Supreme Court Case Highlights Cruel Intersection of Immigration and Drug Laws

Tomorrow morning, the Supreme Court will hear arguments in a complicated immigration case involving how courts should determine whether a crime qualifies as an “aggravated felony.” Once the legal clutter is set aside, however, the case provides a clear example of how our nation’s immigration laws often fail to account for the most basic considerations of fairness and proportionality. If the Justices rule in the government’s favor, a lawful permanent resident with two U.S. citizen children could be deported from the country—and permanently barred from returning—for possessing less than $30 worth of marijuana.

The immigrant facing deportation, Adrian Moncrieffe, was legally admitted to the United States nearly thirty years ago when he entered with his family at age 3. In 2008, he was pulled over by a Georgia police officer and arrested for possessing 1.3 grams of marijuana, the equivalent of two to three joints. Moncrieffe pled guilty and was placed on a probation—and, had he been a U.S. citizen, would have suffered no further punishment for his crime. But because Moncrieffe never naturalized, Immigration and Customs Enforcement (ICE) commenced removal proceedings against him in 2010, alleging that he had been convicted of a “drug trafficking” crime under the immigration laws.

Why? Despite the small amount of marijuana involved, Moncrieffe was charged under Georgia law with possession with intent to distribute—an offense written so broadly as to apply both to people people who freely share small quantities with others  and to those who distribute up to ten pounds of illicit narcotics. Although no evidence was ever presented that Moncrieffe intended to sell the marijuana found in his possession, the government argued—and the U.S. Court of Appeals for the Fifth Circuit agreed—that he should be considered a drug trafficker under the immigration laws unless he affirmatively proved to the contrary.

While the issue before the Justices involves complicated questions over burdens of proof in removal proceedings, the case highlights the simple lack of common sense—and common decency—embedded in many provisions of the immigration laws. As discussed in a Washington Post story last week, lawfully present immigrants may be deported from the United States for committing minor, non-violent crimes that Congress happened to label as aggravated felonies. Regardless of the hardship their deportation would cause to themselves or U.S. citizen family members, immigrants alleged to have committed such crimes are prohibited from receiving most forms of relief from removal—such as asylum—and, once they are deported, from returning to the United States.

The case also demonstrates how immigrants who are treated as “priorities” by Immigration and Customs Enforcement (ICE) often pose little to no danger to the public at large. Under a memo issued by ICE Director John Morton in 2011, for example, any immigrant convicted of an aggravated felony is considered a “Level 1” offender—meaning they are placed first in line for deportation and will rarely, if ever, benefit from a favorable exercise of prosecutorial discretion. Even if the Supreme Court holds that Moncrieffe meets the definition of an aggravated felon under the immigration laws, it is difficult to see what benefit is gained from society at large by deporting him from the country and never allowing him to return.

When pro-immigrant advocates speak of the need for comprehensive immigration reform, their calls generally relate to the creation of a program to allow undocumented individuals to come out of the shadows. Yet also important is the need to review the growing list of aggravated felonies that make lawfully present immigrants subject to virtually automatic removal from the country. If the goal of any justice system is for the punishment to fit the crime, our nation’s immigration laws require serious re-examination.

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  1. This is why it’s so important to hire a knowledgeable immigration attorney. The laws are extremely complex. Without the proper knowledge it’s nearly impossible to use the laws to your advantage.

  2. Judy says:

    The laws are real complex, they hurt human right.

  3. John Leschak says:

    This is a very important legal issue. Certain crimes are classified as “aggravated felonies” for immigration law purposes under Immigration & Nationality Act (“INA”) 237(a)(2)(A)(iii). An immigrant convicted of an aggravated felony (“AF” for short) has virtually no relief from deportation. An AF conviction will prohibit the alien from applying for cancellation of removal, voluntary departure, asylum or withholding of removal.

    Furthermore, under INA 212(a)(9)(A)(i), an immigrant convicted of an AF and subsequently deported will be barred from re-entering the United States forever. See 8 U.S.C. § 1182(a)(9)(A)(i) (“Any alien who has been ordered removed … who again seeks admission within 5 years of the date of such removal … or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.”). Normally, an alien who is deported can re-enter the U.S. after 10 years, or sooner if they can get a waiver. INA 212(a)(9)(A)(ii), 8 USC 1182(a)(9)(A)(ii). Defense counsel may advise clients that if they are deported, they will only be barred from re-entering the US for “a couple of years.” This is incorrect. A standard deportation will bar legal re-entry for 10 years, and a person deported for an AF will be forever barred from re-entering.

    Given the extremely harsh consequences of an AF conviction, it is essential to understand which crimes will constitute AFs. “Aggravated felony” is specifically defined by INA 101(a)(43). INA 101(a)(43) consists of a list of offenses which includes: “(B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18).” This is the provision at issue in the case now before the court.

  4. Richie says:

    No doubt. There will always be hardship wether on administrative, constitutional or international human rights grounds. The issue now is the standard of review and what constitute “EXTREME” hardship when applied on a case-by-case scenario.

    I am of the believe that the threshold shouldn’t be that stringent or cumbersome to decipher. I write to opine that the immigration judge, jurist or, any reasonable fact finder confronted with the extreme hardship scenario is to first determine wether the banishment of the LPR aggravated felon compounded with the hash consequences accrued to his or her left behind family will rise to a level that implicates the Double Jeopardy Clause of the 5th Amendment of the United States Constitution. And if it does, the fact finder or reasonable jurist should then proceed to determine wether the ramifications or consequences that would be suffered by the LPR and his left behind family exceeds that of a US citizen whose rights were violated under the Double Jeopardy Clause.

    One might suggest analogising the extreme hardship in immigration context with the double jeopardy is inapt and inapplicable because the former will always be viewed in a non-constitutional dimension, the principle behind will forever remain the same. Alas! The 5th Amendment prevails.

    Though, the immigration judges hands are tied in the LPR aggravated felon case, I therefore upon the legal and political pundits as well as the advocates for immigration reforms to try as much as possible to tie the double jeopardy onto the extreme hardship argument to facilitate this process to a success

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