled substance,” and
    thus an “aggravated felony," for the third time in 7 years. Writing for
    the majority, Justice Sotomayor pointed out bluntly that "[O]nce again we
    hold that,


    • "the
      Government’s approach defies “the ‘commonsense conception’” of these terms. Carachuri-Rosendo,
      560 U. S., at ___ (slip op.,
      at 9) (quoting Lopez, 549 U. S., at 53) . . .

    • "[s]haring a
      small amount of mari*juana for no remuneration . . . “does
      not fit easily into the ‘everyday un*derstanding’” of *“trafficking,” which “‘ordinarily . . . means some
      sort of commercial dealing.’” Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez,
      549 U. S.,
      at 53–54). . . . [and]

    • "it [is not]sensible that a state
      statute that criminalizes conduct that the CSA treats as a misde*meanor should
      be designated an “aggravated felony.”


    Moncrieffe at 21-22.


    As the Court states,
    "[t][he only way to know whether a marijuana distribution offense is 'punishable
    as a felony' under the CSA, Lopez, 549 U. S., at 60, is to know whether
    the conditions described in paragraph (4) are present or absent." Moncrieffe at 9. In the context of a felony punishable
    under the Controlled Substances Act, where the
    state statute covers conduct *that may be
    a felony or *a misdemeanor, but the
    record does not specify the conduct that constitutes the basis of the conviction,
    Mr. Moncrieffe's conviction could correspond to either the CSA
    felony or the CSA misdemeanor.* *The Moncrieffe
    Court ruled that ambiguity on this
    point means that the conviction did not “necessarily
    involve facts that correspond to an offense punishable as a felony under the CSA.
    The Court concluded that "[u]nder the categorical approach, then, Mr. Moncrieffe
    was not convicted of an aggravated felony."* Id. at 9.


    the Court* acknowledged that
    consideration of the sentencing* exception
    in the CSA may permit some offenders to *avoid
    aggravated felony status by operation of the categorical approach. *At the same time, the Court rejected the Government’s
    objection to that under inclusive result as "little more than an attack on
    the categorical approach itself.." Moncrieffe
    at 21.* The Court stated directly that,
    "[w]e prefer this degree of imperfection to the heavy burden of re litigating
    old prosecutions. See supra, at
    15–16. And we err on the side of under inclusiveness because ambiguity in
    criminal statutes referenced by the INA
    must be construed in the noncitizen’s favor. See Carachuri-Rosendo, 560 U. S.,
    at ___ (slip op., at 17); Leocal v.
    , 543 U. S.
    1, 11, n. 8 (2004)."


    Categorical Aggravated Felony Determination


    the Court's opinion appears to reasonably resolve the applicability of the results
    of the initial categorical assessment in determining statutory eligibility for
    relief from *removal.** Early in the Moncrieffe opinion, the Court refers to a
    related but different circumstance in which it's decision in "Carachuri-Rosendo construed a different
    provision of the INA that concerns cancellation of removal, which also requires
    determining whether the noncitizen has been “convicted of any aggravated felony.”
    8 U. S.
    C. §1229b(a)(3). *The Court states* "Our analysis is the same in both
    contexts," strongly suggesting that it finds the initial categorical
    determination binding in all phases of the case. Moncrieffe at 6,* note 4.


    addition, when responding to the government's concerns that the Court's
    endorsement of the categorical approach may result in noncitizens experiencing
    greater latitude under the INA, the Court addresses the relief phase of removal
    proceedings as following naturally from the initial categorical determination
    that a conviction is not an aggravated felony. Appropriately, there is no* distinction between the categorical
    determination already made and the noncitizen's need to establish eligibility for


    the *Court addresses the impact
    of* a noncitizen's ability to avoid
    the* imposition of the aggravated felony
    bars and preclusions after such a categorical determination, ruling that such *treatment "does not mean escaping
    deportation . . . . It means only avoiding mandatory removal. *Moncrieffe at*** (citing Carachuri-Rosendo, 560 U. S.,
    at _ (slip op., at 17). **The Court
    recognizes that "[a]ny marijuana distribution offense, even a misdemeanor,
    will still render a noncitizen deport*able as a controlled substances offender.
    8 U. S.
    C. §1227(a)(2)(B)(i)," but that *"the
    *noncitizen may seek relief from removal
    such as asylum or cancellation of removal, assuming he satisfies the other
    eligibility criteria. §§1158(b), 1229b(a)(1)–(2)."* Moncrieffe
    at* 19-20.


    respect to the nature of the conviction, eligibility for relief appears to be
    presumed by the Court, noting that "those forms of relief are
    discretionary. The Attorney General may, in his discre*tion, deny relief if he
    finds that the noncitizen is actually an active drug trafficker.* . . just as he may deny relief if he
    concludes the negative equities outweigh the positive equities of the
    noncitizen’s case for other reasons." Moncrieffe,
    at 20-21.


    this potentially far reaching breakthrough in the standard for construing the
    impact of a criminal conviction on eligibility for discretionary relief, the
    Court's opinion reinforces numerous valuable principles that apply to the
    construction of statutory language and application of the categorical approach
    in construing criminal convictions in the immigration law context. *This rich opinion is one well-worth reading
    and studying for your client's benefit.

    [1] Conviction of* an
    offense classified as an* aggravated
    felony not only renders a noncitizen deportable, pursuant to §1227(a)(2)(A)(iii),
    but also ineligible for asylum, and cancellation of removal under* §§1158(b)(2)(A)(ii),(B)(i); §§1229b(a)(3),
    (b)(1)(C), and other discretionary forms of relief from removal.


    A noncitizen’s conviction of an offense that the Controlled Substances Act
    (CSA) makes punishable by more than one year’s impris*onment will be counted as
    an “aggravated felony” for immigration purposes because *a “felony” is an offense for which the
    “maximum term of imprisonment authorized” is “more than one year.” 18 U.S.C. §3559(a)(5).* *Moncrieffe, supra. at 2.

    About The Author

    Lory D. Rosenberg is an award-winning attorney and owner of IDEAS Consultation & Coaching, LLC, a
    unique immigration law consulting and mentoring practice providing
    high-achieving immigration lawyers, leaders and businesses with comprehensive
    analysis, strategy, expert opinion, and collaboration, so they can successfully
    obtain visa approvals and lawful permanent residence, defend against removal,
    and win appeals for their clients despite complex and challenging
    circumstances.  Ms. Rosenberg is a
    national speaker and former adjunct professor, who served from 1995-2002 as an
    appellate immigration judge on the Board of Immigration Appeals. She is co-author
    of the leading treatise, Immigration Law and Crimes, was a featured
    columnist for Benders Immigration Bulletin (2002-2007, and has extensive
    experience as a legal analyst, practitioner, writer, trainer, non-profit
    director, litigator, policy advocate, and decision-maker involving immigration
    law and policy. Her website is

    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.

  2. #2
    Thank you, Lory, for sharing your analysis; and thank you, Justice Sotomayor for re-emphasizing the usefulness of common sense meanings as the primary tool for statutory construction. It is nonsensical that something that is not even a federal felony can be the basis of shutting down even a shot at discretionary, federal relief. This holding means that thousands of people will at get a chance to tell their stories before a judge, and let the court do it's job to balance the equities. Will mean more merits hearings--but isn't that the place where good immigration attorneys one both sides are honed? Can't see this as anything but good news for would-be immigrants and immigration advocates.

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